International Business Mediation: The Rush to Rule-Making - WAMR 2006 Vol. 17, No. 2

Author(s):

Lucy V. Katz

Page Count:

20 pages

Media Description:

PDF from World Arbitration and Mediation Report (WAMR) 2006 Vol. 17, No. 2

Published:

February, 2006

Jurisdictions:

International

Practice Areas:

Commercial Disputes,

Commodity Contracts,

International and Transnational Law,

ADR,

Mediation,

UNCITRAL Model Law

Author Detail:

Lucy V. Katz, Robert C. Wright Professor of Law, Ethics, and Dispute Resolution at Fairfield University.

PDF183.33 KB

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Description:

Originally from: World Arbitration and Mediation Report (WAMR) 2006 Vol. 17, No. 2

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Perspectives

International Business Mediation: The Rush to Rule-Making

by Lucy V. Katz

Abstract

This article reviews international mediation rules enacted by

transnational organizations, such as the United Nations Commission on

International Trade Law and the European Union, and rules adopted by

non-governmental organizations and private providers. It also examines

cultural differences in mediation globally. It suggests that, while formal

rules are converging on a similar, and largely Western, mediation model,

cultural differences may make mediation very different depending on

where it is held and on the nationality of the parties.

Introduction

Consider three international business transactions:

1. A Liberian carrier contracts with a Panamanian corporation that has its

principal place of business in Greece to transport goods from the Gulf of

Mexico to the Middle East and seeks enforcement of an arbitration award

rendered in the London Court of International Arbitration pursuant to a

dispute resolution clause in the transportation contract.

2. A Japanese carrier charters a Panamanian ship to carry Moroccan

produce to a Massachusetts business for a New York distributor and the

bill of lading includes an agreement to arbitrate disputes through the

Tokyo Maritime Arbitration Commission (TOMAC) of the Japan

Shipping Exchange, Inc.

3. A U.S. company and a Chinese utility negotiate to set up a Chinese

Foreign Investment Enterprise (FIE) to develop and operate a jointly

owned power plant in China. Subcontractors include firms from

Indonesia, Germany, and Canada, as well as the U.S. and China. The

Chinese parties demand that disputes be settled by arbitration administered

by CIETAC, the China International Economic and Trade Arbitration

Commission. The non-Chinese parties object and have suggested several

other arbitration and mediation providers.

Disputes such as these are found throughout the U.S. federal courts

and are usually classified as problems of jurisdiction or contract law.

Such cases, however, are often more interesting for what they reveal about

the context of global business than for the legal rules they establish. In

these and dozens of similar examples, there is no clear national situs of the