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The Singapore Convention on Mediation—A Brighter Future for Asian Dispute Resolution

  • Eunice CHUA (a1)

Abstract

On 26 June 2018, the United Nations Commission on International Trade Law [UNCITRAL] approved, largely without modification, the final drafts of the Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) and amendments to the Model Law on International Commercial Mediation prepared by Working Group II. These instruments aim to promote the enforceability of international commercial settlement agreements reached through mediation in the same way that the New York Convention facilitates the recognition and enforcement of international arbitration awards. This paper provides a critical analysis of the Singapore Convention, and some commentary from an Asian perspective.

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Copyright

Footnotes

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Advocate and Solicitor (Singapore). Assistant Professor, School of Law, Singapore Management University. I wish to thank my family for their wonderful support that enabled me to work on this piece.

Footnotes

References

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1. United Nations, Report of UNCITRAL, Fifty-first session (25 June-13 July 2018), UNCITRAL, UN Doc. A/73/17 (2018), Annex I.

2. Ibid., at Annex II.

3. UNCITRAL Model Law on International Commercial Conciliation with Guide to Enactment and Use 2002, para. 55. In this paper, “conciliation” and “mediation” are used interchangeably to refer to a process where parties request a third person to assist them in their attempt to reach an amicable settlement of their dispute.

4. Planned and Possible Future Work—Part III, Proposal by the Government of the United States of America: Future Work for Working Group II, Note by the Secretariat, UNCITRAL, UN Doc. A/CN.9/822 (2014).

5. Report of Working Group II (Dispute Settlement) on the Work of its Sixty-fifth Session, UNCITRAL, UN Doc. A/CN.9/896 (2016), at para. 139. See also SUSSMAN, Edna, “A Path Forward: A Convention for the Enforcement of Mediated Settlement Agreements” (2015) 6 Transnational Dispute Management 1 at 5–6, describing the various ways by which mediated settlement agreements can be enforced.

6. LO, Chang-Fa, “Desirability of a New International Legal Framework for Cross-Border Enforcement of Certain Mediated Settlement Agreements” (2014) 7 Contemporary Asia Arbitration Journal 119 at 135–6.

7. Report of Working Group II (Dispute Settlement) on the Work of its Sixty-sixth Session, UNCITRAL, UN Doc. A/CN.9/901 (2017), para. 52.

8. Report of Working Group II (Arbitration and Conciliation) on the Work of its Sixty-fourth Session, UNCITRAL, UN Doc. A/CN.9/867 (2016), para. 94.

9. Supra note 6 at 131.

10. Ibid.

11. Convention of 30 June 2005 on Choice of Court Agreements, The Hague, 30 June 2005, online: HCCH <https://www.hcch.net/en/instruments/conventions/full-text/?cid=98>.

12. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 1958, online: <http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf>.

13. The Hague Judgments Project could also potentially lead to the development of another instrument to enforce settlement agreements that have been recorded as court orders or judgments.

14. Supra note 8 at para. 131.

15. Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on Certain Aspects of Mediation in Civil and Commercial Matters, 2008, Official Journal of the European Union (L 136).

16. Giuseppe de PALO et al., “Rebooting” the Mediation Directive: Assessing the Limited Impact of its Implementation and Proposing Measures to Increase the Number of Mediations in the EU (2014, European Parliament Publications Office) PE 493.042.

17. Eunice CHUA, “The Future of International Mediated Settlement Agreements: Of Conventions, Challenges and Choices” (2015) Tan Pan Online: A Chinese-English Journal on Negotiation 1–11. Research Collection School of Law.

18. KOO, Anna K.C., “Enforcing International Mediated Settlement Agreements” in Muruga Perumal RAMASWAMY and João RIBEIRO, eds., Harmonising Trade Law to Enable Private Sector Regional Development (UNCITRAL Regional Centre for Asia and the Pacific, 2017), 9192.

19. Supra note 6 at 131.

20. Supra note 7 at para. 37.

21. Supra note 8 at para. 181.

22. Supra note 7 at para. 40.

23. Supra note 8 at para. 181.

24. Supra note 7 at para. 36.

25. Supra note 6 at 132.

26. Ibid., at 133.

27. Report of Working Group II (Arbitration and Conciliation) on the Work of its Sixty-third Session, UNCITRAL, UN Doc. A/CN.9/861 (2015), at para. 93.

