The Singapore Convention on Mediation (‘‘Convention’’) aims to promote mediation as an alternative, expedited, cheap and effective dispute resolution method in the settlement of disputes arising within scope of commercial activities operated at global scale.
Prepared by the United Nations Commission On International Trade Law (“UNCITRAL”), its official name is the United Nations Convention on International Settlement Agreements Resulting from Mediation. However, since it was first opened for signature in Singapore, it is referred to as the Singapore Convention on Mediation or the Singapore Convention ("Convention").
Similar to the undeniable success and ability to shape legal flow of international commercial matters in last decades of Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) has achieved, one of the goals of the Singapore Convention is to ensure that settlement agreements concluded following a mediation process are of internationally binding and enforceable nature.
As of 17th April, 2020, 52 State has signed the convention, including Republic of Turkey. However, only three country has ratified the Convention, which are Republic of Fiji, the State of Qatar and the Republic of Singapore. Article 14 of the Convention states that, the Convention will enter into force six months after ratification of three States. The State of Qatar has approved the Convention on 12.03.2020, following Republic of Fiji and Republic of Singapore and therefore the Convention will enter into force on the date of 12
th of September, 2020.
Scope of Application
As per to the Article 1 of the Convention, it applies to the agreements resulting from mediation and concluded in writing by parties to resolve an international commercial dispute (“settlement agreement”).
Article 1 of
the Convention sets out the criteria to determine whether a dispute has an international nature or not. Accordingly, a dispute is to be deemed to be international; if;
a. At least two parties to the settlement agreement have their places of business in different States; or
b. The State in which the parties to the settlement agreement have their places of business is different from either:
i. The State in which a substantial part of the obligations under the settlement agreement is performed; or
ii. The State with which the subject matter of the settlement agreement is most closely connected.
DefinitionsArticle 2(2) of the Convention stipulates that the settlement agreements shall be ‘in writing’ as a form requirement. According to the said article, a settlement agreement is “in writing” if its content is recorded in any form.
The Article also explicitly states that form requirement can be met by a means of electronic communication if the information contained therein is accessible so as to be useable for subsequent reference.
Article 2(3) of the Convention defines the mediation. Accordingly,
“Mediation” means a process, irrespective of the expression used or the basis upon which the process is carried out, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (“the mediator”) lacking the authority to impose a solution upon the parties to the dispute. As it is seen, mediation is defined broadly to include as many settlement agreements as possible under the scope of the Convention.
Requirements for Reliance on Settlement AgreementsAs per to the Article 4 of the Singapore Convention on Mediation, a party relying on a settlement agreement under the Convention have to submit the following documents to the Party State where relief is sought;
(a) The settlement agreement signed by the parties;
(b) Evidence that the settlement agreement resulted from mediation, such as:
(i) The mediator’s signature on the settlement agreement;
(ii) A document signed by the mediator indicating that the mediation was carried out;
(iii) An attestation by the institution that administered the mediation; or
(iv) In the absence of (i), (ii) or (iii), any other evidence acceptable to the competent authority.
The Article also states that in cases where the settlement agreement is not in an official language of the Party to the Convention where relief is sought, the competent authority may request a translation thereof into such language.
Grounds for Refusing to Grant ReliefArticle 5 of the Singapore Convention on Mediation states the grounds in which a competent authority may rely on to refuse to grant relief under the Convention. Accordingly;
1. Application for granting relief may be refused upon request of the party against whom the relief is sought only if that party furnishes to the competent authority proof that:
(a) A party to the settlement agreement was under some incapacity;
(b) The settlement agreement sought to be relied upon:
(i) Is null and void, inoperative or incapable of being performed under the law to which the parties have validly subjected it or, failing any indication thereon, under the law deemed applicable by the competent authority of the Party to the Convention where relief is sought under article 4;
(ii) Is not binding, or is not final, according to its terms; or
(iii) Has been subsequently modified;
(c) The obligations in the settlement agreement:
(i) Have been performed; or
(ii) Are not clear or comprehensible;
(d) Granting relief would be contrary to the terms of the settlement agreement;
(e) There was a serious breach by the mediator of standards applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement; or
(f) There was a failure by the mediator to disclose to the parties circumstances that raise justifiable doubts as to the mediator’s impartiality or independence and such failure to disclose had a material impact or undue influence on a party without which failure that party would not have entered into the settlement agreement.
2. The competent authority of the Party State where relief is sought may also refuse to grant relief if it finds that:
(a) Granting relief would be contrary to the public policy of that Party; or
(b) The subject matter of the dispute is not capable of settlement by mediation under the law of that Party.
Should you have any question or inquiries about Turkish and international alternative dispute resolution practice and climate, please do not hesitate to contact us at
info@guzeloglu.legal.