Examining the Issue of Enforceability in Regard to the Recognition of Authority
One of the inherent problems in the enforceability of international and local mediation outcomes is the recognition of authority without prior precedent, consent or agreement between the interstate actors involved. This means that an outcome that has been mediated between two parties in one state may not necessarily be recognized in another state since states don’t have authority over the internal legal systems and policies of other states. What you have to understand is that not all outcomes mediated by a third party are necessarily in favor of one of the parties involved. In such cases, one of the parties involved in the mediation procedures may simply refuse to acknowledge the outcome of the mediation and merely ignore subsequent attempts at arriving at an adequate solution. Should both parties belong to opposite states this problem increases even more since laws involving the enforceability of mediation proceedings are often times unenforceable given the differing laws between the two states and the fact that one state will not recognize the authority of another in regards to its own local laws and policies. As Mohtashami (2008) explains, what is needed in the case of mediation is an overarching legal authority that has the ability to explicitly enforce the agreements that emerge from mediation proceedings however as of yet such an organization does not exist in the form that is needed. Unfortunately, studies such as those by Bennett (2009) indicate that the viable establishment of such an organization hinges on the necessity of states according to this entity the right to dictate an aspect of their local laws which is deemed to be impossible to achieve given the attitude of states in regarding the inviolability of its internal policies by outside states and organizations. Under the theory of realism states are the dominant actors in the international scene and as such are not subservient to the wills of international organizations. While states are willing to comply with bi-lateral and multi-lateral treaties that they entered into for the sake of peacel and cooperation with other states this doesn’t mean that such treaties inherently dictate the way in which laws are enforced within that state. It is based on this that it can be seen that not only will a state not recognize the authority of a foreign power in regards to the enforceability of that state’s local laws over a particular outcome of mediation but is also less likely that a state would recognize the authority of an international organization which acts as a third-party mediator.
Provisions for Mediation/Arbitration Outside of Local Courts
Another problem that should be taken into consideration, in regards to the main topic of this paper, is the presence of various provisions regarding arbitration and mediation present within the various laws of the U.A.E, U.K. as well as in other countries around the world. For example, in the case of the U.A.E which doesn’t have a specific set of rules regarding mediation regions laws state that “under the UAE Conciliation Law, a committee called the “Conciliation and Settlement Committee” is established in every first instance federal court in cases involving conciliation between two or more parties”. Article 2 under the same vein as this law further states that “The Committee in order to perform its duties shall have the right to review the papers, documents, records and other evidences and shall take into account what it deems appropriate, without being bound by the Law of Civil Procedures, the Legal Profession Law and the official working hours.” [emphasis added]”. The inherent problem with this particular procedure over mediation is that if a committee isn’t bound by what one can consider “lawful civil procedures” or” legal professional law”, the basis of the decision is thus left up to the opinion of the committee members involved which in of itself is at times not considered valid by other states due to the lack of a “lawful basis” behind the outcome. Not only that when examining the case of Dubai it can be seen that articles 36 of Law No. 6 of 1997 states that: “No contract where Dubai Government or any of its departments is a party shall contain a provision for arbitration outside Dubai courts, or that any dispute regarding arbitration or its procedures shall be the subject to any laws or rules other than the laws, rules and regulations prevailing in the Dubai Emirates”. Since there is a lack of sufficient mediation laws within the U.A.E, this particular provision as well as others like it within U.A.E which relate to the concept of mediation (indicated of the word “procedures” within the context of the law) in effect prevents mediation outcomes decided upon by an outside party that is not a party of the Dubai court to be enforced within Dubai. Similar laws exist within other states who are part of the U.A.E and as such shows that in cases involving particular departments within the states involved even if a supposedly “neutral” state is involved in the dispute proceedings the decision will not be recognized so long as it has not been held by a party of the Dubai court or within its jurisdiction. This is one of the main problems in enforcing the outcomes of mediation against particular departments which belong to the U.A.E. and as such has caused many disputes to go unsettled as seen in the case of problematic construction contracts, private leasing agreements and a variety of similar issues that have occurred between departments of the U.A.E government and private companies. Of particular interest is the fact that other countries also happen to have the same procedures wherein in cases involving a particular aspect of the government the mediation outcome of particular decisions are often not considered valid unless they occurred specifically within the court of that country. The inherent problem though with this particular method is that this in effect prevents any mediation outcome judged by a foreign country from actually being recognized and allowed to be enforceable by the country whose department was affected. It must also be noted that should the mediation outcome be judged within the country in question there are issues regarding the impartiality of the committee involved especially in cases involving the U.A.E wherein the third party in question in charge of mediation isn’t being bound by the Law of Civil Procedures or Legal Profession Law. Based on everything presented in this section so far it can be seen that there are numerous difficulties involving the enforceability of international and local mediation outcomes involving states (especially in the U.A.E) however what must be understood is that such problems are not limited to the desire of states to maintain the integrity of their sovereignty by ensuring that only they have control over their internal laws and provisions but it also happens to extend to the international organization who are at times considered “insufficiently impartial” as the next section will elaborate on.
