Presented at the AfAA 2nd Annual International Arbitration Conference, 15th - 16th April 2021
The two issues I was asked to discuss were:
1) The provisions at the heart of the Singapore Convention.
2) The key controversies in the text of the Singapore Convention, both now and in the future.
In response to the first issue, I considered the provisions at the heart of the Convention to be:
a) Article 1 which provides that the Convention applies to international settlement agreements resulting from mediation, concluded in writing by parties to resolve a commercial dispute.
b) Article 1 also lists exclusions from the scope of the Convention namely, settlement agreements completed by a consumer for personal, family or household purposes, or relating to family inheritance or employment law.
c) A settlement agreement that is enforceable as an arbitral award is also excluded from the scope of the Convention in order to avoid a possible overlap with the existing and future Conventions such as the New-York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), the Convention on Choice of Court Agreements and the Convention on the Recognition and Enforcement of Foreign judgment in Civil and Commercial Matters (2019).
d) Article 3 addresses the key obligations of the parties to the Convention with respect to both enforcement of settlement agreements and the right of disputing parties to invoke a settlement agreement covered by the Convention. Each party to the Convention may determine the procedural mechanisms that may be followed where the Convention does not prescribe any requirement.
e) Article 4 covers the formalities for relying on a settlement agreement, namely the disputing party shall supply to the competent authority the settlement agreement signed by them and evidence that the settlement agreement results from mediation. The competent authority may require any necessary document in order to verify that the requirements of the Convention are complied with.
f) The grounds upon which a court might refuse to grant a request of the disputing party against which it is invoked, are defined in Article 5. The grounds are grouped in 3 main categories, those in relation to the disputing parties, the settlement agreement and the mediation procedure.
Article 5 includes two additional grounds upon which a court may, on its own motion, refuse to grant relief. These grounds relate to public policy and the fact that the subject matter of the dispute cannot be settled by mediation.
g) Article 8 is on reservations, the first one permits a party to the Convention to exclude from the Convention settlement agreements to which a party or to which any governmental agency is a party, to the extent specified in the declaration.
h) A second reservation permits a party to the Convention to declare that it will apply the Convention only to the extent that the disputing parties have agreed to its application.
i) The Convention is consistent with the UNCITRAL MODEL LAW on International Settlement Agreement Resulting from Mediation (2018). This approach is intended to provide States with the flexibility to adopt either the Convention, the Model Law as a standalone text or both the Convention and the Model Law as complimentary instruments of a comprehensive legal framework on mediation.
As for the key controversies at the heart of the Singapore Convention now and in the future, I identified the following:
1) The Singapore Convention does not take any stand on the source of mediation, for example, the parties may have resorted voluntarily to mediation instead of commencing litigation, or an attempt at mediation may have been mandatory by a legal rule or by a court. This issue has been debated in the European Union where some member States believe that the only way to resort to mediation is to make it mandatory. This is not captured anywhere in the Convention. It is worth noting that as at now, neither the European Union nor the United Kingdom has signed the Singapore Convention. They say that they are considering whether to sign as a regional economic entity/block, or whether member States need to join individually. I find this to be problematic now and in the future.
2)How to secure the mediator’s confirmation is also bound to be problematic in future.
For example, Article 4 of the Convention sets out the evidence to be provided to the enforcing court. This includes a copy (translated if necessary), of the settlement agreement. It also includes the requirement that the settlement agreement,” resulted from mediation.” The examples given as to what could constitute such evidence include:
a) “a mediator’s signature on the settlement agreement or a document signed by the mediator indicating that the mediation was carried out.”
If the mediation was organized through an institution, the evidence may take the form of an attestation by that institution.
b) In the absence of such forms of evidence, any other evidence acceptable to the (enforcing court) may be acceptable.
c) Whilst this evidentiary requirement is understandable given the scope of the Convention, the need for the mediator to make some form of attestation to be put before the court as proof stated is potentially problematic. This is so because in most jurisdictions where mediation is well trenched, the fundamental principle of mediation is underpinned by a well- accepted principle that the parties may not call a mediator to give evidence in relation to a mediation because of confidentiality. This principle is usually recorded in a mediation agreement between the mediator and the parties, and in some jurisdictions including England and Wales, it is also enshrined in the statutes or court rules. Concerns are currently being raised that this new evidentiary requirement introduced by the Convention could erode the protection currently enjoyed by mediators. It is therefore advisable for the practitioners to raise this issue with mediators during the mediation preparatory meetings. It is also important to raise it in the mediation agreement to the effect that the mediator will not be required to give evidence. It is not clear how the enforcing courts will handle this issue.
3) I note that the definition of mediation in Article 2(3) of the Singapore Convention makes no reference to the impartiality of the mediator. Despite this, however, amongst the grounds to refuse enforcement of a settlement agreement, at least two relate to possible flaws in the mediation proceeding and its development, as well as the mediator’s behaviour. This might be problematic as time goes.
*Lady Justice Joyce Aluoch, EBS, CBS, (Rtd) Judge, Certified International Mediator, Chartered Mediator, Accredited Mediator