Initiating the establishment of international mediation courts Background, foundation and progress

Abstract: In recent years, the international community's demand for mediation is increasing, but there is no intergovernmental organization dedicated to mediation. Since 2022, China and like-minded countries have signed the Joint Statement on the Establishment of an International Mediation Court and decided to jointly initiate the establishment of an international mediation Court. The International Court of Mediation will be an intergovernmental, treaty-based international legal organization established by the parties through consultation, dedicated to providing specialized mediation services and providing friendly, flexible, economical and convenient solutions to all types of international disputes. The International Mediation Court is a useful supplement to existing dispute settlement institutions and methods. It will provide a new platform for the peaceful settlement of international disputes and is of great significance to the development of international peace and security and the stability of the international order. The Preparatory Office for the International Mediation Court was established in the Hong Kong Special Administrative Region of China on February 16, 2023, and is responsible for organizing and coordinating the parties to carry out negotiations on a convention establishing an International Mediation Court in accordance with the mandate of the Joint Declaration on the Establishment of an International Mediation Court. It is expected to complete negotiations on the convention and establish an International Mediation Court within two or three years.

Since 2022, More than a dozen countries, including China, Indonesia, Pakistan, Laos, Cambodia, Serbia, Belarus, Sudan, Algeria and Djibouti, signed or supported the Joint Statement onthe Establishment of the International Mediation Court International Organization for Mediation (hereinafter referred to as the Joint Declaration), decided to jointly initiate the establishment of an International mediation Court. The International Mediation Court is a global public product of the rule of law provided by the Chinese government and other like-minded countries for the peaceful settlement of international disputes in response to the development trend and needs of international mediation. The International Court of Mediation will be an intergovernmental, treaty-based international legal organization established by the parties through consultation, dedicated to providing specialized mediation services and providing friendly, flexible, economical and convenient solutions to all types of international disputes. On February 16, 2023, in accordance with the authorization of the Joint Declaration, the Chinese Government took the lead in establishing the Preparatory Office for the International Mediation Court in the Hong Kong Special Administrative Region of China, which is responsible for organizing inter-governmental negotiations on matters such as the conclusion of an international convention establishing the International Mediation Court. This marks the beginning of the substantive establishment of the International Mediation Court. Wang Yi, member of the Political Bureau of the CPC Central Committee, sent a congratulatory letter to the inauguration ceremony of the Preparatory Office. Li Jiachao, Chief Executive of the Hong Kong Special Administrative Region of China, and ministerial officials from relevant signatories of the Joint Declaration delivered video speeches respectively. Since the first half of 2023, the Preparatory Office has organized States to carry out negotiations on the Convention and other related preparatory work.

I. Historical background and significance of initiating the establishment of the International Mediation Court

The world today is undergoing profound changes unseen in a century. On the one hand, the historical trend of peace, development, cooperation and mutual benefit is unstoppable, and the trend of world multipolarity, economic globalization and democracy in international relations is irreversible. On the other hand, the far-reaching impact of the pandemic in the 21st century, the resurgence of anti-globalization, the rise of unilateralism and protectionism, the sluggish recovery of the world economy, frequent local conflicts and turbulence, and worsening global problems have brought the world into a new period of turbulence and change, and faced unprecedented challenges to human society. In this context, the idea of establishing the International Mediation Court came into being. The International Mediation Court will be committed to resolving disputes through peaceful means, resolving disputes through dialogue and consultation, rejecting zero-sum games through mutual benefit, and responding to the strong demands of the international community for peace and security, fairness and justice, and win-win cooperation. Further, the historical background and significance of initiating the establishment of the International Mediation Court are reflected in the following aspects.

1. Helping build a community with a shared future for mankind

Jointly promote the building of an open, inclusive, clean and beautiful world of lasting peace, universal security and common prosperity. The International Mediation Court is one of the concrete measures to promote the building of a community with a shared future for mankind from concept to action. In today's world, countries are interdependent and the future of mankind is closely linked. At the same time, contradictions in human society are inevitable. To replace confrontation and conflict with dialogue is the trend of The Times and the only way out. The International Mediation Court embodies the ancient wisdom of "peace is Paramount" and mutual benefit and win-win results. It also embodies the spirit of the rule of law based on international law. It will provide a neutral and fair platform for the international community to help all parties resolve disputes through equal dialogue and friendly consultation, prevent and resolve conflicts, achieve win-win cooperation and promote peaceful development.

