ReSolution Issue 22, September 2019 | Page 42

international commercial dispute once the question of enforcement is adequately addressed.
However, this begs the question: how can a party rely on the enforcement mechanism provided for by the Singapore Convention to enforce the mediated settlement agreement if the mediation process does not result in any settlement at all? The issue of uncertainty would remain.
Although it is difficult to assess with any degree of accuracy, it has been reported that there seems to be a high success rate “in terms of the proportion of cases in which an agreement is reached between the parties”23 where they elect to mediate their dispute. Nevertheless, even the existence of a high success rate does not provide the certainty sought, certainly not to the same extent as arbitration can under the New York Convention.
In my view, it is unlikely that the Singapore Convention would have any significant additional impact on the facilitation of trade and investment in the Trans-Pacific Region when compared to the New York Convention. As a standalone piece of law, it provides less reassurance to a potential investor in terms of certainty of outcome than the New York Convention already would.
However, although the facilitation of trade and investment and consequent increase in FDI is a much-lauded objective, it is only one aspect of the overall picture.
So far, careful consideration has been given to the needs of the external investor looking to engage and contract with local commercial enterprises. However, in evaluating the relative merits of international commercial arbitration and international commercial mediation as dispute resolution processes, one must not only consider the needs of those foreign investors but also the needs of the host country counterparties with whom the foreign investor seeks to trade.
Three significant additional benefits can be readily identified as being likely to flow should mediation within the ambit of the Singapore Convention be an option for disputing parties, namely the ability to: (a) better meet the diverse cultural needs of stakeholders operating within the Trans-Pacific Region; (b) obtain more flexible and creative solutions to commercial disputes; and (c) improve access to fair, effective, prompt and cost proportionate dispute resolution options that have the capacity to generate binding, recognisable and enforceable outcomes.
Look out for Part Four of this series: ‘Addressing Diversity and Culture’End Notes
1 T K Jayaraman and Chee-Keong Choong “Foreign direct investment in the South Pacific Island Countries: a case study of Fiji” (2006) 2 (4) World Review of Entrepreneurship Management and Sustainable Development 309 at 310.
2 Theodore Moran “Foreign direct investment” in The Wiley-Blackwell Encyclopaedia of Globalization (Blackwell Publishing Ltd, 2016) at 1.
3 Peter Svedberg “Colonialism and Foreign Direct Investment Profitability” in John Black J and John Dunning (eds) International Capital Movements: Papers of the Fifth Annual Conference of the International Economics Study Group (Palgrave Macmillan, London, 1982) at 172-194.
4 Thomas G Parry “Foreign Investment and Industry in the Pacific Islands” (1988) 22 (3) The Journal of Developing Areas at 381 at 381.
5 The World Bank “Countries and Economies” < https://data.worldbank.org/country/>.
6 The World Bank “Foreign direct investment, net inflows (% of GDP)” < https://data.worldbank.org>.
7 Robert Picciotto “The Pacific Islands: New Priorities for a New Development Era” (2018) 4 (4) JAPSS 527 at 538.
8 Parry (above) at 389. Simon Feeny, Sasi Iamsiraroj and Mark McGillivray “Growth and Foreign Direct Investment in the Pacific Island countries” (2014) 37 Economic Modelling 332.
9 Feeny (above) at 333.
10Samoa, Solomon Islands and Vanuatu.
11 Fiji, Papua New Guinea and Tonga.
12 Hong Chen and Baljeet Singh “Output impacts of the interaction between foreign direct investment and domestic credit: Case study of Pacific Island countries”