Singapore Convention: Challenges In Cross Border Mediation

17th December, 2024 - 6:44 am Categories: News & Updates 0 Comments

INTRODUCTION

The Singapore Convention on Mediation also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation passed in December 2018 and effectiveness as of September 12,2020.[1] It is to facilitate the contract incorporation model for the enforcement of the international settlement agreements which stem from the mediation to encourage mediation as being a functional approach for the cross-border disputes.[2] As the world economy continues to become more integrated, efficient cross-border mediation has emerged as a crucial tool enabling the international business community. Unlike litigation and arbitration, it is cheaper, quicker and less aggressive.

However, there are still some issues that affect the extension and application of the measure of the Convention. These are: Differences in national legislation of mediation, ambiguity to the meaning of a mediated agreement, and the low level of awareness among businessmen in regard to the existence of the Convention and their potential gains from it.

PROVISIONS OF THE SINGAPORE CONVENTION

The Singapore Convention on Mediation is limited to cross-border mediation settlement agreements mainly in business related matters. It sets down simple procedure for enforcing these agreements, which means that in the settlement, the agreement has to be in writing and signed by the parties in the dispute and they have to provide proof that the agreement was arrived at through mediation. This approach is quite different from the enforcement mechanisms of arbitration which have been provided by the New York Convention together with a detailed plan on recognizing and enforcing arbitral awards.[3] The Singapore Convention means to facilitate enforcement by enabling mediated agreement to take effect in the signatories states and therefore improve and importance of mediation as a form of entering international conflict resolution.

JURISDICTIONAL COMPLEXITIES

However, the Singapore Convention has several jurisdictional and legal challenges, which enables it. As mentioned before, this framework’s drawback is the inconsistency in national legislation regulating mediation within different signatory countries. Different countries may have different laws and cultures of practicing mediation; therefore implementation of the convention may vary. Additionally, for the mediated agreements the enforcement in the non-signatory states is even more complicated, as such jurisdictions might not accept the rules of the Convention at all.[4] Such inconsistency may cause anxiety for the parties who entered into the agreements and is desirous of enforcing their rights in a foreign country.

Moreover, problem of conflicting jurisdictions can also be observed in those cases in which the question is not only of establishing a jurisdiction of a certain country but also of choosing between several jurisdictions.[5] This can indeed make the enforcement process slightly cumbersome because the various parties involved could be meeting different legal standards and following different procedures. This and other such complexities underline the need for more harmonization of mediation laws around the world so as to avail the full benefits of the Singapore Convention and enable parties to resolve cross border disputes.

CULTURAL AND COMMUNICATION BARRIERS

Negotiation and mediation are also influenced by culture because different cultures want various behaviors from people when dealing with conflicts. For example, in some cultures conflict may be taken personally, hence the ‘fight’ will be avoided, and there will be a bent towards ‘indirect’ communication, while in other cultures, there will be a bent towards ‘truth’. Such approaches can lead to lack of effective communication, or miscommunication in cross border mediation contexts.[6] For instance, a mediator from the direct communication culture may be confused that a party has not been assertive when it really means no; this will alter the mediation. Thus, cultural competency is a necessity of mediators. They should also be knowledgeable about, and sensitive to, the cultures of the players in the bargaining process. This understanding not only promotes confidence in each other but also improves the chances of getting a satisfactory outcome and this is the value of mediation most of the times.

CHALLENGES

Implementation of settlement agreements by mediation under the SGC can meet certain barriers, specifically public policy provisions. This makes the ability of the enforcement of these exceptions’ provisions uncertain depending on the jurisdiction since the different courts of each jurisdiction are likely to have different interpretations of what constitutes a violation of public policy. This lack of uniformity can however pose challenges to parties willing to enforce their agreements Internationally.[7] Also, it is not clear what is meant by the term ‘international commercial disputes’ in the Convention, and some controversies may rise due to uncertainties on whether some of the agreements came under this Convention or not. Such ambiguity may weaken the capability of the Convention as well as the encouragement of the parties to use mediation as a method of solving disputes.[8]

Also, questions about systemic erosion of the Convention surface with the understanding that all the signee countries may not implement similar measures or policies in executing mediated agreements. The differences in domestic legislation as well as the perception towards mediation by Courts of Contracting States may therefore result to some differences in the manner in which the Convention is effectively implemented. This is likely to erode the authority of the Convention in encouraging mediation that it seeks to present as a credible approach to the settlement of international disputes.[9]

MEDIATOR QUALITY

According to Singapore Convention on Mediation, there are no international standard of accreditation or certification of the mediators that can weaken the confidence in the mediation process. It was explained that in the absence of a universal set of CPM standards, the quality of mediation practices differs from one jurisdiction to another, which creates doubts about the identity of the mediator or the overnight integrity of the mediation practice. This variability can discourage parties from entering into mediation because they will be concerned whether their mediator is capable and ethical to resolve the dispute fairly.[10] This is made worse by the fact that there are no set standards regulating comportment of mediators to give vent to this so this creates ambiguity as to the reliability of mediation process and its outcome.

WAY FORWARD

To overcome these issues, there is a need to adopt mediation laws in various regions as harmonized. The legal regulation of mediation would also increase predictability in the process and more parties would choose mediation as a method of dispute solution. Also, increasing the quality of the mediator training as well as Mediator cultural competency can help to increase the level of mediation services provided in the international level.[11] Promoting the Singapore Convention amongst businesses and legal professional is also vital as improved recognition of the Singapore Convention has a positive impact on increasing the efficiency of the use of mediation in international disputes.

CONCLUSION

The Singapore Convention on Mediation is important to improve the enforceability of the mediated settlement agreements involving international dispute resolution whilst raising awareness of mediation preferred to arbitration and litigation. However, for the initiatives to reach their maximum capacity, there is still to be achieved cooperation between the member countries, the enterprises, and the lawyers. When Stakeholders realize these joint objectives, the potential for cross-border mediation becomes fully realized enhancing the efficiency of the global dispute resolution system.

Author: : Sahil Singh, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[1]https://www.singaporeconvention.org/sites/singaporeconvention.org/files/SMU%20SOL%20Singapore%20Convention%20Mediation%20Handbook.pdf

[2]https://www.mlaw.gov.sg/news/press-releases/2020-09-12-singapore-convention-on-mediation-enters-into-force/

[3]https://assets.publishing.service.gov.uk/media/61f91dea8fa8f53890ff387f/singapore-convention-on-mediation.pdf

[4]https://journal.arbitration.ru/analytics/the-singapore-convention-on-mediation-an-overview/

[5]https://www.singaporeconvention.org/sites/singaporeconvention.org/files/SMU%20SOL%20Singapore%20Convention%20Mediation%20Handbook.pdf

[6]https://blog.ipleaders.in/singapore-convention-on-mediation-a-game-changer-in-the-cross-border-dispute-settlement/

[7]https://www.dlapiper.com/es-pr/insights/publications/2020/10/singapore-mediation-convention-and-enforcement-of-settlement

[8]https://www.mlaw.gov.sg/news/press-releases/2020-09-12-singapore-convention-on-mediation-enters-into-force/

[9]https://www.singaporeconvention.org/

[10]https://viamediationcentre.org/readnews/MzA1/Singapore-Convention-on-Mediation-Viability-Challenges

[11]https://www.linklaters.com/en/insights/publications/commercial-mediation-a-global-review/global-guide-commercial-mediation/the-singapore-convention-on-mediation