VOLUME
3:1
JUNE 2016
1-161
  • GLOBALISING MEDIATED SETTLEMENT AGREEMENTS

    Laurence Boulle and Jay Qin
Abstract

Economic globalisation involves incremental reductions in legal barriers to trade, investment and finance activities among nation states for the benefit of corporate and state entities. The Rule of Law, for its part, implies the subservience of social and economic activities to substantive and procedural legal rules and processes.
A traditional dimension of the Rule of Law in dispute resolution contexts is the objective interpretation and enforcement of legal rules and principles through independent courts, tribunals or similar institutions with recognised authority. International conventions extend these principles to some degree across national borders. Mediated settlement agreements (MSAs), however, have enjoyed no higher legal status than other negotiated settlements requiring conflict of laws principles or various legal fictions to secure their enforcement in foreign jurisdictions.
For some time, consideration has been given to the development of an international treaty, similar to the New York Convention, to support the binding nature and enforceability of MSAs across national borders. This article examines aspects of the United Nations Commission on International Trade Law project on this topic in light of the policy and practical questions which arise in this area, and in the context of broader globalisation imperatives.

Keywords
globalisation; Rule of Law; mediated settlement agreements; cross-border; UNCITRAL; enforceability
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Introduction

This article interrogates the interfaces between globalisation, the Rule of Law and mediation, with particular reference to the cross-border enforcement of international mediated settlement agreements (MSAs) entertained and encouraged by the principles and institutions of economic globalisation. The subject matter of the article is analysed with reference to the policy and practice questions which arise within the spheres of mediation and conciliation in their international dimensions, with reference to the current United Nations Commission on International Trade Law (UNCITRAL) project on this topic. Here the Rule of Law predicament concerns the capacity of the global legal system to give effect in diverse national jurisdictions to parties’ consensual mediated agreements in modes that are authoritative, binding and efficient for the respective parties.

Attention is first given to key terminological conundrums in this area, given the difficulties of some concepts moving easily and unambiguously across national borders, not to mention diverse cultures. This is followed by an outline of the dominant themes in the topic, current arrangements on mediation enforceability, policy considerations in this area, the current UNCITRAL project, scoping considerations relating to the mooted convention and reference to the evidential basis for further developments. The article concludes with the authors’ recommendations on the scope and operation of systems for the further development of cross-border enforcement of MSAs.

With regard to key concepts, the term globalisation is used here in its predominant economic, as opposed to political or social, sense. This denotes the internationalisation of commerce, trade, investment and financial activity through incremental reductions in national legal barriers to these transactions among nation states and the liberalisation of commercial activities among their respective corporations, state entities and individuals. Economic globalisation denotes, inter alia, the following principles and policies in the global political economy: the primacy of economic policies over political decisions, the extrapolation of domestic market activities to the global sphere, extensive freedom of movement for goods, services and capital across national borders, and the predominance of transnational corporations as the “citizens” of a globalised world. While there is contention over the exact nature and scope of the globalisation project, and its implications for national democracy, globalisation has, in broad terms, established and continues to foment the denationalisation of much economic activity, with commensurate reductions in the powers of nation states and their policy-making capacities. Globalisation also promotes the direct and indirect unification and harmonisation of domestic legal regimes in relation to many economic and financial activities, and to a lesser extent to dispute resolution procedures.