4 May 2025
Amid rising geopolitical tension, mediation is gaining traction in international contracts—but its effectiveness depends on clear wording and local legal interpretation.
In an era of heightened geopolitical and economic uncertainty, international businesses are under increasing pressure to manage disputes swiftly and strategically. One of the most promising tools?
Mediation.
Often embedded in multi-tiered dispute resolution clauses, mediation is lauded for its confidentiality, flexibility, and cost-efficiency. But how enforceable is that mediation clause you tucked into your last international contract?
A Dutch Turning Point
In July 2024, the Dutch Supreme Court ruled on a dispute between two professional parties over whether their contractual mediation clause was enforceable (ECLI:NL:HR:2024:1078). The Court confirmed that such clauses can be binding in B2B contexts—but crucially, whether they are enforced will depend on the exact wording and the tribunal or judge’s discretion.
As summed up in a recent Houthoff article, this leaves room for uncertainty:
“The Dutch Supreme Court’s decision reaffirms that mediation clauses can be binding upon professional parties, yet it leaves the enforcement of such clauses largely to the discretion of arbitral tribunals, potentially undermining their effectiveness.”
In short: your mediation clause might only be as strong as the words used—and the hands interpreting them.
It’s Not Just the Netherlands
The recent Dutch Supreme Court ruling adds to a growing body of international jurisprudence confirming that mediation clauses—when properly drafted—can be binding and enforceable. While some jurisdictions have long upheld such clauses, others are only more recently aligning with this approach. Together, these developments underscore that if businesses want their mediation clause to bite, it must be clear, operational, and deliberate.
Here are some illustrative cases from different jurisdictions:
Some illustrative cases:
These cases reflect a broader trend: well-crafted mediation clauses are being taken seriously, even by the highest courts and tribunals. Ignore them at your peril.
What Should Businesses Do?
As the ICC’s recent guidance makes clear, dispute resolution clauses are no longer boilerplate. They’re strategic. Here’s how to make them work:
Why It Matters for ICC Arbitration Users
ICC Arbitration embraces efficiency and procedural integrity—but real efficiency starts with the contract. Mediation clauses, when done right, can de-escalate conflict before it becomes legal war. When ignored or drafted poorly, they can become yet another source of friction.
And as the Dutch case illustrates, even when mediation clauses are valid, enforcement may hinge on interpretation—raising the stakes for precision and consistency.