The Convention on the International Court of Mediation improves the global dispute resolution mechanism
2025-07-07
On May 30, 2025, the signing ceremony of the Convention on the Establishment of an International Court of Mediation (hereinafter referred to as the "ICC Convention") was held in Hong Kong, with 33 countries becoming founding members, marking an important step for the international community to explore "non confrontational" dispute resolution in the context of diverse civilizations coexisting. The traditional dispute resolution mechanism is facing many problems. The traditional "adversarial" dispute resolution mechanism is facing many problems, and the legal path for international dispute resolution needs to be "diversified" and "diverse". For a long time, the international dispute resolution mechanism has mainly been established on the basis of the common law litigation system in Britain and the United States, resolving international conflicts through arbitration or judicial rulings between the parties to the dispute, relying on the mandatory nature of the ruling and the finality of the judgment. Although dealing with international disputes in an adversarial manner has certain advantages in terms of certainty and binding force, there are also problems such as adapting to the situation, cultural incompatibility, and high costs. One is that the existing dispute resolution mechanism is difficult to adapt to the new changes in international disputes. With the increasing diversity and complexity of international disputes, especially the emergence of the Ukraine crisis and the Israeli Palestinian conflict, the tendency of international judicial institutions to be "active" has been strengthened. The common interests of contracting parties, such as human rights and climate, have gradually become a new basis for non victimized countries to file lawsuits. The triangular structure of "confrontation between the parties and neutrality of the arbitrator" in international arbitration or litigation is facing challenges. At the same time, resorting to international judicial consultation procedures has become an important means for countries to safeguard their rights and interests, demonstrating that the dispute resolution concept of "low confrontation, high tolerance" is becoming a priority rule for countries to apply. From the United Nations' promotion of the signing of the Singapore Convention on Mediation to the signing of the International Court of Mediation Convention, the international community's consensus on alternative dispute resolution mechanisms is constantly consolidating, and "flexible" mechanisms such as consultation and mediation are becoming the consensus of the international community. Secondly, the Western litigation culture and "universal values" are difficult to align with the cultural traditions and legal customs of non Western legal countries. The Western legal tradition often regards international disputes as a trade-off between the interests of both parties, ignoring the pursuit of win-win possibilities in the context of Eastern culture. In Chinese traditional culture, "mediation" is not a concession or compromise, but a wisdom of pursuing balance of interests and social harmony. It advocates reaching consensus through dialogue and consultation, which is difficult to accept by the deep-rooted "zero sum game" thinking in the western rule of law tradition, and is also lacking in international dispute settlement. The third is the adversarial dispute resolution method, which often takes a long time and is costly. The average duration of the International Court of Justice procedure is 3 to 5 years, the average duration of the WTO dispute settlement procedure is 1.5 to 3 years, and the average duration of investment arbitration is 3 to 4 years. The legal fees, arbitrator and judge fees, institutional fees, expert witness fees, and other expenses involved in litigation can range from millions to tens of millions of dollars, with some even exceeding billions. This is a significant burden for many underdeveloped developing countries and small and medium-sized enterprises. The goal and purpose of the Convention on the International Court of Mediation, which aims to promote the peaceful settlement of international disputes, encourage friendly cooperation and goodwill, is precisely put forward in this context. The current international dispute settlement system tends to be centralized, and its construction is deeply influenced by Western centrism. The discourse pattern of "form neutrality, substance bias" has compressed the expression space of non Western legal civilization. From the embedding of liberal values through natural law discourse in the Statute of the International Court of Justice, to the deep binding of Western style human rights concepts with concepts such as war crimes and crimes against humanity in the Statute of the International Criminal Court, the international dispute settlement mechanism exhibits a clear "centralization" tendency in institutional design, rule interpretation, and value orientation, specifically manifested as: firstly, judicial centralization. The existing dispute resolution mechanisms between countries adopt the institutional design of "judicial" or "quasi judicial" methods. The fundamental role of the international dispute settlement mechanism is to uphold international fairness and justice, but disputes between countries are often intertwined with political, diplomatic, historical, cultural, economic, human