For all the interesting work currently undertaken by UNCITRAL on mediation, ‘rapid action’ is not perhaps the phrase one would use to describe what is happening. It is reviewing, as part of its remit, whether there should be a mechanism in international trade law which ensures standard legal enforceability across borders for mediated settlement agreements. The Working Group has been meeting twice a year for two years alternating between the Vienna and New York United Nations offices.

Of course, it is not entirely fair to expect rapid action when the outcomes of such proceedings have to work long term and not be capable of melting easily under the heat generated in potential future contentious legal proceedings. The discussions are thoughtful and impressive to observe as numerous national delegations debate the drafting minutiae, as well as principle for what might be an appropriate legal framework for recognition and enforceability of mediated settlements.

The heart of this debate is whether mediated outcomes should have a similar status given to arbitral awards under the longstanding UNCITRAL Convention, which allows countries to sign up to the recognition and enforceability of international arbitral awards. The logic is obvious for arbitration at one level, ‘final’ resolution in an international commercial dispute, would be much less appealing if one could not guarantee that outcomes would be recognised by different national courts, and there are still some major jurisdictions where this is a major headache for companies operating across borders. A lack of finality undermines the rule of law and, in turn, international trade. Some 153 countries have signed up to the ‘New York Convention’, which sets out the legal framework by which this recognition and enforceability happens for arbitral awards.

Jan-Mar 2018 issue

Centre for Effective Dispute Resolution