INTRODUCTION Contributed by: Paul P. Jebely, Paul P. Jebely
support for the enforcement of arbitral awards more generally. The CTC, through its asset-based remedies, seeks to enable rapid and predictable recovery and redeploy - ment of aviation assets, while arbitration’s primary focus is addressing rights beyond the scope of these remedies where available. For the time being, no arbi - tral court is defined as a “court” under the CTC. Of note, this means that the CTC’s Article 42 jurisdiction provisions do not apply to any arbitral court. As such, any arbitral order seeking enforcement lacks the CTC- backed authority of an equivalent court order. Further - more, the New York Convention provides guardrails to prevent overreach by limiting the enforcement of arbitral awards in certain scenarios. Therein lies the true barrier between CTC and arbitration – the chal - lengeability of an arbitral award that overreaches in so far as two of the rather limited bases for a New York Convention contracting state not recognising and enforcing an arbitral award apply: (i) if the subject matter of the arbitral award is not capable of settle - ment by arbitration under the law of the contracting state (which would be the case if the CTC applied), or (ii) if the award goes beyond the scope of the submis - sion to arbitration (which, again, would be the case if arbitration applied). The benefits and use of mediation in aviation contractual disputes Though much substantive focus and bandwidth is placed on arbitration, it is crucial to highlight the equal - ly significant role that mediation can play in resolving aviation contractual disputes. While there are many forms of mediation, with the three main categories being facilitative, evaluative and transformative, we will focus on the most common facilitative form for our purposes here. Similar to arbitration, mediation offers numerous advantages tailored to the complex and cross-border nature of the vast global aviation industry. To begin with, mediation, like arbitration, provides an efficient, confidential, and flexible method of dispute resolution. The typically voluntary and collaborative nature of mediation can often lead to a time- and cost-efficient process to reach resolutions compared to the natu - rally more costly and adversarial processes of arbitra -
tion and especially of litigation. This efficiency is par - ticularly valuable where operational delays can have substantial financial and logistical repercussions, for example. Additionally, mediation also maintains confi - dentiality, safeguarding sensitive business information and protecting the reputations of the parties involved. This is analogous to the confidentiality benefits offered by arbitration, ensuring that the aviation contractual disputes do not become public spectacles. The flexibility of mediation allows parties to control the process and outcomes more directly even com - pared to arbitration, but especially compared to litiga - tion. The mediator facilitates dialogue but does not impose decisions, enabling parties to explore crea - tive solutions that might be unavailable in arbitration or litigation. This adaptability is crucial in the aviation industry, where disputes often involve a labyrinth of technical, regulatory, and commercial considerations. By encouraging open communication and fostering mutual understanding, mediation can preserve and even strengthen business relationships, which is inval - uable in the interconnected world of aviation. Much can also be said for an approach that allows parties to benefit from the collaborative and flexible nature of mediation while also having the option to transition to arbitration (or litigation, as the case may be) if a resolution cannot be reached. This ensures that the process remains efficient and that a binding resolution is ultimately achieved, providing parties with both the benefits of consensual agreement and the certainty of an enforceable decision. This approach is particularly useful in high-stakes, complex disputes where maintaining control over the process and out - come is essential. Mediation also transforms the negotiation process by creating a structured environment that facilitates productive dialogue and mutual understanding. It encourages parties to move beyond entrenched positions and focus on underlying interests, enabling them to find common ground and reach agreements that are more likely to satisfy both parties’ needs. This approach is particularly effective in emerging disputes in complex transactions where the stakes are high, and the relationships between the parties are critical to ongoing commercial dealings. It is fair to say that
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