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The Singapore Mediation Convention: A game changer in cross border disputes? By Dr Gaston Kenfack*

18 May 2021 9:51 AM | Anonymous

Presented at the AfAA 2nd Annual International Arbitration Conference, 15th - 16th April 2021. 

Question from Moderator to Gaston: Much has been said about the Singapore Convention and its future, but a historical analysis is often most instructive in contextualising its purpose. Gaston, I believe that you were a delegate at the negotiation of the Convention. Perhaps you can share some impressions and insights from that process, particularly with regard to the motivation behind the Convention.

Response: The negotiation of this Convention resulted in the updating of the 2002 UNCITRAL Model Law on International Commercial Mediation; therefore, the 2002 version was replaced by the 2018 version.

During the negotiation, it was agreed that States wishing to legislate on mediation have the possibility of adopting either the Singapore Convention itself or drawing inspiration from the 2018 UNCITRAL Model Law on International Commercial Mediation.

It is useful to underline here that Cameroon is an OHADA contracting State and that the OHADA Uniform Act on Mediation adopted in 2017 is inspired by the 2002 UNCITRAL Model Law on International Commercial Mediation.

Even though this OHADA Uniform Act on Mediation aims is to promote mediation in the OHADA contracting parties, it contains a provision according to which amicable agreements concluded by the parties without the assistance of a third (mediator or conciliator) are included in the scope of that Uniform Act.

As a member of the Cameroonian delegation, I must say that the Cameroonian delegation had, during the negotiation of the Singapore Convention, suggested that agreements reached by the parties in dispute without the intervention of a mediator or conciliator should be included in the scope of the Singapore Convention.

The Cameroonian proposal was thus inspired by the aforementioned OHADA Uniform Act on Mediation.

This proposal, supported by other delegations, even not parties to the OHADA Treaty, was not accepted, on the ground that the purpose of the Convention is to promote mediation for the settlement of trade disputes.

However, the concern being to promote not only mediation but also, more generally, the amicable settlement of disputes, it was agreed that the possibility to recognize and grant “exequatur” to amicable agreements reached by the parties themselves without the intervention of a third could be taken into account by those of the States who wish to do so.

For this reason, the 2018 version of the UNCITRAL Model Law on International Commercial Mediation, which amends the 2002 UNCITRAL International Trade Conciliation Model Law, includes a footnote 5 under Section 3, according to which "a State may consider enacting this section to apply to agreements settling a dispute, irrespective of whether they resulted from mediation. Adjustments would then have to be made to relevant articles."

Question from Moderator to Gaston: Are there areas which proved particularly difficult to reach consensus, and how were those addressed?

Response: Concerning areas which provided difficulties to reach consensus, I will focus on article 5 of the Convention that specifies the grounds for refusing exequatur.

This article 5 is one of the longest and more detailed provisions of the Convention.

Indeed, the grounds for refusal are so many because the Delegations of the States negotiating the Convention wanted to be sure that the said Convention is consistent with their public policy and that a Convention in harmony with the public policy of the Contracting States will really help in promoting worldwide mediation as an appropriate instrument or tool for the settlement of commercial dispute.

So, the negotiation of this article 5 and also article 4 was, to my humble opinion, laborious not because there was any intention to block the negotiations but rather because each Delegation participating in these negotiations was keen to come out with an instrument agreeable and acceptable to all.

In this regard, the negotiations took place in a courteous manner and in a spirit of mutual understanding.

Question from Moderator to Panel: In view of the key provisions and purposes of the Convention, does the panel think that the legal profession and disputing parties can derive benefit from the Convention?

Response from Gaston: In any event, mediation appears to be an advantageous means of resolving commercial and/or investment disputes, thanks to its flexibility. 

Furthermore, while mediation or conciliation is a paid service, it still costs less than State justice or arbitration.

Therefore, it seems to me important that lawyers are educated on mediation/conciliation and on its advantages as a method to settle commercial and investment disputes.

This education should begin at the university level.

In my opinion, aiming to promote mediation as an alternative means of dispute resolution, the Singapore Convention of 2019 is intended to be for mediation what the 1958 New York Convention is for arbitration.

It appears that education is really important here; I mean education for lawyers because they have to know what mediation or conciliation is about, in order to be in a position to convince their clients on the advantages and utility of these methods of settlement of commercial and investment disputes.

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* Chairman, Association for thé Promotion of Arbitration in Africa-APAA



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