Commercial businesses generally seek to make profit. After the COVID-19 pandemic, global trade in goods and services, according to UNICTAD Key Statistics and Trends in International Trade 2023, was on the sphere of 30 trillion United States Dollars.
Although undesirable, it is inevitable with this volume of transnational trade, that some disputes will arise. Some of those disputes may be settled amicably through, for example, alternative dispute resolution (referred to in practice as ‘ADR’), such as expert determination, mediation and negotiation, and others may be finally resolved by judicial proceedings or arbitration . This brief note is about international commercial mediation. If you want to read about international commercial arbitration, please click here. If you want to read about international investment arbitration, please click here.
From experience, unless there is a reason, businesses appreciate settling their international commercial disputes out of court or arbitration. Unlike court litigation or arbitration, mediation is a non-obligatory method to settle disputes. Mediation can be local or international, family-related or otherwise. In short, when we refer to international commercial mediation, we refer to disputes arising out of international commercial transactions. Commercial refers to, in its widest sense, any dealing with commercial nature including, without limitation, construction works, technology transfer, transportation including railways, and commercial agreements including offtake agreements.
International commercial mediation is a process, not only an appointment of a mediator. It does, generally speaking, require both, appointment and participation, in a process in a good faith attempt to settle a dispute.
Unless there is a reason, in practice, counterparties tend to settle the dispute directly through their representatives, if the attempts fails and, depending on several other factors, then they may refer the matter to mediation, in conjunction with or prior to, resorting to courts or arbitration.
If the parties have doubt whether the dispute you are facing is a ‘mediation’, ‘commercial’ or ‘international’, please send an email to [mediation@lac.ae].
The Singapore Convention on Mediation was adopted by UN in 2018
Assuming the parties reach a written settlement agreement arising out of mediation, and no reservation is made by a signatory to the Singapore Convention on Mediation, that agreement may be enforceable directly. We ask the reader to consult with Article 4 of the United Nations Convention on International Settlement Agreements Resulting from Mediation. We do believe that said Convention is a remarkable development in the enforcement of disputes arising out of international commercial disputes, whether it is based on contract or otherwise.
Arbitrator(s) main role is to render an enforceable award. To be enforceable, arbitrator(s) must take into consideration several factors, including, procedural fairness. Mediators has different function. Their role is to be in the ‘middle’. That is, to bring the parties together to assist them in the conclusion of a solution of their own. Mediators must not manipulate or induce parties. In fact, unlike arbitration or litigation, where rules do exist, whether by agreement or by law, mediation, except for limited conditions, directly intersects with trust, respect and clear intentions. As Fuller put it: “[t]he primary quality of the mediator … to induce the mutual trust and understanding that will enable the parties to work out their own rules” (Fuller, Lon L., ‘Mediation—Its Forms and Functions’, in Art Hinshaw, Andrea Kupfer Schneider, and Sarah Rudolph Cole (eds), Discussions in Dispute Resolution: The Foundational Articles (New York, 2021; online edn, Oxford Academic, 17 June 2021).
Although UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, does recommend taking into consideration the nationality of the mediator (to be mainly of a nationality other than those of the parties), the parties are free to agree to the contrary. In addition,
Although arbitrators and Mediators must act with honesty, impartiality and patience. Depending on many other circumstances, we believe that mediators
Mediators are not party representatives, nor do they participate in cronyism or lobbyism activities. They should avoid conflict of interest, during and after mediation.
If you wish to settle your dispute through cronyism or, more broadly, connections, we won’t be able to help.
If you wish to settle your dispute through lobbying, then we may be able to be engaged, provided that we are in-line with the applicable law(s). We may consult with international or public bodies or, as the case may be, associations and supervisory authorities. We may engage specialists, too. For further information, please contact: (info@lac.ae). If exceptionally accepted, it is likely that we will reject any future joint appointment to act as a mediator by the parties.
If the parties wish that we act as a mediator, please contact [mediation@lac.ae]. Kindly note that mediators must always act in a neutral and impartial manner. We act in conformity with The European Code of Conduct for Mediators and The US Model Standards of Conduct for Mediators and the laws applicable in Jordan and the United Arab Emirates. Furthermore, given that the Singapore Convention (as of October 2014 there are 14 signatories) allows each contracting state to determine the standards applicable, a broader knowledge by the mediator on the applicability of the standards in the concerned jurisdictions is advisable.
Yes – taking into consideration, culture, politics, historic believes, conspiracy theories, metropolitan lifestyle and events, tensions, identity, nationalism and others play a role.
Depending on the agreement between the parties, it is possible to go to mediation while the parties are engaged in parallel proceedings.