2. Improving the global governance system

In recent years, armed conflicts, geopolitical conflicts, territorial disputes and refugee crises have emerged in various parts of the world, and traditional and non-traditional security challenges are intertwined. UN Secretary-General Antonio Guterres has said on several occasions that humanity is facing unprecedented challenges, with old tensions on the rise, new risks constantly emerging, the peace and security architecture under unprecedented pressure, and global governance in trouble. The collective security mechanism of the United Nations is inadequate in addressing global threats and challenges, while existing international judicial institutions such as the International Court of Justice and the International Criminal Court are also unable to fully meet the actual needs of preventing and resolving regional conflicts. Mediation, as an important means of peaceful settlement of international disputes stipulated in the Charter of the United Nations, is one of the most effective ways to prevent, manage and resolve conflicts. The International Court of Mediation will be the world's first intergovernmental international legal organization dedicated to the settlement of international disputes through mediation. It will complement the existing dispute settlement institutions and dispute settlement methods, and complement the existing international system with the United Nations at its core and the international order based on international law.

The preparatory process of the International Mediation Court has also taken concrete actions to adhere to genuine multilateralism, abide by the principle of mutual respect, give full play to the synergy of extensive consultation and joint efforts, uphold the spirit of openness and inclusiveness, and achieve the goal of balanced development. In particular, the preparatory process will meet the expectations of developing countries, increase their participation, and increase their representation and voice in global governance.

3. Supporting sustained global economic development

Development is the eternal pursuit of human society and the common responsibility of all countries in the world. As the world economic situation changes, the key to reforming the governance system is to strike a balance between fairness and efficiency, so as to meet the practical needs of addressing global challenges and conform to the historical trend of peace, development, cooperation and win-win results. China always supports making economic globalization more open, inclusive, balanced and beneficial to all. At present, the global economy is deeply intertwined, and the Chinese economy is enjoying a recovery. National, regional and private commercial activities are rapidly recovering, and the demand for dispute resolution is increasing, and the existing mechanisms are not yet able to effectively meet the needs of dispute resolution. Compared with litigation and arbitration, mediation has the advantages of reducing time and economic costs, improving the controllability of dispute resolution results, promoting the maintenance of long-term cooperative relations, improving transaction efficiency and predictability, and helping to promote the orderly flow of production factors and efficient allocation of resources. In this context, countries around the world pay more and more attention to mediation, and have enacted legislation related to mediation or set up mediation institutions in their countries. Many international organizations have also formulated or revised mediation rules in accordance with the latest developments to promote and promote the use of mediation. It is foreseeable that mediation in the post-epidemic era will provide greater institutional support for promoting vigorous recovery of economic exchanges.

4. Responding to the international community's expectations of China

With the protracted and escalating crisis in Ukraine, the international community has increasingly called for a ceasefire to stop the fighting and ease the situation, and some countries expect China to mediate. In February 2023, the Chinese government issued China's Position on the Political Settlement of the Ukrainian Crisis, which clearly stated that dialogue and negotiation are the only viable way out of the Ukrainian crisis. In March 2023, with the support and promotion of the Chinese government, Saudi Arabia and Iran held a dialogue in Beijing seven years after the severing of diplomatic relations. China, Saudi Arabia and Iran signed and issued a joint statement, in which Saudi Arabia and Iran agreed to restore diplomatic relations. This is a successful example of resolving differences and disputes through mediation. It also provides an important example for countries to resolve regional conflicts through dialogue and consultation. Previously, China played an important role in easing conflicts in Afghanistan, Myanmar, Sudan and the Great Lakes region of Africa, and promoting the peaceful settlement of these conflicts. According to public statistics, the United States participated in 90 mediation cases from the end of World War II to the 1990s as a mediator, and the Soviet Union participated in 17. China's diplomatic practices in recent years have been highly praised by the international community, and more and more countries expect China to play a greater role in maintaining international peace and development. For example, some African delegates made it clear that China is the ideal mediator for conflicts in Sudan and other places, "Sudanese leaders have less confidence in the West, and will be more comfortable with China-backed mediation."

II. Practical basis for initiating the establishment of an international mediation Court

As an important dispute resolution method, mediation has a long history and practical basis in both Chinese and Western civilization. In modern times, with the increasing international exchanges and international investment and trade, mediation has been widely used to resolve disputes in the fields of territorial sovereignty, armed conflicts, foreign relations, economic rights, economic trade and investment, and commercial affairs, and has been adopted by many bilateral and multilateral treaties. In recent years, as the WTO dispute settlement mechanism and the international investment arbitration mechanism have faced major problems and challenges, it has become a consensus of all parties to reform these existing mechanisms. At the same time, international mediation is increasingly favored by all parties, and the international community has a growing demand for mediation. A series of new rules in the field of mediation have been formulated and introduced, and the practice of international mediation has been continuously enriched.

