Jaemin Lee, Mediation as a Means to Resolve State-to-State Disputes : Legal Issues for the Enhancement of Usefulness and Permeation of Mediation, The Korean Journal of International Law, Vol. 67(3) (2022), pp. 185-224.
<Abstract>
The entry into effect of the Singapore Convention in September 2020 ushered in a new dispute settlement mechanism for international commercial disputes involving companies and individuals. The convention demands enforcement, in third countries, of a settlement agreement resulting from mediation, which will help facilitate the spread and utilization of mediation among the global businesses and industries. While the scope of the convention is confined to commercial disputes, the same logic and formula could similarly apply to state-to-state disputes. In fact, some recent treaties and agreements undertake new experiments to adopt and apply mediation to settle disputes between contracting parties. This is arguably the reflection of the general consensus that inter-states disputes are equally amenable to mediation and that some disputes among states are more suitable to be resolved through Alternative Dispute Resolution (ADR) methods such as mediation.
In particular, the current global environment wherein the cherished multilateralism has been steadily weakening may find mediation more useful and appropriate considering: a growing gap between treaty texts and reality because of the fast development of technology and human activities, ever deepening fragmentation of respective branches of international law, and glaring inherent limitation of existing binding dispute settlement mechanisms to ensure effective resolution of disputes satisfying disputing parties. Mediation is believed to contribute to alleviating these structural problems of international law and dispute settlement proceedings.
In order to achieve the objective of further spreading mediation among states and enhancing states’ reliance on mediation to settle their disputes, attention needs to be directed at core legal issues in this regard. First, coordination of mediation with existing dispute settlement proceedings in treaties and agreements is critical, so that mediation does not cause unnecessary disruption in the existing proceedings. Introducing a reliable procedural guardrail to preempt an unreasonable increase of cost and duration of settling a dispute is another topic that requires careful calibration in future discussions of further systematization of mediation. If mediation is merely inserted into existing dispute settlement proceedings as another procedural layer, then the whole cost and length of time might end up increasing. Ensuring due process principles while also preserving flexibility for mediation proceedings is another critical issue to facilitate the spread of mediation. Most importantly, introduction of a legal system that ensures enforcement of the agreement between disputing states reached by mediation is important for the utilization of mediation to settle state-to-state disputes in international relations. These items may be reflected in existing treaties, or, alternatively, new treaties may be adopted to address them.
Settling inter-state disputes whiling maintaining long-term relationship is ever more important at this juncture while the global community is struggling with unilateralism, nationalism and provincialism. Mediation may offer one of the viable choices. What is needed are the systematization and elaboration of mediation proceedings adjusted for state-to-state disputes.
<Keywords>
Mediation, Singapore Convention, State-to-State Disputes, Alternative Dispute Resolution, Enforcement
Jaemin Lee, Mediation as a Means to Resolve State-to-State Disputes : Legal Issues for the Enhancement of Usefulness and Permeation of Mediation, The Korean Journal of International Law, Vol. 67(3) (2022), pp. 185-224.
<Abstract>
The entry into effect of the Singapore Convention in September 2020 ushered in a new dispute settlement mechanism for international commercial disputes involving companies and individuals. The convention demands enforcement, in third countries, of a settlement agreement resulting from mediation, which will help facilitate the spread and utilization of mediation among the global businesses and industries. While the scope of the convention is confined to commercial disputes, the same logic and formula could similarly apply to state-to-state disputes. In fact, some recent treaties and agreements undertake new experiments to adopt and apply mediation to settle disputes between contracting parties. This is arguably the reflection of the general consensus that inter-states disputes are equally amenable to mediation and that some disputes among states are more suitable to be resolved through Alternative Dispute Resolution (ADR) methods such as mediation.
In particular, the current global environment wherein the cherished multilateralism has been steadily weakening may find mediation more useful and appropriate considering: a growing gap between treaty texts and reality because of the fast development of technology and human activities, ever deepening fragmentation of respective branches of international law, and glaring inherent limitation of existing binding dispute settlement mechanisms to ensure effective resolution of disputes satisfying disputing parties. Mediation is believed to contribute to alleviating these structural problems of international law and dispute settlement proceedings.
In order to achieve the objective of further spreading mediation among states and enhancing states’ reliance on mediation to settle their disputes, attention needs to be directed at core legal issues in this regard. First, coordination of mediation with existing dispute settlement proceedings in treaties and agreements is critical, so that mediation does not cause unnecessary disruption in the existing proceedings. Introducing a reliable procedural guardrail to preempt an unreasonable increase of cost and duration of settling a dispute is another topic that requires careful calibration in future discussions of further systematization of mediation. If mediation is merely inserted into existing dispute settlement proceedings as another procedural layer, then the whole cost and length of time might end up increasing. Ensuring due process principles while also preserving flexibility for mediation proceedings is another critical issue to facilitate the spread of mediation. Most importantly, introduction of a legal system that ensures enforcement of the agreement between disputing states reached by mediation is important for the utilization of mediation to settle state-to-state disputes in international relations. These items may be reflected in existing treaties, or, alternatively, new treaties may be adopted to address them.
Settling inter-state disputes whiling maintaining long-term relationship is ever more important at this juncture while the global community is struggling with unilateralism, nationalism and provincialism. Mediation may offer one of the viable choices. What is needed are the systematization and elaboration of mediation proceedings adjusted for state-to-state disputes.
<Keywords>
Mediation, Singapore Convention, State-to-State Disputes, Alternative Dispute Resolution, Enforcement