Mediation and arbitration: a legal dilemma

Abstract

Problem setting. The active development of international trade in the 21st century requires the unification and consolidation of legislation and the creation of a unified law to enforce practice in areas related to international commercial arbitration and mediation. Economic disputes are an integral part of commercial relations. Arbitration as a mechanism for resolving conflicts is quite common. From French arbitrage translates as resolving a dispute by involving a mediator. At the same time, the parties may choose commercial mediation, consultation or negotiation. The implication is that it is quite difficult to choose only one method or the need to combine several methods to effectively resolve the dispute.

Target of research. The purpose of the article is to analyze the main features of international commercial arbitration and mediation, determinate and establish peculiarities of legislative regulation in Ukraine and abroad.

Analysis of recent researches and publications. A significant contribution to the study of this problem was made by O.M. Sadikov, N.O. Saniahmetova, M.M. Агарков, С.С. Alekseev, A.S. Vasiliev, O. A. Belyanevich, M. I. Braginsky, I. B. Zaverukha, I.E. Zamoysky, V.V. Kovalenko, G.F. Shershenev and others.

Article’s main body. Ukraine has risen in the world rankings for the investment attractiveness «Doing Business 2020» – by 7 points and ranked 64th among 190 countries and significantly increased economic growth. This ensures the attractiveness of the investment market for Ukraine, which significantly affects the economic development of the country. For instance, a large number of agreements and obligations are concluded between the parties, in which the counterparties can be both the Ukrainian citizens and foreigners, which increases the growth rate of the Ukrainian economy. However, in the concluded agreements there are can be discrepancies, violations and improper fulfillment of obligations by contractors, which can turn into disrupts, interrelated contracts and even leads to a decrease in business activity and affects the reputation of such activities. To resolve such disputes, the parties have the opportunity to go to court or use alternative methods of resolving the conflict. At the discretion of the parties, alternative methods such as commercial mediation and international commercial arbitration are possible, which are designed to resolve disputes and disagreements arising from trading agreements.

Conclusions and prospects for the development In conclusion, amendments in the legislation can help to precise the main advantages of international commercial arbitration and mediation, including: neutrality, centralized dispute resolution, final decision, confidentiality and time savings. That is why international commercial arbitration with the use of mediation is one of the most effective alternative methods of resolving commercial disputes. What is more, international arbitration and mediation as ways of alternative dispute resolution have been used since ancient times. However, recognition and enforcement at the level of state courts began in the 20th century – the signing of international conventions governing the procedure for enforcing and enforcing decisions, and states – parties to the conventions – ratified and enshrined in national law. In the future, there is an opportunity to improve the legislation by implementation of the new Act “On Mediation” and also by including mediation as a necessary part of arbitration process into the official rules.