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Arbitration has evolved from a pragmatic, de casu ad casum applied mechanism, towards a growing self-recognition as a method of transnational system of administration of justice. The development of international arbitration towards an autonomous legal order is one of the most remarkable institution buildings at the global level. The autonomous view sees arbitration as deriving its original legitimacy not from a consent within a specific legal order or orders, but rather from a general, initial authorization offered by the community of the States, and later fulfilled by the arbitral tribunals without further States' intervention, and thus detached from a national order. This conceptualization has been connected with general theories pointing to the development of "global legal order(s)", free from traditional intervention and control exercised by the States. For instance, Gunther Teubner's characterization of the new lex mercatoria as a model global law without a State was based on its formulation and application independently from domestic legal systems thanks to arbitral decision-making. In this context, how will an authoritarian state like China react to the trends of trans-nationalization and autonomization of arbitration? What role will China play in the development of international dispute resolution mechanism? Is China showing signs of adapting to the current trend of transnational standards? On the other hand, will the Chinese legal culture and practice characterized by informalism and flexibility offer a counter-force to the increasing proceduralization, formalization, judicialization of arbitration, or the colonization of arbitration by litigation, and thus influence the future direction of transnational norms?This article will highlight the recent developments of China's commercial dispute resolution mechanism, and illustrate China's two-way adaptations towards transnational standards, as a result of the constant interplay between the global formal regulation and local informal practice, predictable regulation and flexible practice, and the clashes between the increasingly cosmopolitan professional culture in the arbitration community and deeply rooted demands of national culture. On the one hand, China is following the trend of harmonization, making adaptations to global norms. This move is essentially driven by the market force, when "economic actors seek more predictability through reliance on formalized processes for managing transactions, and also to seek more formal limits on state power". Arbitration is developed through the practice within the community, rather than imposed top-down from outside the community. While States have to endorse and embrace the norms, the norms then developed independently, based on the expectations of the users, rather than requiring arbitration to adapt to the specific requirements of the State. Despite the limitations on party-autonomy in the legislation, other non-state actors (i.e., arbitration institutions and individuals such as judges, arbitrators, case managers and lawyers) also exert an essential influence on the arbitration reforms in China. In order to make China a more appealing hub of dispute resolution to meet the needs of users, various stakeholders have made various innovations and adaptations to bring the practice of arbitration more in line with transnational standards, as a result of the marketization of arbitration in China.On the other hand, China is also taking an increasingly active role in shaping the global norms. Signs of China's "selective reshaping" of institutions and rules have been found in trade, investment, and international finance. In the field of dispute resolution, China's deeply rooted tradition of informal means of dispute resolution may be of value to the practice in other jurisdictions. The users' constant search for predictability has led to the increasing judicialization of arbitration, when the international commercial arbitration laws and procedures increasingly replicate national judicial procedures, national laws and their legal intricacies, which departs from arbitration's original purpose of offering an alternative resolution to the court proceedings. This has resulted in an opposing trend of hybrid processes and mixed mode dispute resolution, with China playing a leading role in this trend. Such a form of impact onto arbitration proceedings can be seen as further extending the space free from States' control and thus contributing to the processes of autonomization of arbitration. These recent developments show China's efforts to balance the globalization and localization of its commercial arbitration and mediation practice, including both localized globalism and globalized localism—the "glocalization" process.

Judicial mediation, being essentially policy-driven, has been widely practiced in China without a solid theoretical and institutional framework. In an authoritarian state, while politics and law serve as normative restraints on judges from acting on their personal preferences, they are not the exclusive reasons shaping judicial behavior. Judges are not just policy maximizers or mechanical legalists. They are human beings. Beyond law and politics, which has been the focus of prior research on judicial mediation in China, how will other factors influence individual judicial behavior in China? The role of judicial mediation and informal justice in contemporary China also begs further questions. How do the gains of efficiency and substantive justice compare with the potential losses of procedural protections? Is the mandate of the judges to resolve the disputes between the parties by the most appropriate means, or is it only an attempt to render and enforce an authoritative binding decision? Do judges see themselves as a dispute resolver to resolve the immediate conflicts between the parties or as a guardian of justice that transcends the parties? Through a series of interviews of Chinese judges in six courts in three different cities at different stages of economic developments, the research provides an empirical narrative on how judicial mediation is actually practiced in China, and analyzes values and limitations of judicial mediation. The paper empirically illustrates the multiplicity of influences on judicial behavior in China, including personal motivations (such as promotion and sense of honor), identity (such as judges' seniority and position in the court, their age, professional competence, social experience, and personal characteristics), consideration of the possible reactions from other relevant actors (such as external pressure from political leaders, risks of appeal, remand or overrule from higher courts, and possible petitions from disputants), as well as cognitive biases (such as human sentiments, empathy, and emotions). The study also reveals the perception of the role of judges in China. The Chinese judges believe that their role is to proactively assist the parties in resolving their conflicts in the most appropriate means, which is not limited to rendering and enforcing binding decisions. They also tend to seek substantive justice in resolving the immediate disputes between the parties, with less attention paid to the procedural protections.Conceptually, the paper aspires to contribute to the field of comparative judicial behaviour, which shifts the focus of traditional comparative law on the legal structure, argument, and interpretation to a positive perspective, striving to describe and explain judges' choices and their consequences through empirical methodologies. This study attempts to expand our inquiry beyond the focus on the role of politics and law when analyzing judicial behavior. The paper advocates for a combination of different approaches, drawing upon methods in economics, sociology, social psychology, organizational sociology, political economy, and behavior economics.

