Supporting Party Autonomy in the Enforcement of Cross-Border Mediated Settlement Agreements: A Brave New World or Unchartered Territory?
Max Planck Institute Luxembourg Summer School-International Association of Procedural Law Summer School 2018: Privatizing Dispute Resolution and Its Limits (Nomos, 3rd edition)
29 Pages Posted: 3 Jun 2020
Date Written: July 4, 2018
The last decade has seen a palpable rise of domestic and international instruments to facilitate the enforcement of cross-border mediated settlement agreements. Most recently, the United Nations Commission on International Trade Law (UNCITRAL) has agreed to create a multilateral convention and to amend the Model Law on International Commercial Conciliation to facilitate cross-border enforcement of commercial disputes via mediation.
The mediation process is one of many ways in which dispute resolution has been privatized and taken out of the formal court system. The first wave of privatization probably commenced with the growth of arbitration, leading to the wide ratification of the New York Convention. Mediation now appears to be following the same path treaded by arbitration, spawning the growth of mediation regulations, professionalization systems and now enforcement instruments. Both dispute resolution processes allow the parties to participate more fully in comparison to litigation. Party autonomy is a common attraction shared in both these processes. However, party autonomy plays a much more integral role within mediation. Under most mediation frameworks, the disputing parties not only choose their mediator and type of mediation process, but also have to freely consent to the mediated settlement. Parodoxically, the legitimacy of mediation “requires the use of the very litigation system which the parties eschewed in the first place”. The exercise of party autonomy within this process has to be validated through the courts’ willingness to enforce the mediated agreement across borders. Mediated settlement agreements require the courts’ support by ascribing legal effect to them when the need arises. The efforts by UNCITRAL to create an expedited cross-border enforcement mechanism thus raise the crucial question about how best the litigation system can support the exercise of party autonomy within mediation.
This article discusses both the great potential and likely difficulties faced in giving weight to consensual agreements reached through the private mediation process. Part II explores the need for a mechanism to be created to support autonomy, while Part III provides an overview of the key provisions of the convention. Two areas of tension will then be explored. Part IV discusses the difficulties in giving effect to party autonomy amidst the plurality of domestic and international mediation standards; and Part V examines the tension between respecting party autonomy and giving weight to the enforcing state’s public policies. It will be argued in Parts IV and V that the challenges arising from the proliferation of enforcement regimes are not insurmountable. The brave new world of cross-border enforcement may bring about some unavoidable challenges. Nevertheless, the very effort to facilitate international enforcement provides the much-needed impetus to overcome these challenges by encouraging greater convergence of mediation standards and more candid discussion about managing the relevant tensions.
Keywords: international mediation, enforcement, mediated settlement agreement, singapore convention, autonomy
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