by Peter Causton |
The Singapore convention was signed on 7 August but the UK and EU are not yet signatories. It is potentially a great leap forward for international mediation.
The EU is apparently thinking about whether individual states need to sign or the bloc as a whole.
The following countries are signatories:
Afganistán Belarus Benin Brunei Chile China Colombia Congo Democratic republic of Congo Swaziland Fiji Georgia Grenada Haiti Honduras India Iran Israel Jamaica Jordan Kazakhstan Laos Malaysia MaldivesMauritius Montenegro Nigeria North Macedonia Palau Paraguay Philippines Qatar South KoreaSamoa Saudi Arabia Serbia Sierra Leone Sri Lanka East Timor Turkey Uganda Ukraine United States Uruguay Venezuela
Commercial litigators should be aware of the Singapore Mediation Convention being launched on 7 August 2019.
In the end I was unfortunately unable to attend the signing ceremony but was there in spirit!
What does the Convention do?
It provides commercial disputants with the opportunity of mediating and being able to enforce a settlement agreement abroad without a Court order in the UK. Parties should now be able to mediate international disputes online and can be confident that agreements reached can be enforced. Mediation therefore becomes a viable option for dispute resolution on a par with litigation and arbitration. Parties will no longer need to prove breach of contract if a party does not comply with the terms of a settlement. Instead of first obtaining a judgment or award for breach of contract, the Singapore Mediation Convention will allow the enforcing party to go directly to a court in the country where enforcement is sought. That court will then enforce the settlement agreement, unless one of the limited grounds for refusing enforcement set out in the Singapore Mediation Convention applies. In an international context, obtaining a court judgment and enforcing it in a foreign jurisdiction can be very difficult and time consuming.
The Convention is important because it facilitates the enforcement of international commercial settlement agreements resulting from mediation. The Convention applies to “international agreements resulting from mediation” and concluded “in writing” by parties to resolve a “commercial dispute”. The Convention does not cover settlement agreements which (a) have been approved by a court or have been concluded in the course of court proceedings; (b) are enforceable as a judgment in the state of that court or (c) that have been recorded and are enforceable as an arbitral award.
The reason for this is that there are other accepted international instruments such as the New York Convention and the Hague Convention on the Choice of Court Agreements that specifically cover those types of settlement agreements. The Singapore Convention will focus on circumstances where these other instruments do not apply.
The Convention provides autonomy to each State Signatory in not prescribing a specific mode of enforcement. Instead it lists conditions to be fulfilled in order for a State to enforce a settlement agreement under the Convention, i.e.:
– “in accordance with its rules of procedure, and
– under the conditions laid down in this Convention, in order to prove that the matter has been already resolved” (for applicable conditions, see Articles 2(1) and 4).
Following Article 4, a party relying on a settlement agreement shall supply to the competent authority of the State where relief is sought, the following:
(a) the signed settlement agreement; and
(b) evidence that the settlement resulted from mediation
Evidence that a settlement resulted from mediation could include the mediator’s signature on the settlement agreement, a document signed by the mediator confirming the mediation was carried out, or an attestation by the institution administering the mediation or any other evidence acceptable to the competent authority. It is up to each state to decide.
Exceptions to enforcement/Refusing relief
States may refuse relief only if one of five grounds in Article 5 is proved. The five grounds Article 5(1) include:
• Incapacity of a party to the settlement
• The settlement agreement is null and void, inoperative or incapable of being performed under the applicable law
• The settlement agreement
o Is not binding, or is not final, according to its terms
o Has been subsequently modified
o The obligations in the settlement agreement
o Have been performed or
o Are not clear or comprehensible
o Granting relief would be contrary to the terms of the settlement agreement
• There was a serious breach by the mediator of mediator standards
• There was a failure by the mediator to disclose to the parties’ circumstances that raise justifiable doubts as to the mediator’s impartiality or independence
The penultimate and last grounds, relating to mediator conduct, align with Articles 5(4), 5(5) and 6(3) of the 2002 Model Law on International Commercial Conciliation.
In addition, pursuant to Article 5(2), relief may be refused where it is “contrary to the public policy” of the State in which enforcement is sought or the “subject matter of the dispute is not capable of settlement by mediation under the law of that State”.
Mediators might therefore need to change their practices to make sure that they can witness the settlement agreement or provide evidence as to the agreement reached
The Singapore Mediation Convention – which only applies to settlements resulting from mediation of international commercial disputes – will make enforcement easier. Singapore Mediation Convention is modelled on the New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards, and in effect will give mediation settlements the same currency and status as the New York Convention gives to arbitration awards.
This is a huge step in encouraging the use of mediation on an international level, presenting it as a viable alternative to arbitration and litigation for certain disputes.
While simplifying the enforcement processes for mediation, the Convention will also add credibility to mediation as an international dispute resolution process – especially for cross border disputes. This development is a response to a demand for more choice of alternative dispute resolution methods on a global level. It may result in more international mediation and some of this could be online mediation as in lower value disputes or where great distances are involved it is no longer necessary to incur the travel costs of holding a mediation in another country.
#mediators #mediator #alternativedisputeresolution #disputeresolution #adr #mediation
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