28. Similar defences have been proposed in supra note 6 at 133–4; LO, Chang-Fa and MA, Winnie Jo-Mei, “Draft ‘Convention on Cross-Border Enforcement of International Mediated Settlement Agreements’” (2014) 7 Contemporary Asia Arbitration Journal 387, 397–8.

29. UNCITRAL, UNCITRAL Working Group II, 65th Session, Settlement of Commercial DisputesInternational Commercial Conciliation: Preparation of an Instrument on Enforcement of International Commercial Settlement Agreements Resulting from Conciliation, Note by the Secretariat, UNCITRAL, UN Doc. A/CN.9/WG.II/WP.198 (2016), at para. 35.

30. UNCITRAL, supra note 5 at para. 192.

31. Ibid., at para. 106.

32. Ibid., at para. 192; supra note 7 at para. 50.

33. Supra note 7 at para. 50.

34. UNCITRAL, supra note 5 at para. 193.

35. Ibid.

36. UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of its Sixty-seventh Session, UNCITRAL, UN Doc. A/CN.9/929 (2017), at paras. 96–8.

37. Supra note 27 at para. 46.

38. UNCITRAL, Report of Working Group II (Dispute Settlement) on the Work of its Sixty-eighth Session, UNCITRAL, UN Doc. A/CN.9/934 (2015), at paras. 75–7.

39. See generally, LEE, Joel and Hwee, TEH Hwee, eds., An Asian Perspective on Mediation (Singapore: Academy Publishing, 2009).

40. International Institute for Conflict Prevention and Resolution, “Attitudes Toward ADR In the Asia-Pacific Region: A CPR Survey” (2011), online: CPRADR <https://www.cpradr.org/programs/international-initiatives/asia/asia/_res/id=Attachments/index=0/asia-pacific-survey.pdf>.

41. “China Launches International Commercial Expert Committee” Xinhua (26 August 2018), online: Xinhua <http://www.xinhuanet.com/english/2018-08/26/c_137420632.htm>.

42. See LIM, George SC and CHUA, Eunice, “Development of Mediation in Singapore” in George LIM, SC and Danny MCFADDEN, eds., Mediation in Singapore: A Practical Guide, 2nd ed. (Singapore: Sweet and Maxwell, 2017), 21.

43. Yin, KIM Shi, “From ‘Face-Saving’ to ‘Cost Saving’: Encouraging and Promoting Business Mediation in Asia” (2014) 32 Alternatives to the High Cost of Litigation 158, at 158.

44. Singapore Academy of Law, “Study on Governing Law and Jurisdiction Choices in Cross-Border Transactions” (2016), online: CIArb <http://www.ciarb.org.sg/singapore-academy-of-law-study-on-governing-law-jurisdiction-choices-in-cross-border-transaction/>.

45. CHONG, Adeline, ed., Recognition and Enforcement of Foreign Judgments in Asia (Singapore: Asian Business Law Institute, 2017) 34.

46. WOLSKI, Bobette, “Arb-Med-Arb (and MSAs): A Whole Which Is Less Than, Not Greater Than, the Sum of its Parts?” (2013) 6 Contemporary Asia Arbitration Journal 249; CHUA, Eunice, “A Contribution to the Conversation on Mixing the Modes of Mediation and Arbitration: Of Definitional Consistency and Process Structure” (2018) 15 Transnational Dispute Management Journal, online: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3235429>.

47. BOULLE, Laurence, “International Enforceability of Mediated Settlement Agreements: Developing the Conceptual Framework” (2014) 7 Contemporary Asia Arbitration Journal 35 at 59.

* Advocate and Solicitor (Singapore). Assistant Professor, School of Law, Singapore Management University. I wish to thank my family for their wonderful support that enabled me to work on this piece.

The Singapore Convention on Mediation—A Brighter Future for Asian Dispute Resolution

  • Eunice CHUA (a1)

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