Failure of Present-Day International Organizations as Sufficient Mediators: the case of the U.A.E and the World Intellectual Property Rights Organization
When examining the WIPO in the context of its protection of traditional knowledge, it can actually be seen that the mandate of the organization in its implementation of intellectual property rights regimes as the only viable path to protecting traditional knowledge is actually inappropriate and even inadequate in protecting the inherited knowledge of indigenous people and local communities. Such a viewpoint has been fervently expressed by the U.A.E who through its foreign policy is actually quite close to various developing countries and as such acts as a “defender” of sorts in regards to traditional knowledge protection (i.e. the inherited knowledge of local communities and indigenous tribes in regards to cultural traditions and knowledge about local biology). What must be understood is that the World Intellectual Property Organization advocates the use of IPR regimes and patents as a generalized way of addressing all issues regarding intellectual property rights infringement yet the U.A.E. has stated that alternative means of protection must be implemented that take into consideration both indigenous practices and customary laws since the current mandates and provisions created by the WIPO are incompatible with the concept of traditional knowledge. For example, article 27.3(b) of the TRIPS agreement (The Agreement on Trade Related Aspects of Intellectual Property Rights) in effect legitimizes the usage of intellectual property rights over life and the processes utilized in modifying life forms yet such rights are more for corporations, states and private researchers and do not actually encompass indigenous people and local communities. In fact, the article itself possesses a significant degree of “danger” so to speak over the rights of local communities (particularly farmers) over the indigenous innovations and traditional farming techniques which are all aspects related to traditional knowledge. The cause for concern regarding the current methods of the WIPO and the TRIPs agreement is not without merit since over the past century there have been numerous cases where medicinal plants, genetic resources, an assortment of seeds, processes and techniques have all been subsequently stolen by a variety of individuals and corporations and subsequently rebranded or repurposed for their own ends. The fact that article 27.3 (b) allows the patenting of such processes and biological resources and that the TRIPS agreements prevent indigenous and local communities from actually applying for the patenting of various aspects related to traditional knowledge since it doesn’t fulfill the requirements in the provisions of TRIPS shows how one-sided the current system is wherein it obviously favors private over community interests. The U.A.E has pointed out that the subsequent impact of such a ruling on matters regarding international mediation/arbitration of such cases is far too one-sided since it obviously benefits western states and corporations at the expense of developing countries. Such an example though is not limited to the WIPO but also extends to various aspects of the World Trade Organization itself which shows why various countries are not only hesitant in using such organizations as mediators but are also reluctant to change internal policies to match those of the recommendations of such organizations since it is obvious that they are far from impartial when it comes to mediation outcomes.
Lack of Impartiality in Cases of International Mediation
In regards to the issue of impartiality involving mediators in cases between two parties in the international scene (such as between corporation and private organizations), it has been noted in various instances that the mediators involved had not been impartial in the least and in fact had a tendency to side with large corporations rather than private organizations. What must be understood is that the only viable solution in effectively resolving issues regarding the enforceability of international mediation outcomes (as mentioned earlier) is the establishment of a sufficiently authoritative organization that is sufficiently impartial in that it can adequately and reasonably resolve such outcomes to the fullest extent of the law of both parties involved. Unfortunate, as it can be seen in the previous section, there is an inherent distrust of international organizations by regions such as the U.A.E since the concept of impartiality doesn’t seem to properly apply to them based on what is apparently a predilection to support the interests of companies and western countries. It is based on this that it is highly unlikely that states such as the U.A.E would allow an external organization such as the WTO, WIPO or other such organizations to mediate/arbitrate various cases involving not only its private citizens but of the government itself given the inherent lack of impartiality of such organizations.
