Widely hailed as a success, the Singapore Convention on Mediation entered into force in September 2020. It provides the framework for negotiated settlements to be enforced in the same manner as arbitral awards, thereby obviating one impediment to mediation—the fear that a resulting agreement will not be honoured. Yet it is not clear that an increased number of mediations, and in particular those involving state-owned entities, will necessarily follow in the wake of the Convention. Other barriers—political, institutional, social, practical, and even criminal—constrain state-owned entities from settling cases, and influence their strategy and tactics in commercial and investment arbitrations as well. What are these obstacles, and can they be surmounted to facilitate the negotiated settlement of more high-stakes disputes?

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Constraints on the Engagement of State-Owned Enterprises in Mediation and Arbitration

  • Andrea K. Bjorklund

摘要

Widely hailed as a success, the Singapore Convention on Mediation entered into force in September 2020. It provides the framework for negotiated settlements to be enforced in the same manner as arbitral awards, thereby obviating one impediment to mediation—the fear that a resulting agreement will not be honoured. Yet it is not clear that an increased number of mediations, and in particular those involving state-owned entities, will necessarily follow in the wake of the Convention. Other barriers—political, institutional, social, practical, and even criminal—constrain state-owned entities from settling cases, and influence their strategy and tactics in commercial and investment arbitrations as well. What are these obstacles, and can they be surmounted to facilitate the negotiated settlement of more high-stakes disputes?