(a) The practice and advantages of mediation in settling disputes between States

As an important means to settle disputes between states, mediation is stipulated in a large number of multilateral and bilateral treaties. the Convention for the Pacific Settlement of International Disputes of 1899 and 1907 listed mediation as one of the four means of peaceful settlement of international disputes. Between 1925 and World War II, there was a worldwide surge of support for mediation procedures, with nearly 200 treaties on mediation concluded. Article 33 of the Charter of the United Nations also clearly stipulates that mediation is an important means of peaceful settlement of international disputes. Mediation has also been written into several regional treaties, Such as the 1948 American Treaty of Pacific Settlement (or the "Pact of Bogota"), the 1957 European Convention for the Peaceful Settlement of Disputes (the European Convention for the Peaceful Settlement of Disputes) Convention for the Peaceful Settlement of Disputes, the Protocol to the OAU Charter on Conciliation, Conciliation and Arbitration,1964 onthe Commission of Mediation,Conciliation and Arbitration, the Treaty Establishing the Organization of Eastern Caribbean States (1981) All of them regard mediation as an independent dispute settlement mechanism parallel to judicial and arbitration. Many global multilateral treaties have detailed provisions on mediation procedures, such as the 1969 Vienna Convention on the Law of Treaties, which provides that for disputes involving the interpretation or application of the validity, termination and suspension of the provisions of treaties, the parties can resort to the mediation procedures provided for in the annex to the Convention, and the 1982 United Nations Convention on the Law of the Sea also provides for compulsory mediation procedures. According to incomplete statistics, among the 145 multilateral treaties with third-party dispute settlement provisions maintained by the Office of the United Nations Secretary-General, 26 of them provide for mediation procedures, mainly in the fields of environment, treaty law, shipping, transportation and communications.

There are many successful mediation practices in the world. Such as: In 1825, Britain settled a dispute between Portugal and Brazil, then a colony, the two sides signed the Treaty of Rio de Janeiro between the Kingdom of Portugal and theEmpire of Brazil, recognizing the independence of Brazil; In 1938, a number of countries (the United States, Argentina, Brazil, Chile, Peru, Uruguay) mediated the territorial dispute between Bolivia and Paraguay over the Chaco and settled the territorial demarcation between the two countries. In 1960, the World Bank mediated a dispute between India and Pakistan over the use of the Indus River, the Indus Waters Treaty Between enIndia,Pakistan and International Bank for Reconstruction and Reconstruction was signed Development) to clarify the rights and obligations of both countries in relation to the use of the waters of the Indus River; In 1977, Kenya, Uganda and Tanzania entrusted a former Swiss diplomat as the sole mediator to deal with the distribution of the assets of the former East African Community, followed by a package agreement in 1984; In 1978, the United States mediated the conflict between Egypt and Israel, signing the Camp David Accords, and the Egypt-Israel Peace Treaty the following year, recognizing each other and ending the state of war. In 1979, the Pope mediated the dispute between Argentina and Chile over the territory and maritime boundary of the Beagle Channel, which had previously been referred to arbitration. In 1984, they signed the Joint Declaration of Peace and Friendship between Argentina andChile, which defined the maritime, land and seabed boundaries of the southern regions of the two countries. The UN has also played a significant role in mediating inter-state and intra-state conflicts, including mediation by the UN Secretary-General and his representative or special envoy at the request of the parties concerned, on the Secretary-General's own initiative, or in accordance with the Security Council and the General Assembly.

Other mediation practices involve the establishment or AD hoc establishment of mediation commissions under multilateral or bilateral treaties. Such as The Chaco Mediation Commission established in 1929 under The General Convention of Inter-American Conciliation (1929), and the General Protocol for the Peaceful Settlement of International Disputes (1947) Act of 1928 for the PacificSettlement of International 1947) The French-Siamese Mediation Commission, the Belgian-Danish Mediation Commission established by bilateral treaty in 1952, the French-Swiss Mediation Commission established by bilateral treaty in 1955, the Italian-Swiss Mediation Commission established by bilateral treaty in 1956, and the French-Moroccan Mediation Commission established on a temporary basis in 1958 Conciliation Commission, Iceland and Norway Jan Mayen Continental Shelf Conciliation Commission temporarily established in 1981, etc. The most recent was in 2016 when Timor-Leste initiated compulsory conciliation proceedings under the United Nations Convention on the Law of the Sea concerning maritime delimitation with Australia, resulting in the establishment of the Conciliation Commission. The two sides concluded The Comprehensive Package Agreement in 2017 and signed the Treaty Between the Democratic Republic of East Timor Sea in 2018 Timor-Leste and AustraliaEstablishing their Maritime Boundaries in the Timor Sea), ending a decade-long dispute over maritime demarcation between the two countries, also demonstrates the effectiveness of resolving disputes through mediation.

