The Future of International Mediated Settlement Agreements: Of Conventions, Challenges and Choices

Abstract

In 2002, UNCITRAL developed the Model Law on International Commercial Conciliation. Although at that stage there was a strong effort to develop a uniform enforcement mechanism, the ultimate conclusion was that because of the great variance in the technicalities of domestic procedural laws, harmonisation by way of uniform legislation was not feasible. Nevertheless, in 2014, the United States put forward a proposal to UNICTRAL, calling for the development of a multilateral convention on the enforceability of international commercial settlement agreements reached through conciliation, with the goal of encouraging conciliation in the same way that the New York Convention facilitated the growth of arbitration. This article considers whether such a multilateral convention is the best way forward, through an examination of both scholastic and empirical research. It also discusses the challenges that will be faced by an enforcement convention. However, before an enforcement convention comes to pass, various mechanisms are already available for parties to choose from to enforce their mediated settlements, including recording the settlement as an order of court and an arbitral award.

Keywords: Mediation, Arbitration, Med-Arb, Arb-Med, Arb-Med-Arb, Convention on Mediation, UNCITRAL