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S. I. Strong

Abstract

International lawmaking has become an increasingly important feature in today’s globalized society, although the process is often complicated and less than transparent to outsiders. Most scholars seeking to understand international lawmaking adopt a political paradigm. However, it is critical to consult other analytical models if every facet of the process is to be fully appreciated.

This Article expands the conventional understanding about international lawmaking by applying a negotiation-analytic perspective to certain ongoing deliberations at the United Nations Commission on International Trade Law (UNCITRAL). In particular, the analysis considers how disparities between different epistemic communities could affect the shape and future of a proposed instrument on the international enforcement of mediated settlement agreements and whether the clash of cultures will prove fatal to the development of a new international instrument in this area of law.

Specialists in international dispute resolution will be especially interested in this discussion, given the subject matter of the proposed instrument. For example, by helping various participants in the process appreciate the dynamics at issue in the current deliberations, this Article will help improve negotiation techniques and outcomes, particularly among arbitral specialists who see the proposed instrument as a threat to the hegemony of international commercial and investment arbitration.

However, the analysis is also relevant to those in other fields, since it provides useful insights into the international lawmaking process more generally. In particular, the discussion identifies the difficulties experienced by newly formed epistemic communities seeking to expand their sphere of influence in international policymaking. As a result, this Article is of interest to a broad range of readers, including experts in international law, international relations and international dispute resolution.

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