Practice has proved that mediation is an effective means to prevent, manage and resolve inter-state conflicts. When countries cannot resolve their disputes through negotiations, third-party intervention is a viable way to break the deadlock and produce an acceptable solution. Mediation is the most effective means of dispute settlement, especially when the dispute is primarily about legal issues and the parties expect to reach a mutual compromise fairly. The advantage of mediation is that it is initiated on a voluntary basis and allows the parties to retain control of the dispute settlement process, which does not have the potential to surprise the State and even exacerbate the conflict, as is the case with judicial and arbitration. In addition, mediation also embodies the principles of international law such as sovereign equality, non-interference in internal affairs, peaceful settlement of disputes and win-win cooperation. If the dispute involves a sensitive issue, the mediation process is completely confidential, meeting the specific requirements of the State for the handling of the dispute.

(b) The practice and latest development of settlement of international investment disputes by mediation

The investor-State Dispute settlement (ISDS) mechanism, as an important institutional arrangement of global economic governance, has been widely used in the world in recent decades. ISDS mechanisms include consultation, mediation, arbitration, litigation, etc., among which arbitration has the highest usage rate. In the practice of investment treaties, according to the United Nations Conference on Trade and Development (UNCTAD) and the World Trade Institute (World Trade Institute) database statistics, of the 3,815 international investment treaties that can be retrieved worldwide, 1,141 treaties (about 30%) provide for mediation procedures. In terms of caseload, according to UNCTAD, there were about 100 ISDS cases worldwide from 1987 to 2000. In the 2000s, ISDS cases increased rapidly, with the number of cases surging to 1,257 as of October 2023. According to the International Centre for Settlement of Investment Disputes (ICSID), the number of cases registered under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) and the ICSID Additional Facilitation Rules is 962, of which 948 are arbitration cases. There were only 14 mediation cases (about 1.46% of the total).

Judging from the cases accepted by ICSID, the vast majority of disputes between investors and states are resolved through arbitration, and only a few cases are resolved through mediation, mainly in the fields of natural resources and infrastructure. Most of the parties to the mediation proceedings are investors, and only one case is known to have been initiated by the State. Unlike inter-state mediation, relatively little information is available online about investor-State dispute mediation. Due to the confidentiality of the mediation process, some cases are not made public. In addition to the above ICSID cases, there is also a known case of mediation administered by the Permanent Court of Arbitration (PCA) involving a dispute related to the Clean Development Mechanism of the United Nations Framework Convention on Climate Change, but for reasons of confidentiality, No public information about the case is available.

With the widespread application of investment arbitration, its negative effects and inherent defects gradually emerge, such as foreign investors use arbitration mechanism to challenge the governance of the host country, affecting the public interest of the host country, inconsistent arbitration award standards, excessive duration and huge cost of arbitration procedures, and problems in the impartiality and independence of arbitrators. There is a consensus on the need for ISDS reform, with many countries, particularly in Asia and Africa, willing to reject international arbitration and instead promote the use of more friendly dispute settlement methods such as mediation. Since July 2017, the United Nations Commission on International Trade Law (UNCITRAL) has appointed Working Group III to explore the reform of the ISDS mechanism, including the development of more effective investment mediation mechanisms. Some international organizations have formulated and promulgated mediation rules. for example, in 2012, the International Bar Association issued the IBA Rules for Investor-State Mediation, and in 2016, the International Energy Charter Conference issued the Guide on Investment Mediation In 2022, the ICSID issued the "ICSID Mediation Rules" to actively promote investment Mediation. In addition, in recent years, an increasing number of bilateral or multilateral investment and trade treaties have included mediation in their dispute resolution mechanisms. Such as the Regional Comprehensive Economic Partnership Agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership The Agreement for Trans-Pacific Partnership, the ASEAN Comprehensive Investment Agreement The EuropeanUnion-Canada Comprehensive Economic and Trade Agreement (EU-Canada Comprehensive Economic and Trade Agreement) Agreement, and the Indonesia-Australia Comprehensive Economic Partnership Agreement. More than 20 bilateral investment or free trade agreements signed by China include mediation as a means of dispute settlement, and mediation procedures are also clearly stipulated in the Investment Agreement on Closer Economic Partnership Arrangement between the Mainland and Hong Kong and Macao.

