ARTICLE 2: DEFINITIONS

2. A settlement agreement is “in writing” if its content is recorded in any form. The requirement that a settlement agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference.

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).

Iara Câmara

Nuna Brito

The United Nations Convention on International Mediation Agreements, known as the Singapore Mediation Convention, devotes its first article to its scope of application[1] , with paragraph 1 providing that “this Convention applies to an agreement resulting from mediation and concluded in writing by parties “[2]. A contrario, it follows that the United Nations Convention on International Mediation Agreements is not applicable to agreements not concluded in writing, namely, to agreements resulting from oral communications between the parties.

When we look at the expression “concluded in writing” we are obliged to refer to Article 2(2) of the United Nations Convention on International Mediation Agreements, which regulates the form of the agreement and allows us to assess under what circumstances a given agreement can be considered to be made “in writing”.

 This Convention imposes minimum formal requirements, which allows it to guarantee greater simplicity in its application, without forgetting the minimum requirements aimed at avoiding possible abuses[3] . In fact, it is common knowledge that formal requirements can fulfil a variety of functions, including the facilitation of proof, the protection of consent, the control of legality, publicity, compliance[4] , the possibility of greater consideration by the parties involved[5] , taking into account the specific interests of the parties[6], etc. Thus, the Convention provides for the possibility of considering as written any agreement “if its content is recorded in any form”.

No strict linguistic criteria were used in the expression “recorded in any form”. This requirement is so broad that it allows us to understand that it is only required that the content of the agreement is contained in any document that allows subsequent access to what has been clearly agreed, that is, it is not the type of document that matters, but the possibility of subsequent access to the content of the agreement[7] .

This formal requirement is not new to us in mediation, since the Portuguese Mediation Law (Law no. 29/2013, of April 19), in its article 20, provides for the adoption of written form as one of the requirements of the agreement. This formal requirement represents a deviation from the rule of freedom of form, enshrined in Article 219 of the Portuguese Civil Code, which marks the Portuguese civil law[8] and is embodied in the idea according to which legal transactions are not subject to special form, except when the law requires it.

However, the concept of written form that integrates the Portuguese civil law is not to be confused with the notion of written form adopted by the Singapore Mediation Convention. Our Civil Code comprises numerous contracts whose validity depends on the fulfilment of formal requirements, which involve not only the written form itself, but a specific type of document. For instance, “the contract of purchase and sale of real estate is only valid if concluded by public deed or by notarised private document”, as stated in article 875 of the Portuguese Civil Code. However, as already mentioned, the concept of the written form provided for in the Convention is separate from the type of document concerned.

Moreover, it is not only in this field that the Portuguese Mediation Law deprives us of the novelty character, since also in paragraph 2 of Article 12 it considers the requirement of the written form satisfied when the agreement results from electronic means of communication. However, Article 2 (2) of the United Nations Convention on International Mediation Agreements provides, in the same sense, that the “requirement that a settlement agreement be in writing is met by an electronic communication”.

This acceptance of the electronic way[9] is understood by the recognition of the increase in the use of online mechanisms[10] (which are characterised by the facilitation of communication), the possibility of resolving disputes over the Internet, as well as the fact that statements issued electronically satisfy the need to guarantee the reliability and preservation of the content of the agreement.

There is a wide range of electronic means of communication that offer written evidence that can be accessed later: email, SMS, messages exchanged through various applications (WhatsApp, Facebook, etc.), telegrams, faxes, and many other electronic means of communication. It should be noted that only those that seem reliable and allow access to the content of the agreement for later reference will comply with the written form[11]^/[12] .

The Portuguese Voluntary Arbitration Law (Law No 63/2011, 14 December) also employs a broad concept of written form[13], in its article 2 paragraph 2, by providing that “the requirement of written form is satisfied when the agreement is contained in a written document signed by the parties, exchange of letters, telegrams, telefaxes or other means of telecommunication of which there is written evidence, including electronic means of communication”. Now, a careful reading of this precept allows us to affirm the fulfilment of this formal requirement through an exchange of email messages, as confirmed by the Judgment of the Lisbon Court of Appeal of 07-07-2016[14], according to which we should understand that “it constitutes a written agreement, the one that results from an exchange of email messages” or even a click on an icon on a website that expresses the acceptance.

If this discussion is generated around the breadth of the concept of “written form”, it is reasonable to state the possibility of it arising under the United Nations Convention on International Mediation Agreements, in which this formal requirement is also enshrined in a comprehensive manner.

