ARTICLE 1: SCOPE OF APPLICATION
3. This Convention does not apply to:
(a) Settlement agreements:
(i) That have been approved by a court or concluded in the course of proceedings before a court; and
(ii) That are enforceable as a judgment in the State of that court;
(b) Settlement agreements that have been recorded and are enforceable as an arbitral award.
Find the introduction and context of this blog series on the Singapore Convention here.
Click here for the complete annotation in Portuguese (Anuário – Ano 3).
Fabiana Maranhão Ribeiro
Article 1(3) of the Singapore Convention determines the scope of the Convention negatively, presenting the cases that fall outside its scope.
Initially, it should be noted that the exceptions provided demonstrate the clear intention of the Convention to avoid clashing with the legislation of other countries regarding the execution of mediation agreements ratified in court or concluded during a judicial process and enforceable before local courts. Nor will it apply to mediation agreements inserted in arbitral awards and which may be enforceable under the same terms as that award.
Article 1(3) sought to ensure that there would be no overlap with other regimes applicable to mediation agreements. During the work on drafting the Convention, some delegations wanted to avoid duplication with other regimes, such as the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague Judgments Convention), while others wanted the parties to be offered various ways of complying with the agreement, in a broad scope of the future instrument, the text also applying to judicial and arbitration agreements. In favour was the thesis of the future usefulness of the convention, as well as the argument that the parties could benefit from one more option among the various international instruments to enforce the agreement.
Clearly the latter were less concerned with the overlapping and/or conflicting normative instruments and more concerned with avoiding possible legislative gaps. It was argued that the narrower application was a safer option because court settlements were already covered by other international instruments such as the Hague Convention on Choice of Court Agreements or would be covered by the Hague Judgments Convention and arbitration agreements were already covered by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention.
The Hague Convention on Choice of Court Agreements is applied to agreements in proceedings of an international nature, whether in civil or commercial matters. In Article 2, paragraph 4, this Convention expressly clarifies that it shall not apply to agreements reached by arbitration or related means. The Hague Judgements Convention is not yet in force, but it will focus on the definition of the international jurisdiction of the courts and the recognition and enforcement of foreign judgements, within the scope of cross-border civil and commercial proceedings.
The New York Convention, on the other hand, applies to the recognition and enforcement of foreign arbitral awards and the referral of a case by a court to arbitration.
Therefore, the commission’s choice was to restrict the scope of application, excluding court and arbitration agreements enforceable as judgements of a state court, in order to avoid conflicting legal instruments and provisions on the same subject in other legislation.
It should be remembered that the Convention defined “agreements” in Article 2(2) as follows: an agreement is considered to be “in writing” when its content is documented in some way. The requirement of the written form of the agreement is met by an electronic communication when the information contained therein is accessible for subsequent consultation.
Thus, Article 1(3) has been drafted in harmony with existing conventions, without the possibility of choosing in due course which convention to apply and avoiding any situation of abuse of rights by the parties.
Thus, we have that Article 1(3)(a) is divided into two parts: the Convention shall not apply to agreements which have been approved by a court or, alternatively, which have been concluded in the course of judicial proceedings and are enforceable as a judgment in the state of that court, even if the parties have concluded a commercial dispute. Note that, according to the wording and interpretation of Article 1, paragraph 1, under the Convention, the agreement is nothing more than a form of contract or very similar to it, given that it is “resulting from mediation and concluded in writing by parties to resolve a commercial dispute”.
In this context, it is noted that the exclusion in Article 1(3) is extended to a number of situations in which agreements are enforceable as a substantive or precautionary measure. For the purpose of the exclusion in paragraph (a), the relevant jurisdiction for the enforcement of the agreements entered into will be that of the State of origin, i.e. the State whose court has homologated or concluded it in the course of judicial proceedings, provided that it is, as already said, enforceable. Thus, the Singapore Convention will only be applicable if the two requirements of Article 1(3)(a) are not present.
With regard to point (i), which provides for the situation in which local courts homologate mediation agreements, an example might be where a case has been referred by the court to external mediation and then has not been homologated by the court. In this case, if such an agreement is not covered by any other exception than those provided for, the Singapore Convention will apply.
The situation would be different, however, if court settlements, for example, were covered by the text of the Convention. In this context, if the party did not have its agreement fulfilled spontaneously, the competent authority would have to ascertain whether or not the agreement fell within the scope of the Convention, as well as whether or not it was obtained before a foreign court. The judicial authority would also have to verify whether, under that procedural legal system, the agreement in question had the force of a judgment.