Compared with investment arbitration, mediation gives the state and investors a high degree of flexibility and independent choice, allowing the mediator to have some space to adopt creative and forward-looking methods to promote the settlement of investment disputes, which is conducive to promoting win-win results, maintaining the long-term cooperative relationship between investors and the host government, and thus playing a role in settling disputes and avoiding the escalation of conflicts. At the same time, mediation can avoid lengthy arbitration procedures and high financial costs.

(c) the practice and latest development of resolving international commercial disputes by mediation

Because of its unique advantages, mediation is increasingly used to resolve international commercial disputes instead of litigation in practice, and has been successfully applied to many fields such as manufacturing, mining, construction, intellectual property, insurance and reinsurance. As early as 1980, UNCITRAL, recognizing the value of mediation in resolving commercial disputes, developed and adopted the UNCITRALMediation Rules, which were subsequently revised in 2021 in light of developments in mediation practice. Since the 21st century, as mediation has increasingly become an effective means to resolve international commercial disputes, legislation on international mediation has been promulgated. UNCITRAL developed the UNCITRAL Model Law on International Commercial Conciliation in 2002 and revised it in 2018. The United NationsConvention on International Settlement Agreements Resulting from Mediation, 2018 Mediation, also known as the Singapore Convention on Mediation, was adopted, which opened for signature in 2019 and entered into force in September 2020. the International Chamber of Commerce (ICC) promulgated the 2001 Amicable Dispute Resolution Rules (ADR Rules) in 2001 and the Mediation Rules in 2014 Rules) to replace the Amicable Dispute Resolution Rules. The Arbitration Court of the Stockholm Chamber of Commerce (SCC) established the SCC Mediation Rules in 1999, which were subsequently revised in 2014 and 2023. Many countries have also introduced commercial mediation legislation, 33 countries have enacted relevant domestic legislation in accordance with the UNCITRAL Model Law on International Commercial Mediation, and the European Union has promulgated the 2008/52/EC Directive on Certain Aspects of Civil and Commercial Mediation.

With the institutionalization and specialization of commercial mediation and the increasing demand of the international community for mediation, more and more organizations begin to provide mediation services. Since the mid to late 1990s, The Court of Arbitration of the International Chamber of Commerce (ICC), the Court of Arbitration of the Stockholm Chamber of Commerce (SCC), the London Court of International Arbitration (LCIA), the Asian International Arbitration Center (AIAC), the China International Economic and Trade Arbitration Commission (CIETAC), the Beijing International Arbitration Center (BIAC), the Shenzhen International Arbitration Court (SCIA) and other international commercial arbitration institutions have been opened Cross-border mediation services are provided. Some domestic institutions, such as the Resolution Institute in Sydney, the ADR Centre in Rome, the Centre for Effective Dispute Resolution in London (CEDR), the International Institute for Conflict Prevention and Resolution in New York, and the American Judicial Arbitration Mediation Services Limited (JAMS), have expanded their international mediation services abroad. Some countries have set up special mediation institutions to resolve international disputes, such as the Mediation Center of the China Council for the Promotion of International Trade, the International Mediation Center in Singapore, the International Mediation Center in Kyoto, Japan, and the International Arbitration and Mediation Center in Bali.

A number of institutions specializing in type mediation are also emerging, such as in the field of intellectual property dispute resolution, the World Intellectual Property Organization (WIPO) established an Arbitration and Mediation Center in 1994, and promulgated the WIPO Mediation Rules in 2021. The center now has more than 2,000 Neutrals, including arbitrators, mediators and experts, who are skilled in dispute resolution and have expertise in intellectual property dispute resolution. Mediation is widely used to deal with disputes involving intellectual property in technology, entertainment and other fields. Up to now, the center has accepted a total of about 1,350 mediation, arbitration and expert determination cases, of which the success rate of mediation is as high as 70%, more than 850 good offices cases, and more than 60,000 domain name disputes.

In the field of commercial dispute resolution, mediation has obvious advantages compared with litigation. Mediation does not only determine legal rights, obligations and responsibilities on the basis of contracts, laws or treaties, but also takes into account the comprehensive interests of the parties, such as their existing relationships, cultural backgrounds, business habits and time costs, and turns win-loss into a win-win situation. Its non-confrontational nature is conducive to the pursuit of common long-term interests of all parties. In addition, mediation has a series of advantages such as low cost, fast procedure, control by the parties, and strong confidentiality.