On the subject of electronic documents, Dário Moura Vicente also adds that, in view of this amplitude of this formal requirement, it would be more correct to differentiate between written form and full evidentiary force[15], in the sense that only signed documents have full evidentiary force as to the statements attributed to their author (cf. article 376, no. 1 of the Portuguese Civil Code), but both signed documents and unsigned documents may satisfy the requirement of written form[16].

On a last note, it should be noted that the United Nations Convention on International Mediation Agreements does not require that the agreement be contained in a single document, that is, the Convention only determines that the content of the agreement must be documented and be accessible for later consultation, not mentioning anything regarding its inclusion in a single document. Thus, it may be understood that the Singapore Mediation Convention, while not pronouncing itself in this respect, admits the fractionation of the agreement in several documents, for example, in an exchange of several emails[17] .

[1] Edna Sussman, “The Singapore Convention – Promoting the Enforcement and Recognition of International Mediated Settlement Agreements”, in ICC Dispute Resolution Bulletin, no. 3, 2018, p. 50.

[2] Andrea Marighetto, “The UN Convention and the Importance of Friendly Dispute Resolution”, Revista Consultor Jurídico, 2020, p. 2; Muigua Kariuki, “The Singapore Convention on International Settlement Agreements Resulting from Mediation: Challenges and Prospects for African States”, 2019, p. 4.

[3] Dorcas Quek Anderson, “The Singapore Convention on Mediation: Supplying the Missing Piece of the Puzzle for Dispute Resolution”, Forthcoming Journal of the Malaysian Judiciary, 2020, pp. 1-18, p. 11.

[4] Abílio Neto, Código Civil Anotado, 20th updated edition, Ediforum, 2018, p. 119.

[5] Ana Prata, Civil Code Annotated, volume 1, 1st edition, Almedina, 2017, p. 272.

[6] Carlos Ferreira de Almeida, Contracts I – Concepts, Sources, Formation, 6th Edition, Almedina, 2018, pp. 105-106.

[7] Elisabetta Silvestri, “The Singapore Convention on Mediated Settlement Agreements: A New String to the Bow of International Mediation?”, in Access to Justice in Eastern Europe, no. 3, 2019, pp. 193-194; Lucy Reed, “Ultima Thule: Prospects for International Commercial Mediation”, in NUS Centre for International Law, Research, article no. 19/03, 2019, p. 14.

[8]  Dulce Lopes and Afonso Patrão, Lei da Mediação Comentada, Almedina, Coimbra, 2014, pp. 138-139.

[9] Romesh Weeramantry and John Choongs, “Will the Introduction of the Singapore Mediation Convention Put an End to International Arbitration?”, in Asian Dispute Review, Hong Kong International Arbitration Centre, volume 21, no. 4, 2019, pp. 164-169, p. 2.

[10] Nadja Alexander and Shouyu Chong, “Singapore Case Note: Enforceability of settlement agreements”, in Kluwer Law International, 2019, p. 2.

[11] Kabir Singh; Lijun Chiu; Mattew Brown; Nish Shetty; Paul Sandosham, “Client Update: Singapore Mediation Convention”, in Law Review, Clifford Chance Law Firm, 2019, p. 2.

[12] Rajesh Sharma, “The Singapore Convention – A Drone’s View”, Contemporary Asia Arbitration Journal, volume 12, no. 2, 2019, pp. 272-273; Timothy Schnabel, “Implementation of the Singapore Convention: Federalism, Self-Execution, and Private Law Treaties”, in The American Review of International Arbitration, 30 Am. Rev. Int’l Arb. at 265, 2020, pp. 268-269.

[13] Manuel Pereira Barrocas, Arbitration Law Commented, 2018, Almedina, Coimbra, pp. 40-42.

[14] Judgment of the Court of Appeal, 07.07.2016, case number: 508/14.0TBLNH-A.L1-2, available at: www.dgsi.pt.

[15] Dário Moura Vicente, “A Manifestação do Consentimento na Convenção de Arbitragem” [The Consent Manifestation in the Arbitration Convention], Revista da Faculdade de Direito da Universidade de Lisboa, volume 43, no. 2, 2002, p. 1002.

[16] Mariana França Gouveia, Curso de Resolução Alternativa de Litígios, Reprint of the 3rd Edition of 2014, Almedina, 2019, p. 133.

[17] Nadja Alexander and Shouyu Chong, “The Singapore Convention on Mediation: A Commentary”, in Kluwer Mediation Blog, Singapore International Dispute Resolution Academy, 2019, pp. 2-3.