LSJ October 2019

Legal updates MEDIATION

New Singapore Convention set to bring greater certainty to international mediation

Anthony Lo Surdo SC is a barrister, advanced mediator and independent arbitrator at 12 Wentworth Selborne Chambers.

O n 26 June 2018, the Unit- ed Nations Convention on International Trade Law (‘ UNCITRAL ’) approved the final draft of the United Nation’s Convention on International Settlement Agreements resulting from Mediation , also known as the Singapore Convention (‘ Singapore Convention ’). The intent of the Singapore Convention is to bring certainty to the international framework on mediation and facilitate the promotion of mediation as an alter- native and effective method of resolving international trade disputes. It proposes to do so by enabling parties to the set- tlement of an international dispute by mediation the ability to enforce the set-

of Congo, Eswatini, Fiji, Georgia, Gre- nada, Haiti, Honduras, India, Iran, Is- rael, Jamaica, Jordan, Kazakhstan, Laos, Malaysia, Maldives, Mauritius, Mon- tenegro, Nigeria, North Macedonia, Palau, Paraguay, Philippines, Qatar, Republic of Korea, Samoa, Saudi Ara- bia, Serbia, Sierra Leone, Singapore, Sri Lanka, Timor-Leste, Turkey, Uganda, Ukraine, USA, Uruguay and Venezuela. Australia is not presently a signatory to the Singapore Convention and it is unclear whether it will become one and, if so, when. Key elements of the Convention The preamble The preamble to the Singapore Conven-

• The new Singapore Convention , signed in August this year, is a response to the growing use of mediation both domestically and internationally for the resolution of disputes. • It enables parties to the settlement of an international dispute by mediation the ability to enforce the settlement. • Australia is not yet a party to the Singapore Convention but there is a strong and viable case for it to be a signatory.

tlement in the same manner that international arbitral awards can be recognised and enforced under the United Nation’s Con- vention on the Recognition and Enforcement of Foreign Arbitral Awards (‘ New York Convention ’). Under the New York Convention , international arbitral awards, including consent awards, are recognised and enforceable in any of the 157 member States which are presently signatories to that convention in the same manner as any judgment of the domestic courts of those member States. Overview The Singapore Convention is a response to the growing use of mediation both domestically and internationally for the res- olution of disputes. A survey by the International Mediation Institute in 2014 disclosed that 93 per cent of respondents would be more likely to mediate a dispute with a party from another country if that country had ratified a convention on the enforcement of mediated settlement agreements (Interna- tional Mediation Institute, 'IMI survey results overview: How Users View the Proposal for a UN Convention on the Enforce- ment of Mediated Settlements' (16 January 2017)). The Singapore Convention was signed in Singapore on 7 August 2019 by 46 countries: Afghanistan, Belarus, Benin, Brunei, Chile, China, Colombia, Congo, Democratic Republic

tion commences with a recognition of the value for interna- tional trade of mediation as a method for settling commercial disputes, noting that mediation is increasingly used in inter- national and domestic commercial practice as an alternative to litigation. It proceeds to consider that the use of mediation results in sig- nificant benefits, such as reducing the instances where dispute leads to the termination of commercial relationships, facilitating the administration of international transactions by commercial parties and producing savings in the administration of justice. It concludes with a statement that the establishment of a framework for international settlement agreements resulting from mediation that is acceptable to States with different legal, social and economic systems would contribute to the develop- ment of harmonious international economic relations. Article 1. Scope of application Article 1 sets out the types of mediation to which the Singapore Convention applies. Relevantly, it is limited to commercial disputes which are international in character. A dispute is international if at least two parties to the settlement agreement have their places of business in different States, or the State in which the parties to the settlement agreement have their place of business is different from either the State in which a sub-

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