III. Key and difficult issues in the process of establishing an international mediation court

Since 2023, the Preparatory Office for the International Mediation Court, as authorized by the Joint Declaration, has been responsible for organizing and coordinating the parties to carry out negotiations on the convention establishing the International Mediation Court, and strive to complete the negotiations on the convention and establish the International Mediation Court within two or three years. The Convention is the charter for the establishment of the International Mediation Court and is the basis for the future development and operation of the institution. The Convention mainly covers: issues related to the establishment of the institution, such as headquarters, member states, financial contributions, privileges and immunities of the institution; How the organization operates, such as governance structure, decision-making mechanism, internal structure and function allocation; How the institution provides mediation services, such as the scope of cases accepted, mediation procedures, settlement agreement effectiveness and enforcement. This article will briefly touch on some of the key and difficult issues involved in the negotiation of the Convention.

(1) Scope of accepting cases

The scope of acceptance of cases is one of the core provisions of the treaty establishing various dispute settlement bodies, and it is also the difficult point of negotiation. The position of the International Mediation Court is that it is an international institution specializing in mediation worldwide, and the restrictions on the scope of accepting cases should not be too much, otherwise it will become a mediation institution in a specialized field. At the same time, from the perspective of mediation effectiveness and avoiding direct involvement in sensitive disputes, cases accepted by the International Mediation Court will be completely established on a voluntary basis, and only disputes submitted by the parties agree to be submitted by the International Mediation Court will be accepted. In terms of the types of cases accepted, there are currently three types of disputes for the parties to negotiate and consider, namely, disputes between states, disputes between states and the people of another state, and international commercial disputes between private entities. The scope of cases accepted by the International Mediation Court ultimately depends on the outcome of the negotiations between the parties.

As for disputes between states, past mediation practices have shown that the types of disputes involve land borders, maritime delimitation, armed conflicts, diplomatic relations, hostage incidents, natural resources, the environment, shipping and many other fields. There are cases in which the two sides have reached a fair compromise with the assistance of a third party based on the friendly relations between the two countries, and there are also cases in which the two sides have been engaged in armed conflicts for many years or when the relationship has reached a stalemate, and the third party has sought a peaceful solution. Many international conventions use mediation as a means of dispute resolution. If no permanent body is established under the conventions to manage the mediation process, consideration may be given to allowing the International Court of Mediation to act as the governing body for the mediation of related disputes. From the perspective of the jurisdiction of existing international judicial institutions, the International Court of Justice has jurisdiction over all cases submitted by the States concerned, and the Permanent Court of Arbitration has jurisdiction over all arbitration cases. Unlike litigation and arbitration, mediation is a non-compulsory and non-adversarial dispute resolution method with low entry and exit thresholds, and the parties have strong control over the procedure. If the International Court of Conciliation sets the threshold for the commencement of conciliation proceedings as entirely voluntary and allows the termination of proceedings at any time, it can effectively eliminate the situation in which the parties are unwilling to submit the case to the conciliation body and avoid the situation in which the outcome of the conciliation is unexpected.

It should be noted, however, that the absence of restrictions on cases submitted by two States involving the interests of a third State may result in the third State being forced to become involved in mediation. If a third State objection procedure were to be established in the Convention, such issues as territorial sovereignty of the third State should be accepted with the consent of the third State, such a provision might solve this problem. However, the difficulty lies in how to notify all relevant third parties before the mediation process starts, who will determine the third party, and how to deal with third party factors that arise during the mediation process. The third party objection procedure should not be too complicated, so as not to make the initiation and promotion of the mediation procedure too slow, and thus damage the effectiveness of mediation. Regarding disputes between the state and the people of another state and international commercial disputes between private entities, the International Mediation Court can also provide a platform for handling the above types of disputes in line with the current development trend of investment mediation and international commercial mediation.

(2) List of mediators

Judges, arbitrators and mediators are the core components of the international dispute settlement mechanism. The judges of the International Court of Justice are elected by the General Assembly and the Security Council of the United Nations and must be qualified to hold the highest judicial office in their respective countries or be recognized international jurists of competence. In addition, the composition of the judges of the Court must represent the major cultures and major legal systems of the world. the Permanent Court of Arbitration has a list of arbitrators (Members of the Court), and each State Party shall appoint a maximum of four persons recognized as proficient in international law, of the highest moral standing and willing to accept the duties of arbitrator. The ICSID has a list of arbitrators and a list of mediators, who are required to be of high moral character and to be of recognized legal, commercial, industrial and financial competence and to be relied upon to exercise independent judgment, especially in the case of the persons on the list of arbitrators; In appointing persons, the President of the Administrative Council shall also take due care to ensure the representation of the major legal systems and major modes of economic activity in the world. The ICSID initially did not have a specific list of mediators, but since 2011, it has broken its previous practice of selecting mediators from a list of arbitrators and has started to establish a separate list of mediators and assign mediators.

