It became clear that the treatment and applicability of SMIS should not focus on the timing of the appointment of an arbitrator in order to confer the award of arbitration on the settlement contract. It is time to renounce the legal fiction that emerged between approval awards that were handed down after – unlike in the past – the engagement of arbitration proceedings. The terms of these agreements are mainly taken without court oversight and the court has little or no influence over the content and form of the transaction agreement. The date of appointment of the Tribunal therefore has only a limited impact on the content of an IMSA. Despite the results of the UNCLOS process, it is clear that the current means of enforcing SMIIs are insufficient and it is interesting to have a more effective and cohesive method at the international level for the recognition of these agreements abroad. Whether, when and how this will happen – and how such an instrument would co-exist with other international dispute resolution mechanisms such as arbitration – will only be decided in due course. The working group still needs to do considerable work to agree on a framework, starting with fundamental concepts: defining the scope and type of agreement to be developed; the development of a functional definition of “mediation/conciliation of international trade”; Defining the form and substance requirements for IMSA; due process requirements. Even if the Committee reaches consensus, many obstacles remain before a convention (or other instrument) is developed and finally ratified. Some states have passed fast-track laws in which transaction agreements are transformed into binding arbitration judgments or awards.
The Swiss Code of Civil Procedure (Article 217) and the Italian Decree on Mediation in Civil and Commercial Disputes (28/2010) are both good examples of this type of right of authorisation. Whether the legislation in question covers the IMSA will depend to a large extent on the legislation in question. Most participants in the UNCIT working group appear to support an international mechanism for IMSA. This view is not universal: some participants expressed concern about the lack of a fundamental difference between inconclusive agreements and agreements arising from mediation or conciliation. In other words, the legal status of an IMSA is no different from any other contract and, therefore, it is doubtful that such contracts should have special status. He is a member of numerous dispute resolution bodies, including the National Panel of Arbitrators of the American Arbitration Association. He also appears on the mediation facilitation and discovery panels of several superior courts. However, to avoid this issue, the parties to the mediation should first initiate arbitration proceedings, after which they can immediately suspend arbitration in favour of mediation. If mediation is successful, imSA can then be counted as binding consent.
If mediation fails, the parties will be able to resume arbitration. This method is the origin of provisions such as SIAC`s Arb-Med protocol. Over the past 20 years, mediation has become a common way of resolving international trade disputes. There are now a large number of international mediation centres, such as the ICC International Centre for ADR and the Singapore International Mediation Centre. The method of granting leave involves obtaining a settlement after the arbitration process has been opened and the invitation for the arbitrator to register the parties` IMSA as an approval decision. As has already been said, approvals are generally considered enforceable under the New York Convention.