ADR CORNER
The Singapore Convention on Mediation and Its Impact
ROSINE M . PLANK-BRUMBACK
A new international instrument has joined the ranks of multilateral treaties governing the resolution of cross-border commercial disputes . Its official name is the United Nations Convention on International Settlement Agreements Resulting from Mediation . The treaty enables the enforcement of mediated settlements by its ratifying states . It aims to promote the use of mediation as an alternative to litigation and arbitration , to preserve commercial relationships , as well as to facilitate broadly international trade and investment , contribute to harmonious international economic relations , and promote access to justice for all by bringing greater certainty and stability to the international framework on mediation .
The treaty is known as the Singapore Convention ( the “ Convention ”) as Singapore ’ s government played a key negotiating role and hosted the treaty signing ceremony on August 7 , 2019 . To date , 53 States have signed the Convention , including the United States , China , India , and South Korea . By signing , a State shows it intends to take steps to implement and be legally bound domestically by the treaty ; i . e ., ratification at the “ national ” level . The Convention entered into force on Sept . 12 , 2020 . To date only 6 States ( Belarus , Ecuador , Fiji , Qatar , Saudi Arabia , and Singapore ) are Parties to the Convention having ratified it at the “ international ” level ; i . e ., expressing to the international community they undertake the treaty ’ s obligations to enforce mediated settlement agreements , by “ depositing ” ( or submitting ) their ratification instruments with the UN .
The Convention applies to international settlement agreements resulting from mediation that are concluded in writing by the parties ( to the settlement agreement ) to resolve a commercial dispute . Specifically excluded from the Convention ’ s scope are : settlement agreements concluded by a consumer for personal , family or household purposes ; settlements relating to family , inheritance or employment law ; court judgements ; and arbitral awards . States may also exclude from the Convention ’ s application settlement agreements to which they or any of their governmental agencies are a party , by entering a reservation .
A settlement agreement is defined as “ international ” generally when at least two parties to the agreement have their places of business in different States . A settlement agreement is “ in writing if its content is recorded in any form ” including by electronic communication . Mediation is defined as “ a process , irrespective of the expression used or the basis upon which the process is carried out , whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (‘ the mediator ’) lacking the authority to impose a solution upon the parties to the dispute .”
Each State Party to the Convention is obligated to enforce a settlement agreement “ in accordance with its rules of procedure and the conditions laid down in ” the Convention . Normally a party seeking compliance with a mediated settlement agreement has to litigate the matter as a contractual dispute . Under the Convention , the party only needs to supply to the “ competent authority ” of the enforcing State Party where relief is sought , the agreement signed by the parties and evidence that the settlement agreement resulted from mediation ; e . g ., the mediator ’ s signature on the agreement or the administering institution ’ s attestation .
The competent authority of the enforcing State Party may refuse to grant relief if the party against which relief is sought furnishes proof , for example , of the incapacity of a party to the settlement agreement , its invalidity , or circumstances that raise justifiable doubts about the mediator ’ s impartiality or independence . Other grounds for denying relief are public policy or the subject matter not capable of mediated settlement under the enforcing State ’ s law .
The Convention was the negotiating work product of many countries with different legal , social , and economic systems . It necessarily represents compromise and sometimes constructive ambiguity . Importantly , the enforcement of settlement agreements does not depend on the seat of the mediation process ( it can be online )
PBCBA BAR BULLETIN 5 or whether the process was formally labeled as mediation . The Convention ’ s impact will depend of course on how it is operationalized , especially as much relies on the enforcing State ’ s procedural rules . The Convention does not establish professional or ethical rules of conduct for mediators or the mediation process , but references the applicable national standards . These standards may differ , particularly for conflict of interest . There is no definition of “ competent authority ” nor provision for Parties to indicate which is their national competent authority for Convention purposes . Moreover , businesses are able to contract out of the Convention in their commercial contracts .
The Convention ’ s impact also depends on how many more states ratify it . A big lacuna is that no EU country has signed the Convention as the EU has its own enforcement directive . Local mediators and mediation attorneys may take greater pride in their work knowing that mediation is gaining in international respectability , enforceability , and recognition . But the practical extent to which business clients can enforce settlement agreements by pursuing assets of non-compliant parties in Belarus or Fiji is questionable . Perhaps the biggest value and impact of the Convention is that its mere existence deters noncompliance with mediated settlement agreements .
Rosine M . Plank-Brumback is a Florida attorney , trade policy consultant , and Consulting Senior Fellow at Georgetown University ’ s Institute of International Economic Law . She is a member of the International Panel of Arbitrators of the International Centre of Dispute Resolution of the American Arbitration Association and is on the rosters of arbitrators under several international free trade agreements . She has held positions at the Organization of American States , the GATT Secretariat , the U . S . Mission to the European Communities , and the U . S . Foreign Agricultural Service .
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee /