Globalising mediated settlement agreements

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.