-Anuj Bhave National Law University, Delhi
-Lavanya Shetty NMIMS, Navi Mumbai
Edited by :
Ajal Verma National Law University, Bhopal
The Singapore Mediation Convention, formerly known as the United Nations Convention on International Settlement Agreements resulting from Mediation was adopted on 20 December 2018. The Convention is set to come into force on 12 September 2020. This Convention is a landmark for the fact that for the first time an instrument establishes a framework for the enforcement of international settlement agreements resulting from mediation. This convention paved the way for an increase in the enforceability of the liability and agreements laid by Mediation sessions, thus increasing the credibility of these sessions. Such a framework that is acceptable to different States with varying legal, economic, and social systems would inevitably contribute to developing harmonious economic relations between the States.
Application of the Convention:
Article 1 of the Convention elaborates on the application of the Convention. Accordingly, it mentions that this Convention will apply to an agreement directly resulting from a mediation which has been formally concluded by the parties ‘in writing’ to resolve a ‘commercial dispute.’ The agreement should be ‘international’ in the sense that the place of business of at least two parties must be indifferent States or the State in which the parties have their place of business must be different from a substantial part of the agreement was performed or the subject matter was most closely related.
Paragraph 2 and 3 of the Article further mentions certain settlement agreement where the Convention does not apply:
Settlement agreements concluded to resolve the dispute for personal purposes which include family, inheritance, or employment.
Settlement agreements recorded and enforceable as arbitral awards.
Settlement agreements concluded in a court proceeding or even approved by a court.
Settlement agreements that are enforceable as a judgment in a court of that State.
The logic behind excluding these settlement agreements is to avoid an overlap with other instruments that already deal with these kinds of settlements like the New York Convention. Therefore, the Singapore Convention only focuses on settlement agreements not governed by any already existing instruments.
Key provisions of the Convention :
Article 3. General principles- This article states that the parties to the agreement will follow the rules and procedures laid down by the Convention. In a situation that a dispute arises regarding a matter that a party claims to have settled already through an agreement, a Party to the Convention shall allow the party to invoke the agreement of settlement following the procedure laid down by this specific Convention, allowing that party to prove that the matter has been resolved earlier.
Article 4. Requirements for reliance on settlement agreements- This article covers the conditions required for a party seeking relief depending on the settlement agreement through this convention, namely the signs of the parties and the mediator and other conditions. The article also provides the requirements for a settlement agreement where the mediator is met concerning electronic communication.
Article 5. Grounds for refusing to grant relief- This article states conditions about when relief guaranteed under Article 4 can be refused, at the request of the party against whom the relief is sought. This can be done by proving to the competent authority, either that the party to the agreement is incapable or the settlement in question is void by law/ has been consequently modified/the object of the agreement has been performed or is unclear about the conditions of performance/providing relief would be against the agreement.
Relief can also be denied under Article 4 if, granting relief would be contrary to the public policy of that Party; or the subject matter of the dispute in question is beyond the boundaries of Mediation by law.
Article 7. Other laws or treaties: This article states that the convention won’t interfere with any rights or interests provided by any other law or treaty in the manner and to the extent allowed by the law or the treaties of the Party to the Convention
Article 8. Reservations- The parties to the agreement can declare certain governmental agencies or any person acting on behalf of a governmental agency is a party, which may not fall under this convention to a certain specific extent as mentioned in the declaration. The convention applies to only those parties that have agreed to a settlement under this convention. No other reservations are allowed other than the ones mentioned in this article. Reservations may be made by a Party to the Convention at any time, it should just be deposited with signatures of the parties to the depository. Any withdrawal of such a declaration can also be made at any time effective from 6 months from the date of depositing the same.
Article 9. Effect on settlement agreements- Any convention, declaration, or withdrawal is applied on the parties to the settlement agreement from the date the convention, declaration, or withdrawal is entered into.
Limitation in enforcement:
The major objective of the Convention is the enforcement of settlement agreements resulting from mediation. There are two major limitations in the Convention which can reduce the impact of enforcement mechanism:
The effectiveness of any international treaty is largely dependent on the number of countries adopting and ratifying it. The Singapore Convention is fairly new in the field with a handful of countries ratifying it so far. The major obstacle faced by the Convention is that many countries do not have any domestic legal system in place which deals with mediation comprehensively. It then becomes a herculean task to expect countries to ratify a Convention with major ramifications when their legal systems do not even recognize mediation as an alternative dispute resolution process.
Even countries like Iran which are a signatory to the Convention have not recognized mediation in their domestic system. The competent authority will in such jurisdictions face difficulty in enforcing settlements according to the Convention. Since there is no appropriate platform, the only way one can enforce settlement agreements is by treating them as a normal civil contract and applying the legal remedy of that jurisdiction. This goes against the direct enforcement of settlement agreements envisioned by the Convention.
2. The other major limitation is concerning a specific article which talks about grounds for refusing to grant relief. Article 5 (1)(e) lays that on a serious breach by the mediator of ‘standards applicable to the mediator’ and that breach affected the party, the competent authority can deny granting relief. The problem here is that even if there was some domestic legal system in place, it would be difficult to ascertain when a serious breach of the standard has occurred. The provision is too general and with no set definition of these ‘standards’ much would be left on the subjectivity of the competent authority. Article 5 (1)(f) suffers from the same drawback as it would be difficult to ascertain the impartiality or independence of the mediator.
Regardless of these limitations, there is potential in the Singapore Convention to build upon the international dispute resolution process set up by the New York Convention. With a shift in perspective in the international community from calling ‘ADR’ as alternate dispute resolution to appropriate dispute resolution, this is another instrument working towards that perspective. Much will, of course, depend on the number of states ratifying the Convention but there has been a bright start to that end.
  Hasan Faraj Mehrabi, Hosna Sheikhattar, The Singapore Mediation Convention: a promising start, an uncertain future, < https://leidenlawblog.nl/articles/the-singapore-mediation-convention-a-promising-start-an-uncertain-future#:~:text=That%20being%20said%2C%20there%20is,addressed%20in%20commercial%20dispute%20resolution. > last accessed 11 August, 2018