Factors such as the mediator's experience, competence and ability to gain the trust of the parties are related to the quality and outcome of the mediation. How to select the right mediator is crucial for the mediation mechanism to really play a role. The International Court of Mediation intends to establish its own list of mediators, consisting of a certain number of mediators appointed by each State Party, with certain requirements for the qualifications of mediators. If the International Mediation Court accepts three types of cases, namely disputes between states, civil disputes between states and another state, and international commercial disputes, the qualifications and experience of mediators required for these three types of cases are different, and the list of mediators should also be differentiated. In particular, the differences between mediators dealing with disputes between States and those dealing with investment and commercial disputes should be more obvious. In addition, most of the arbitrators and mediators in the existing dispute settlement bodies are from developed countries, and the representation of developing countries is low. According to ICSID statistics, from 1966 to 2022, 66 percent of arbitrators or mediators in registered cases were from Western Europe and North America. The International Mediation Court can also take this opportunity to significantly increase the representation and participation of developing countries.

(3) Conciliation procedures

The International Mediation Court will develop its own rules of mediation, which will be formulated by member States in consultation and promulgated after the establishment of the International Mediation Court and adoption by its decision-making bodies. At the present stage, the preliminary consensus is that the commencement of the mediation procedure must be based on the unanimous consent of the parties, and the implementation of the mediation procedure should follow the principles of voluntoriness, fairness, good faith, efficiency and economy. The high efficiency and low cost of mediation procedure is its "personality label", which is different from arbitration, and it is also an important guarantee of its attraction. Existing international rules in the field of mediation can serve as an important reference for rule-making, including the United Nations Model Rules for the Settlement of Disputes between States, the Mediation Rules promulgated by ICSID, the UNCITRAL Model Law on Mediation and Mediation Rules, the latest results of the reform of ISDS by UNCITRAL Working Group III, and the Singapore Convention on Mediation.

In addition, consideration needs to be given to addressing the relationship and interface between conciliation procedures and other dispute settlement procedures. In order to encourage the use of conciliation mechanisms by parties and to lower the threshold for conciliation, recourse to conciliation should not detract from the right of parties to resort to other means of dispute settlement, while conciliation proceedings should also be allowed to run parallel to other proceedings. The problem that needs to be solved is how to deal with potential conflicts and coordination problems in procedures when several procedures are parallel, such as: can mediation be used as a reason for the suspension of the limitation of other procedures, whether the time limit of mediation should be connected with the time limit of arbitration stipulated in the investment agreement, whether the settlement agreement is regarded as the withdrawal of arbitration, whether it constitutes no bis in idem, etc. This may raise issues of compatibility or coordination of conflicts between the Convention and other treaties, which should be taken into account in the design of the procedure.

(4) Implementation of the settlement agreement

Compared with traditional dispute settlement methods such as arbitration and litigation, mediation fully respects the will of the parties, and all procedures are based on the willingness of the parties. From the perspective of mediation practice, the implementation rate of the settlement agreement reached voluntarily by the parties is higher. At the same time, however, the lack of legal enforcement of settlement agreements is also an important reason that prevents parties from resorting to mediation, which limits the development and widespread use of international mediation, especially in the field of cross-border commercial matters. The Singapore Mediation Convention provides an important legal framework for the cross-border execution of settlement agreements reached in international commercial mediation, directly enforces the enforcement of settlement agreements, and is conducive to the promotion and use of international commercial mediation. As far as the International Mediation Court is concerned, whether a special enforcement mechanism should be set up under the Convention and how to design the relevant rules are also the key and difficult issues to be dealt with in the negotiation of the Convention.

As for disputes between States, the settlement agreement reached by the parties through mediation may be in the form of a treaty, protocol, declaration, communique, exchange of letters or gentlemen's agreement, etc. Its legal effect or nature will depend on the specific agreement itself, and can only rely on the voluntary performance of the state, or in accordance with the principle of adherence to the treaty, by the parties in good faith, but cannot be enforced. Furthermore, taking into account the special nature of State participation in mediation and from the point of view of not affecting the legal position of a State, the United Nations Model Rules for the Conciliation of Disputes between States clearly provide that acceptance by a party of the recommendations made by the Conciliation Commission does not imply recognition of the legal considerations or facts on which those recommendations may be based.

