Content area
Full text
*
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.
On 26 June 2018, the United Nations Commission on International Trade Law [UNCITRAL] approved, largely without modification, the final drafts of a Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention)1 and amendments2 to the Model Law on International Commercial Conciliation (the Model Law).3 These instruments were the product of negotiations that began in 2014, following a proposal made by the US to develop a multilateral convention that would 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.4 This paper provides a critical analysis of the Singapore Convention, and some commentary from an Asian perspective.
I. KEY ELEMENTS OF THE SINGAPORE CONVENTION
Before addressing the substance of the Singapore Convention, the fact that there was a convention instead of a softer instrument is an achievement in itself. In the 65th session of the UNCITRAL Working Group II (the Working Group), many delegations supported preparing model legislative provisions instead of a convention due to concerns about the lack of a harmonized approach to the enforcement of settlement agreements, both in legislation and in practice.5 The Working Group recognized that a binding instrument such as a convention would bring certainty and would contribute to the promotion of mediation in international trade.6 However, it also recognized that the notion of mediation was new in certain jurisdictions and that flexible model legislative provisions would be more feasible. Nevertheless, at its 66th session, the Working Group arrived at a creative compromise proposal on five key issues, including the form of the instrument, which would involve a model law and convention being prepared simultaneously.7
A. Scope of Application
Article 1(1) provides for the Singapore Convention to apply to an “agreement resulting from mediation and concluded in writing by parties to resolve a commercial dispute … which at the time of its conclusion, is international”. The terms “international”, “writing”, and “commercial” are defined terms.
From an early stage, many in the Working...