THE ADOPTION OF SINGAPORE CONVENTION ON MEDIATION – CHALLENGES AND SOLUTIONS
Author: Piyush Gupta, I year of B.A.,LL.B.(Hons.) from National Law Institute University, Bhopal
The Singapore Mediation Convention (Singapore Mediation Convention) was approved by the UN General Assembly on December 20, 2018, and it became open for signature by various States parties on July 7, 2019. As of 18 May 2022 (The latest data available on the internet), There are currently 55 signatories to the Singapore Mediation Convention, including countries like China, the United States of America, and India.[1] Of these 55 signatories, ten countries have ratified the agreement. By establishing uniform guidelines for international commercial dispute resolution, this Convention aims to promote global trade and conflict resolution through mediation. The main aim of the convention is to present mediation as a mechanism to resolve cross-border disputes by bolstering its enforceability of it. However there are multiple challenges in the implementation of convention, some of which are discussed below-
1) Low number of ratifications
A plain reading of the Preamble of the Singapore Mediation Convention makes it clear that it recognises mediation as an essential component of international commercial dispute settlement since it enables the "amicable settlement" of conflicts - “... reducing the instances where a dispute leads to the cessation of a trade relationship, aiding the administration of international transactions by parties to a contract, and generating savings in the administration of justice by States,"[2] However, the lack of legal support for mediation is typically the reason why international parties, States, and other stakeholders do not quickly choose it. So, the parties are not required to agree to the mediation's terms. The General Assembly recognised the importance of having an international legal structure for mediation and addressed the same dilemma when it adopted the Singapore Mediation Convention.[3] So, it is clear to us that the Singapore Mediation Convention was created as a foundation for international law to recognise "international settlement agreements" that come about as a result of international commercial mediation. This creation of an appropriate treaty increases the confidence of foreign investors and the willingness of the host States to use mediation as a dispute resolution method. However, given that the majority of parties (including India) have not yet ratified the Singapore Mediation Convention, it dents the credibility of the convention with respect to enforcement.
It is incumbent on countries with substantial industrial bases to swiftly ratify the Singapore Mediation Convention in order to profit from it. This is necessary for a number of reasons.
First off, prior to the Singapore Mediation Convention, a settlement agreement between the parties might give the mediation procedures legal power. The enforceability of this settlement agreement was the issue, though. As an illustration, parties X and Y reach a settlement pact. The settlement agreement is something that Party X wants to enforce in Party Y's State. Because it is quite likely that the settlement agreement may be in conflict with the laws of the party's state, party X must begin domestic court procedures in party Y's State in order to implement this settlement agreement. This can prove to be time-consuming, resource-intensive, and burdensome. As an alternative, the Court can have a different viewpoint on the settlement agreement if it is seen to be against the State's public policy of party Y. This basically means that, prior to the Singapore Mediation Convention, there existed a substantial conundrum regarding the legality of settlement agreements originating from international mediation, especially given the lack of an international framework.
However, the parties are currently required to enforce a settlement agreement reached through "international commercial" mediation under Article 3 of the Singapore Mediation Convention. [4]Given that local laws and international norms are in harmony in this case, the likelihood that settlement agreements will be upheld is noticeably higher. The increased and strengthened likelihood that the settlement agreement will be upheld is also demonstrated by Article 5, which stipulates specific grounds on which a court may refuse to uphold a settlement agreement. The main goal of these grounds is to reduce any obstacles that may develop during enforcement actions. As a result, it is less expensive and requires fewer resources to enforce settlement agreements, which encourages parties to use mediation as a conflict resolution method. Additionally, international commercial mediation gains significantly more credibility.
2) Undefined Terms
The second problem that emerges from the Singapore Convention on Mediation is related to the usage of undefined terms in it. For example, Article 5(1)(e) of the convention mentions the standards to be adhered to by the mediator, but the entire convention is silent on the definition of the term "standards”[5]. Similarly, the convention does not provide a clear difference between conciliation and mediation. Likewise, the term “commercial disputes”, and “opt-out mechanism” under Article 5(1)(d) and many other terms are left undefined.[6] As mediation is gathering its credentials on a global stage, it is imperative that these terms which are not defined should be defined appropriately. This will help the convention to gain much-needed credibility on one hand while also providing impetus to countries to sign and ratify the convention.
Conclusion
The potential benefits of the Singapore Convention on Mediation clearly outweigh its few drawbacks, however considering the fact that it has to still gain the approval of various countries, no drawback should be left unresolved that may become an impediment in the implementation of the convention. The benefits of the convention should be conveyed to parties in clear and lucid terms after removing fee chinks in the convention and parties should be encourage to sign and ratify it. The terms that are left undefined or are ambiguously defined should be define in simple and clear manner. The adoption of Singapore Convention on Mediation is a milestone in the sphere of mediation in international arena and hence no stone should be left unturned to benefit it from fully.
[1]<,https://www.singaporeconvention.org> accessed on 16 October 2022 [2]G.A. Res. A/73/198, Preamble, United Nations Convention on International Settlement Agreements Resulting from Mediation [3]G.A. Res. A/73/198, United Nations Convention on International Settlement Agreements Resulting from Mediation [4] G.A. Res. A/73/198, Art. 3, United Nations Convention on International Settlement Agreements Resulting from Mediation [5]Code of Professional Conduct, International Mediation Institute, https://imimediation.org/practitioners/code-professional-conduct/ accessed on 16 October 2022 [6]Alison G. FitzGerald, The Singapore Mediation Convention, Norton Rose Fulbright (September 2019), https://www.nortonrosefulbright.com/en-in/knowledge/publications/b5906716/the-singapore-mediation-convention> accessed on 16 October 2022