Resolving the Issue of Enforceability of international and local mediation outcomes
While the easiest solution to this problem would be to simply enact some form of regional/international cooperative agreement that would enable some form of interstate cooperation in regards to mediation outcomes there is the issue of compatibility between the inherent laws and policies of one state and another. Not all states share the same legal system (as evidenced by the differences between the U.K. and U.A.E legal system) with subtle or obviously crucial differences in the way particular laws are interpreted and implemented. As such, this obviously presents itself as a problem since if each state has a different method of interpreting and implementing laws how can there be a way in which mediation outcomes be enforced wherein the lawful basis of that particular law is considered and interpreted differently within the state of the other party involved. In fact, when taking such a topic into consideration this calls into question the impartiality and the ability of a third-party mediator to actually be able to do their job properly. Based on the work of Al-Dalalah (2011), it can be seen that third-party mediators have to take into account not only the lawful basis of a particular issue but the language and cultural issues that come with it. While normally this isn’t a problem in most cases of local mediation it is a problem that is present in cases where both parties are from two distinct national, cultural and language backgrounds. It has been shown by various studies which have examined such cases that it is often seen that third-party mediators often cannot adequately reconcile the cultural and language barriers present which on top of the differences in laws applicable in such cases often results in mediators siding with what they find “familiar” so to speak which of course results the loss of their needed impartiality. It is this combination of both unfamiliarity and their inability to be adequately impartial due to the various nuances of the laws involved that creates another issue in regards to enforceability since if the mediators such cases are unfamiliar with the necessary laws, languages and cultural distinctions that are required to properly resolve such issues then how can the outcomes of their mediation even be considered valid at all?
Taking the liberal view into consideration, collective action problems for interstate cooperation can be surmised into 2 distinct problem sets, namely:
- Achieving cooperation between states is relatively costly to organize, monitor and enforce.
- There is the possibility of “free-riding” wherein certain states benefit from the cooperation but do not pay the costs of achieving cooperation.
From the realist perspective even if states found themselves in a situation where cooperative action would be mutually beneficial the fact still remains that these states are still concerned over the concept of relative gains that would result from cooperative action. Based on this, realists state that cooperation is a lot more difficult to achieve than otherwise believed due to the behavior of states where they would give up the potential gains accrued through cooperation if such cooperative action resulted in greater gains for other parties in the cooperative agreement. In the context of the enforceability of international mediation outcomes you have to take into account this particular hypothetical situation: if you take into consideration the realist standpoint that most states act on their own self-interests how is it plausible then for a state to agree to a potential set of rules where it would be put in a disadvantage with another state given the current nature of international mediation/arbitration and the overall lack of sufficient impartibility, cultural knowledge, knowledge of local laws and other such knowledge barriers that exist in being able to come up with even a semblance of a fair outcome. The answer is of course is that it isn’t plausible and it is more likely than not that states wouldn’t agree to such an outcome and as such that is the reason why attempts at international mediation are so difficult since not only do the states distrust one another, they distrust the impartiality of international organizations as well as refuse to accord any form of authority over their internal policies to an outside party. When examining the various factors presented by this paper so far two pressing concerns become immediately evident: the first is the necessity of creating a system of international mediation that is sufficiently impartial to be considered effective by all states and the need for states to commit to a treaty that specifically grants powers to such an organization allowing it to in effect determine and enforce particular outcomes involving mediation. The only way this can be accomplished is if relative gains concerns are no longer an issue in light of one state “getting ahead” of another in terms of success in international mediation outcomes. While such a solution may be farfetched it is the only one so far that could sufficiently address all the issues presented within this paper.
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