Following a consultation which closed on 1 April 2022, the government has confirmed that it will be signing the Singapore Convention.
It says in the response that:
“The Government has concluded that it is the right time for the UK to become a Party to the Singapore Convention on Mediation, as a clear signal to our international partners that the UK is committed to maintaining and strengthening its position as a centre for dispute resolution and to promote the UK’s flourishing legal and mediation sectors.
6.2 Mediation is a dispute resolution process which is integral to the UK justice system, and it is estimated that commercial mediation can save businesses around £5.9 billion per year in management time, relationships, productivity, and legal fees with the value of UK mediated cases each year being estimated at approximately £20bn as of February 2023…
The Government has also set out its vision to integrate mediation as an essential step within the court process for civil claims
6.3 Commercial mediation can support businesses who may be looking for more cost-effective methods of resolving their disputes, outside of the traditional routes of litigation and arbitration, with aspirations of preserving their important and potentially long-standing business relationships by reaching an amicable and mutually agreed resolution. The uniform framework for the effective recognition and enforcement of international mediated settlement agreements, which the Convention provides, will increase confidence to trade across borders and between different legal jurisdictions, by providing a clear and expedited process for resolving commercial disputes through mediation.
6.4 The Convention’s non-reciprocal nature means that the settlement agreements that UK courts may be asked to enforce, as a Party to the Convention, do not need to have been concluded in the jurisdiction of another Contracting State. The UK will therefore have a duty to recognise and enforce settlement agreements from any jurisdiction, provided they meet the international and other criteria of the Convention. This will enable wide application of the Convention and wider use of mediation agreements, reinforcing and potentially increasing the UK’s attractiveness as a respected jurisdiction for international dispute resolution.
6.5 Mediation practice is well-established in the UK, including the negotiation and enforcement of cross-border mediated settlement agreements, meaning that the UK is well-placed to implement and operate the Convention. The UK has a mediation sector with a wealth of experience in dealing with complex mediated settlement agreements, and world-renowned justice systems ready to apply and enforce the provisions of the Convention.
6.6 The Singapore Convention will not only boost the mediation sector in the UK and internationally, but signing and ratifying will also reaffirm the UK’s intention to build upon its long history of leadership in international law-making fora such as the UN and the Hague Conference on Private International Law, by strengthening the UK’s existing Private International Law relationships and establishing new relationships with international partners across the globe. The Convention could also present opportunities for the UK in the Indo-Pacific, Middle East, and Africa, given the wide geographical reach of the signatories and those who have ratified so far, aligning with the ambitions of the Government’s Integrated Review of 16 March 2021
Specific provisions and Implementation
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The Convention will … be applicable to any commercial cross-border mediated settlement agreement
6.11 It should be noted that parties will still be able to opt-out of the Convention if they so wish, by explicitly stating in their agreement that the Convention should not apply, thereby retaining autonomy without limiting the Convention’s application in the UK. This opt-out would fall under Article 5(1)(d) of the Convention as confirmed at the 51st Session of the UNCITRAL (25 June-13 July 2018), where it was recommended that the UN General Assembly consider, with a view to adopting, the Convention, it was clarified that Article 8 ‘subparagraph 1 (b) referred to an opt-in possibility, and that article 5, subparagraph 1 (d), would find application where the parties would agree to opt out of the application of the draft convention.
6.12 The Government considers that signing and ratifying the Convention in full, without reservations, will allow the UK to reaffirm its position as a hub for international dispute resolution and applying neither reservation will support this notion.
Signature, Ratification and Entry into Force
6.13 The Convention allows for parties to both sign and ratify at the same time. However, many parties have signed the Convention without ratifying immediately. The Government will move to sign the Convention as soon as possible, as an important signal of the commitment to mediation and to maintaining the UK’s position as a centre for international dispute resolution. Ratification will take place once all of the necessary implementing legislation and rules have been put in place to facilitate the Convention’s smooth operation in the UK.
6.14 The Convention will come into force in the UK six months after the UK has deposited its instrument of ratification with the UN Headquarters in New York. The UK will champion the Convention internationally to encourage further ratifications.
Other specific provisions and implementation under consideration
Signing up to the convention can only be positive for mediators and parties involved in international dispute resolution.
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Ground for refusing relief and mediator standards
6.19 The Government has noted concerns as to how Article 5(1), the grounds for refusing relief, would operate in cases where an enforcing court is faced with party disagreement over how the terms of the agreement should be interpreted, given that the purpose of the Convention is to enable settlement agreements to be enforced without the need to prove breach of contract.
6.20 The Government has also noted concerns regarding the provisions of Article 5(1)(e) in particular, which refers to a serious breach of mediator standards. The Government notes that the UK does not have a set of standards for mediators but that a large number of mediators are registered with voluntary registration bodies which set behaviours as a condition of membership, and that mediation is often conducted by UK legal practitioners whose professional conduct for reserved legal activities will be subject to regulation by professional legal bodies and they would be expected to act in accordance with standards of conduct in all their activities. The government is consulting on regulating or strengthening the voluntary self-regulation already in place for mediators operating in England & Wales. The Government will continue to consider these concerns and the implications of implementing the Convention.
Role of the Courts in enforcing mediated settlement agreements
6.21 The Government has noted respondents’ views that mediated settlement agreements can contain wide-ranging provisions which a party could later seek to enforce and therefore a judge could, on occasion, be asked to enforce an agreement under the Convention where they may not have previously had jurisdiction to hear a dispute. There was some suggestion that the Court may therefore require some additional powers to ensure the effective enforcement of the provisions of the Convention.
Oral settlement agreements
6.22 One respondent stated that oral mediated settlement agreements are currently recognised in Scotland and that this should therefore be taken into consideration when considering implementing the Convention.
Relevant Competent Authority
6.23 The majority of respondents indicated that the High Court is the most appropriate Competent Authority in England and Wales to consider applications for enforcement of cross-border mediated settlement agreements under the Convention. With regards to Northern Ireland and Scotland, it has been suggested that the relevant Competent Authority will be the High Court of Northern Ireland and the Court of Session respectively.
Code of conduct and recording mediation data
6.24 Some respondents considered that the development of a code of conduct to work alongside the Convention could give greater legitimacy to mediation and more uniform standards, including suggestions that training or the attainment of certified standards for mediators and could also be considered to reinforce the UK’s commitment to high standards in dispute resolution. It has also been suggested that the Ministry of Justice could establish a centralised data recording mechanism to improve data recording capabilities in the mediation sector.
Implementing legislation
6.25 The Government will lay the Convention in Parliament ahead of ratification and will ensure that implementing legislation is in place for the three jurisdictions ahead of doing so.
6.26 The Private International Law (Implementation of Agreements) Act 2020 contains regulation-making powers that can be used to implement the Convention in England and Wales, Scotland, and Northern Ireland.
6.27 In each jurisdiction of the UK, implementation will include amendments to rules of court. New or amended Civil Procedure Rules will be required to enable the effective operation of the Convention in England and Wales. Similar changes will be required to the Session Rules in Scotland and High Court Rules in Northern Ireland. The Government will work closely with the relevant authorities of England and Wales and the devolved administrations of Scotland and Northern Ireland with regards to such changes and other aspects of implementation in the three jurisdictions.”
Comment:
The Singapore convention makes it easier to enforce mediation settlement agreements in other jurisdictions, making such agreements more effective.
The full consultation outcome paper can be found here: https://www.gov.uk/government/consultations/the-singapore-convention-on-mediation/outcome/government-response-to-the-consultation-on-the-united-nations-convention-on-international-settlement-agreements-resulting-from-mediation-new-york-20