Abstract:
Are mediation clauses in commercial contracts legally enforceable? The orthodox stance of commonwealth courts is that they are not. This is largely due to an erroneous conflation of mediation clauses with agreements to agree. With recent first instance decisions such as Cable & Wireless plc v IBM United Kingdom Ltd and the subsequent case of Hyundai Engineering and Construction Co Ltd v Vigour Ltd, the tide may have turned in favour of the enforceability of mediation clauses. This article discusses the issue in light of recent case law. It will proffer that it is now inevitable mediation clauses will be accepted as legally enforceable. It will explore practical methods of enforcing mediation clauses.