rights, environmental, legal and other issues, making it difficult to make precise judgments with simple "right or wrong" and "either or" judgments, and cannot be completely resolved by a single ruling. The existing system design with a "win lose orientation" not only fails to meet the practical needs of effectively resolving international disputes, but also falls far short of the international community's expectations for establishing a fair, reasonable, and balanced international order. The International Tribunal for the Law of the Sea (ITLOS), which specializes in handling maritime disputes, urgently needs reform due to issues such as a high proportion of European and American judges, differences in rule interpretation, weak enforcement mechanisms, and gaps in emerging fields. The second is national centralization. The internal power structure distribution of existing international dispute resolution mechanisms, driven by capital or members, leads to reliance on the influence endorsement of "major shareholders" or "core members" in rule interpretation and enforcement, making international rule of law vulnerable to geopolitical influences. The essential goal of international judicial and arbitration institutions is to "settle disputes" rather than serving the interests of one faction or member. The "capital driven" World Bank emphasizes capital majority decision-making, and the International Center for the Settlement of Investment Disputes (ICSID), established on this basis, has historically followed the liberal process of the World Bank's Western "major shareholders" to adjust its jurisdiction and discretion, and has long been criticized for its fairness and consistency in rulings. As the main judicial organ of the "member driven" United Nations, the rulings of the International Court of Justice are also difficult to fully constrain core members. On the one hand, due to power asymmetry, major powers can evade responsibility and even freeze mechanisms through political and economic means. On the other hand, major powers engage in political warfare through legal means. The examples of the United States advancing litigation against Russia in the International Court of Justice, investigating war crimes against Russian officials in the International Criminal Court, and establishing a special international criminal tribunal to hold Russia accountable for its aggression are all clear evidence. At the same time, some countries package territorial sovereignty disputes between countries as matters under the jurisdiction of international judicial and arbitration institutions, in order to influence and intervene in the diplomatic consultation process of the parties involved. Promoting the repositioning of the concept of justice and empowering discourse, the International Court of Mediation Convention strives to promote discourse empowerment for countries in the global South through institutional innovation of "decentralization of justice". The decentralization of justice is not a destruction or challenge to existing dispute resolution mechanisms, but rather a way to leverage their respective strengths and strive to complement the "judicial centralization" dispute resolution mechanisms to form a "diversified" legal discourse pattern, promoting global governance from a "monologue" to a "dialogue". The convention does not establish a mandatory judicial adjudication mechanism or emphasize compulsory enforcement, but is based on the basic principle of "autonomy of will and freedom of choice in dispute resolution", and guided by the spirit of "seeking friendly resolution of international disputes in good faith and cooperation". The institutional design of "de judiciary" is an important breakthrough for non Western legal civilizations to strive for the rights of expression, participation, and construction in the global legal order. The Convention on the International Court of Mediation strives to reposition the concept of justice in dispute resolution through institutional innovation of "decentralization". Decentralization "refers to the international mediation under the convention that liberates dispute resolution from the scenario of" weak trust foundation "or" high political sensitivity "between countries, freeing traditional" international mediation "from the limitations of serving the" state "as the main body, and thus having broader institutional adaptability and legal cultural diversity. On the one hand, unlike international courts such as the International Court of Justice and the Permanent Court of Arbitration in The Hague, which have both public law and private law attributes, international mediation under the Convention has both public and private law attributes. Its flexible design is not only applicable to dispute resolution centered on the state, but also to the resolution of transnational conflicts between enterprises or between governments and private entities. On the other hand, compared with traditional systems such as the World Bank's International Centre for the Settlement of Investment Disputes and the World Trade Organization's dispute settlement mechanism, the International Court of Mediation does not require sovereignty transfer or rely on national sovereignty endorsement, but provides alternative dispute resolution solutions in a flexible, convenient, and friendly manner. (New Society)
Edit:XINGYU Responsible editor:LIUYANG
Source:legaldaily.com.cn
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