The concept of mediation is not new. Long before law was established, courts were organized, or judges had formulated law, people resolved their disputes informally through negotiation or mediation. Historically, states also used mediation to resolve their conflicts. In some cultures, such as China's deeply rooted Confucian philosophy emphasizing harmony and conflict avoidance, mediation was used not an alternative, but an essential—and integral—part of the dispute resolution system.In modern society, mediation and other forms of alternative dispute resolution ("ADR") regained popularity in reaction to the increasing proceduralization, formalization, and judicialization of arbitration, or the colonization of arbitration by litigation. This is particularly true in the field of investor-state disputes. Investor-state arbitration is becoming more confrontational, more lengthy and costly, and more judicialized. The final result may be unsatisfying, even to a winning party. For instance, in the case of Metalclad Corporation v. The United Mexican States, after winning a seventeen million dollar arbitral award against Mexico, the Chief Executive Officer of Metalclad expressed regret at having resorted to this mechanism by noting that despite "winning" the case, the arbitration had been so dissatisfying that he wished the company had relied on other options to resolve the dispute. The proceedings had spanned approximately five years, involved a battle in domestic courts, and the claimant's side alone had an estimated four million dollars in direct and indirect costs. No doubt there were considerable costs endured by Mexico as well. This case shows "how the nominal winner is often a real loser—in fees, expenses, and waste of time," as President Abraham Lincoln famously noted.In the widely discussed case of Achmea BV v. Slovakia, the arbitral tribunal remarked at the close of the hearing that it had a sense "that a settlement in this case would be a good thing, in that the aims of both sides seem to be approximately aligned, and that the black and white solution of a legal decision in which one side wins and the other side loses is not the optimum outcome in this case."In light of some Governments' and Non-Governmental Organizations' ("NGOs") increasing distrust of investor-state arbitration, mediation regained its momentum as a method of resolving investor-state disputes ("ISD"). Consider, for example, the inclusion of mediation in the dispute settlement provisions of a growing number of international investment treaties ("IIAs"), including Model Bilateral Investment Treaties ("BITs"), and multilateral investment treaties. Mediation's momentum is also reflected by the Convention on International Settlement Agreements Resulting from Mediation ("Singapore Convention"), a new multilateral framework for the recognition and enforcement of mediated settlements. The Singapore Convention opened for signature in August 2019 and has been signed by forty-six nations so far, including China and the U.S. Although the Singapore Convention only applies to commercial disputes, the spirit and mechanism it embodies would apply with equal force to state-to-state and investor-state disputes. In this context, what are the challenges and values of using mediation to resolve investor-state dispute? What is the existing framework with respect to the use of mediation in investor-state disputes, including treaties and soft laws? What will the future look like? This Article intends to address these questions surrounding the use of mediation to resolve ISD. Section II will address the challenges of investor-state disputes. Section III will discuss why mediation might be particularly beneficial in the ISDS context. Section IV will examine the existing legal framework with respect to investor-state mediation through an extensive treaty survey. Section V looks at the "soft laws" that provide specific guidance on mediation for ISD. Finally, Section VI concludes with prospects to the future.

This contribution discusses the structure of China's judicial system and the way that its constituent courts interact in the field of arbitration. In particular, it examines the multiple roles played by the Supreme People's Court. Through the issuing of judicial interpretations and publication of guiding cases, the Supreme People's Court has an important role in filling the gaps in China's arbitration legislation. In addition, the "Report and Approval" system, by which lower court decisions finding an arbitration agreement invalid, or setting aside or refusing to recognize or enforce an award, are subject to review by the Supreme People's Court, thereby reducing the risk of lower court corruption and protectionism, has been key to the development of international arbitration in China. Finally, the Supreme People's Court's creation of the China International Commercial Court (CICC) as a "one-stop" centre for international dispute resolution is an important part of China's Belt and Road policy.

This paper reports the findings and recommendations of Working Group 3 (WG3) of the Mixed Mode Task Force, which explores the topic of mediators using non-binding evaluations and making settlement proposals as a form of the Mixed Mode Dispute Resolution. Mediators employing such techniques might express their assessment of the strength of a party's case, predict the outcome of any arbitration or litigation that might follow the mediation or, at the parties' request, make an outright suggestion of how the parties could settle the dispute. WG3 provides a framework for assessing a mixed mode within a mediation process. It puts forth that mediators should explicitly discuss process design with parties, in light of WG3's Grid Regarding Party Autonomy in Mediation and Conciliation and the potential impact of a mediator's intervention on parties' self-determination regarding substance and process. Moreover, WG3 shows how a mediator can align and adapt mediation techniques with the parties' process choices regarding substance and process.WG3 provides a framework for assessing a mixed mode within a mediation process. It puts forth that mediators should explicitly discuss process design with parties, in light of WG3's Grid Regarding Party Autonomy in Mediation and Conciliation and the potential impact of a mediator's intervention on parties' self-determination regarding substance and process. Moreover, WG3 shows how a mediator can align and adapt mediation techniques with the parties' process choices regarding substance and process.