One important aspect of the legal effects of CIL within the EU legal order concerns the questions of whether CIL can be relied upon in EU law-related administrative or judicial proceedings and, correspondingly, whether administrative and judicial authorities are obliged to apply CIL in such proceedings in order to decide the case at hand. This is the problem of the ‘invocability’, ‘enforceability’ or the ‘direct effect’ of EU law. As there has so far only been marginal treatment of the direct effect of CIL (as opposed to that of international agreements), the chapter aims at clarifying whether and to what extent the solutions devised for the direct effect of international agreements can be transferred to CIL, that is, whether the ‘treaty analogy’ holds. In this regard, the chapter pleads not only for a uniform direct effect test for international agreements and CIL norms, but for a uniform direct effect analysis for all provisions of EU law, internal and external alike. The chapter further argues that the existing differences among the various types of EU law norms as well as the specificities of each individual provision can be adequately dealt with by applying a context-sensitive analysis of the respective provision of EU law.

Commercial contracts frequently contain mediation clauses requiring parties to mediate as part of a sequence of dispute resolution methods, where they progress from consensus to evaluative methods until resolution is reached. Careful drafting is required to ensure such clauses are effective and enforceable. The primary issues relevant to the enforceability of mediation clauses include severability, certainty, completeness, attempts to oust the court’s jurisdiction, additional policy considerations, certainty, waiver and remedies for breach of mediation clauses. While compliance with mediation clauses is not easy to determine, only the narrowest of requirements has proven workable in practice. Regional and international instruments covering mediation tend not to provide for the enforcement of mediation clauses. There is an international trend towards obligating legal advisors to discuss with their clients whether their commercial disputes are suitable for mediation, and policy in many jurisdictions is moving towards penalising parties where mediation is not given due consideration. Similar to mediation clauses, agreements to mediate require careful drafting to ensure enforceability.

Different studies in the human rights sector and in the water and sanitation sector have explored the concept of accountability and aimed to formulate how the concept might be applied to the specificities of the sector. However, there is no widely understood or agreed definition of the concept, in particular in the context of the realization of the human rights to water and sanitation. Therefore, clarification of the concept is essential for that sector, which involves a variety of actors related to the realization of those rights, including government entities (i.e., central and local governments and regulators), international organizations, transnational and national corporations and non-governmental organizations (NGOs). There is also a feeling that a strong accountability benefits the improved access to water and sanitation services.

In the USA, commercial contracts often include tiered or stepped dispute resolution schemes that comprise multiple, varied mechanisms for resolving conflict. Contractual relationships are particularly suitable for tiered processes that accommodate business priorities, although critiques raise issues regarding necessity, utility and enforceability. Where courts have found contractual negotiation or mediation provisions to be valid and enforceable, the manner in which they address non-compliance under such agreements varies. When a party to a multi-step process fails or refuses to participate in contractually required negotiation or mediation prior to arbitration, there may be issues as to whether the consequences should be addressed in court or via arbitration. Despite being conventionally disfavoured in the USA, many neutrals have experience with ‘switching hats’ – ie moving from being mediator to being arbitrator, or vice versa – in the course of resolving disputes. Guidelines for the use of multi-tier processes take into account the uncertainties associated with judicial handling of stepped agreements as well as their inherent complexities, while recognising potential benefits.

This chapter assesses multi-tiered clauses from an English perspective. It retraces the developments in case law which established strict criteria regarding the enforceability of these clauses and alerts parties to numerous pitfalls in the drafting process. Furthermore, it discusses the English approach to good faith in negotiations which also has an impact on the drafting and interpretation of multi-tiered clauses.

Since antiquity, arbitration has been well known in the Italian peninsula.1 Basic rules of arbitration are today spelled out in the Italian civil procedure code (hereinafter CCP). The code was enacted in 1940, but has, since then, undergone radical changes, including a comprehensive reform in 2006.2 Despite the fact that current rules are largely in line with those of other countries and with international legal standards, Italy is generally perceived, by insiders and outsiders alike, as a nonfriendly arbitration country.3