Originally From World Arbitration and Mediation Review (WAMR)

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International Business Mediation: The Rush to Rule-Making
by Lucy V. Katz1
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 jurisdiction2 or contract law.3 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 dispute. The parties have ties to multiple jurisdictions; the contracts, which today may be executed electronically, are negotiated across national boundaries; the facts leading to a breach may or may not be easy to locate within the borders of any single state. Court jurisdiction may be