Making It a Treaty Obligation: Enforcement of Mediated Settlement Agreements Under the ARMO

Abstract

The successful conclusion of a settlement agreement by the disputing parties is considered as the core of a mediation. Under the Asia-Pacific Regional Mediation Organization (hereinafter “ARMO”), it is provided that the settlement agreements are binding upon the disputing parties, and shall be carried out in good faith. This is an indication that non-compliance with the settlement agreement will constitute a violation of the ARMO Agreement and trigger a state responsibility. This provision is an exclusive feature of the ARMO. It might also have importance in deterring a state’s non-compliance in the future, and thus enhance the legal security of the outcome reached in ARMO mediation.

There is no specific enforcement mechanism for the ARMO facilitated settlement agreements. In order to further elaborate the particularities of the ARMO, and to clarify what distinguishes it from other dispute settlement mechanisms in enforcement, this paper will discuss the ARMO enforcement issue, and provide a comparative review of the enforcement mechanism of investment arbitral awards under the International Centre for Settlement of Investment Disputes (ICSID) and issues on cross-border enforcement of mediated settlement agreements in commercial disputes.

Keywords: Asia-Pacific area, ARMO, settlement agreement, mediation, State-to-State dispute settlement, ICSID, UNCITRAL