For the mediation agreement to be excluded from the scope of application of the Singapore Convention, it is still necessary that the additional requirement of sub-paragraph (ii) is present, which informs that the mediation agreement must be enforceable as a judgment or judicial decision in the state of the local court issuing the judicial decision . Such situation could be exemplified from the French legal system, which foresees the possibility of the parties of requesting a judicial decision regarding the mediation agreements, formalized by means of a “transaction”, as defined in article 2044 of the French Civil Code, making them immediately executable. Another example would be that of England, in which the litigant parties who reached a mediation agreement may postulate a Tomlin Order, that is, a judicial measure that allows enforceability as a judgment or judicial decision.
It is also useful to consider the notion of a judgment or judicial decision from an autonomous perspective, since in the study of private international law, the autonomous method of interpreting conceptual elements found in an international instrument, such as a Convention, is applied to derive the meaning of a term as far as possible from the instrument itself, regardless of other external considerations. The implicit assumption is that the instrument, which is the subject of interpretation, subsists as a comprehensive set of rules.
Inevitably, it is also necessary to evaluate the legal context of each State and the enforceability (or the requirements for it) of the different mediation agreements signed within its framework.
Continuing the analysis of the article, it is noted that, in order to avoid conflict or overlap with the New York Convention, the mediation agreement obtained in an arbitral tribunal with an enforceable nature was also excluded, as provided for in Article 1, paragraph 3 b). This occurred after many discussions among the working groups, since there was an understanding that it would be up to the competent authority to decide on the application of the Convention to the concrete situation. In practice, this authority would assess whether the agreement reached in arbitration fell within Article 1(1) of that Convention, as well as whether or not it was enforceable in that State.
According to Norel Rosner, the working group understood that the best way to avoid overlapping the Singapore Convention with the New York Convention was to exclude agreements obtained by consent in arbitration, provided they are enforceable. However, unlike judicial agreements, the text does not specify where the arbitration agreement should be enforceable.
Thus, as well summarized by Eunice Chua, the reason for the limitations in the legal provision in question is, in short, the existence of other international instruments that already protect a range of different types of agreements, being certain that the mere involvement of a judge or arbitrator would not exclude the agreement from the scope of the Singapore Convention.
In short, agreements which have been approved by a court or obtained in the course of legal proceedings and which may be enforced as a judgment or court decision in the State where the court is located, as well as those which have been included in an arbitration award and which may be enforced under the same terms as that award, are excluded as a result of Article 1(3) of the Singapore Convention.
 Harold Abramson, The New Singapore Mediation Convention: The Process and Key Choices, Touro College Jacob D. Fuchsberg Law Center, December 2019, p. 13.
 Conférence de la Haye de Droit International Privé, Overview of the Judgement Projects, available at https://www.hcch.net/pt/instruments/conventions/specialised-sections/judgments.
 “Article 1. Scope of Application.” Nadja Alexander and Shouyu Chong (eds), The Singapore Convention on Mediation: A Commentary, Global Trends in Dispute Resolution, volume 8, Kluwer Law International; Kluwer Law International, 2019, pp. 21-43, highlights that the Convention could also apply in a court judgment that has lost enforceability, as in the case where the limitation period for enforcement has passed.
 On the subject, Eduardo Correia Baptista, Direito Internacional Público – Conceito e fontes, vol. I, Lisbon, Lex, 1998, pp. 253 and following; Luís Barbosa Rodrigues, A Interpretação de Tratados Internacionais, 2nd ed., Lisbon, AAFDL, pp. 76 and following, pp. 152 and following; Jorge Miranda, Curso de Direito Internacional Público, 4th ed.
 Nadja Alexander and Shouyu Chong (eds), The Singapore Convention on Mediation: A Commentary, Global Trends in Dispute Resolution, 2019, pp. 21-43.
 Harold Abramson, The New Singapore Mediation Convention: The Process and Key Choices, December 2019, p. 16.
 Norel Rosner, “The Singapore Convention: Reflections on Articles 1.3 on Scope, 8.1 (b) on Reservations, and 12 on Regional Economic Integration Organizations”, in Singapore Mediation Convention Reference Book, Cardozo Journal of Conflict Resolution, volume 20, no. 4, 2019, p. 1259.
 Eunice Chua, “The Singapore Convention on Mediation – A Brighter Future for Asian Dispute Resolution,” Asian Journal of International Law, 9:2, July 2019, available at https://doi.org/10.1017/S2044251318000309.