With respect to disputes between States and foreign investors, the ICSID Convention gives arbitral awards the same legal effect and enforcement as the effective judgments of the courts of a State, while clearly not affecting the immunity of States from execution, but does not provide for the effect of settlement agreements, only that the parties should give the most careful consideration to the recommendations of the Conciliation Commission. The Singapore Mediation Convention applies to settlement agreements reached in international commercial mediation, and does not limit the concept of "commercial". According to the broad interpretation of "commercial" by UNCITRAL, it should include investment, that is, settlement agreements reached in international investment mediation can also be enforced by the mechanism of the Singapore Mediation Convention. However, the Singapore Conciliation Convention allows a State party to make a reservation to a settlement agreement to which a government agency or any person acting on behalf of a government agency is a party, declaring that the Convention does not apply. Implementation of settlement agreements resulting from international investment mediation may be limited by reservations made by States parties to the Convention.

Regarding international commercial disputes, the Singapore Mediation Convention can provide a basis for the enforcement of settlement agreements reached through the International Mediation Court, and some countries also have domestic legislation on the enforcement of commercial settlement agreements. However, the above channels can only solve a small part of the implementation of settlement agreements, and most of the settlement agreements still need to be resolved by the International Mediation Court convention. If the Convention does not set up a corresponding enforcement mechanism, it will affect the attractiveness of mediation and hinder the parties from choosing to resort to mediation to resolve their disputes. If one party fails to perform the settlement agreement after successful mediation, the parties can only enforce the settlement agreement through contractual litigation. Therefore, for contract disputes, resolving disputes through mediation is not as effective as directly litigating or arbitration at the beginning. Although in an ideal state, most settlement agreements can be voluntarily performed by the parties, when the parties consider which dispute resolution method to resort to after the dispute has occurred, they will be reluctant to resort to mediation because of the risk of non-performance of the settlement agreement and the unenforceability. And for international commercial disputes, settlement agreements are more difficult to enforce across borders than at home.

5. Capacity building

At present, the countries that initiated the establishment of the International Mediation Court are mainly developing countries, and capacity building is a particular concern of all parties, including how to stipulate capacity building in the Convention, how to carry out relevant activities after the establishment of the International Mediation Court and relevant financial resources. Capacity-building helps the International Mediation Court to achieve its aims and objectives. In addition to providing mediation services, the International Mediation Court is committed to promoting the use of mediation, fostering a culture of mediation, exploring and promoting best practices in mediation, organizing international, regional, national and local forums and conferences on mediation, and building platforms for communication, capacity building and information sharing. For example, the training of mediators and mediation support personnel should be carried out to improve the professional quality and skill level of mediators, expand the number of mediation talents, constantly improve the quality of mediation services, and promote the professional development of international mediation. Conduct mediation training for government officials and practitioners to enhance their awareness and ability to resolve disputes through mediation; Strengthen cooperation with governments, international organizations and non-governmental organizations to share resources and experience. In the future, the International Court of Mediation may also consider setting up a special fund to give priority to the needs of developing countries for capacity building, help them resolve disputes through mediation, increase the participation of developing countries, and train mediation talents from developing countries.

IV. Conclusion

Against the backdrop of profound changes unseen in a century and at the crossroads of the future and destiny of mankind, China and like-minded countries have decided to jointly initiate the establishment of the International Mediation Court to provide new solutions for addressing global challenges and promoting peaceful development with concrete actions. As the world's first intergovernmental international legal organization dedicated to the settlement of international disputes through mediation, the International Court of Mediation will enrich and develop the mechanisms and methods of international dispute settlement, which is of great significance to the promotion of international peace, development and stability of the international order.

The International Mediation Court has entered the stage of substantive establishment. The preparatory work is arduous and the mission is glorious. According to the Joint Declaration and the consensus of the negotiating parties, the negotiation of the Convention is expected to take two years to complete. In addition to the completion of the negotiation of the convention establishing the International Mediation Court, the preparation of a new intergovernmental international organization also involves various issues, including the study and formulation of supporting mediation rules, such as the rules on the mediation of disputes between states, the rules on the mediation of civil disputes between States and other States, the rules on the mediation of international commercial disputes, the rules on the acceptance of cases, etc., and the study and drafting of relevant rules on the operation of the International Mediation Court. Such as rules of procedure of decision-making bodies, administrative and financial regulations and relevant internal rules of the Secretariat. In addition, the International Mediation Institute also needs to negotiate and conclude a headquarters agreement with the host country, as well as advance various preparatory matters before opening, and so on. To this end, we need to pool wisdom, pool efforts and increase mutual trust to jointly build an authoritative, credible, efficient and professional international mediation body.(Author: Sun Jin, Director of the Preparatory Office of the International Mediation Institute; Senior legal Officer, Preparatory Office of Ji Xiaoxue International Mediation House)