ARTICLE 4 – REQUIREMENTS FOR RELIANCE ON SETTLEMENT AGREEMENTS

1. A party relying on a settlement agreement under this Convention shall supply to the competent authority of the Party to the Convention 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.

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).

Catarina Candeias

Guilherme Cabral

1. The concept of “enforcing the agreement”; 2. The concept of “competent authority”; 3. Enforceability requirements; 4. The exhaustive nature of the list of requirements and Article 3, paragraph 1; 5. Comparison with Article 9 of the Portuguese Mediation Law.

1. The concept of “enforcing the agreement” essentially covers the right of the parties to have the agreement recognised and enforced in accordance with Article 3 of the Singapore Convention[1]. The expression used arises from the need felt by the drafters of the Convention to avoid referring to the enforcement mechanism in question as “recognition” or “enforcement” of the agreement, so as not to raise discordant interpretations arising from the possible legal translations[2] and the concretisation of these in the different legal systems of the signatory States. Thus, the right to enforce the agreement may be considered as a “sword”, insofar as the courts of the signatory States are required to enforce the agreement resulting from mediation, and as a “shield” since it allows that same agreement to be invoked by a party faced with a claim made by the other party against it, if that claim is inconsistent with such agreement[3].

2. The concept of “competent authority”, on the other hand, although not defined in the Convention, is less controversial and has been interpreted[4] as the court or any other authority empowered to consider such matters before the State concerned, including an arbitral tribunal in that State.

3. The Working Group opted for few requirements, aiming for a minimum standard that would allow the proper functioning of the Singapore Convention[5] and favour as much as possible the circulation of mediation agreements[6]. Note that it will not be necessary for the party to “enforce the agreement” in the State in which the mediation took place. It may enforce it in a place without close connection with the parties or with the dispute itself[7].

As a first requirement, we find, in paragraph 1(a), the need for the agreement to be signed by the parties, with the aim of making it more difficult to produce fraudulent agreements[8]. Regarding this requirement, there was a significant debate in the Working Group on whether or not to require a signature by the mediator[9], which was eventually excluded by the diversity of national mediation practices and legislations. There are States in which it is common practice for the mediator to sign the agreement (this will be the case in Portugal and in some European countries), while in others this practice is rejected[10] (as in the United States and the United Kingdom) due to the risks it may entail in terms of impartiality and independence of the mediator: the fact that the mediator signs the agreement may be taken as an acceptance of the content of that agreement, which only concerns the parties[11].

Faced with the presence of incompatible systems, the alternative found was not to require the signature of the mediator as a requirement, but to incorporate it as one of the possible ways of proving that the agreement was obtained in mediation, exemplified in paragraph 1(b).

Paragraph 1(b) requires, as a second requirement, proof that the agreement was reached in mediation, with an open list[12] of examples of what may constitute such proof:

i) The first possibility of proof involves the aforementioned signature of the agreement by the mediator, which is in line with the practice carried out by some States[13].

ii) Proof is also possible through a document signed by the mediator indicating that the mediation took place. This is a minimalist document, the use of which has been increasing and is common practice in countries such as the United States of America[14]. It may be written at the time of the mediation or afterwards, being only necessary that it contains the confirmation that a mediation has occurred between those parties[15]. It does not have to contain information about the extent of the mediation or about the terms of the agreement[16], in respect for the confidentiality that mediation aims to promote.

iii) Alternatively, if the mediation is institutionalised, the parties may present a declaration of the institution to which the dispute was submitted confirming that it managed the dispute. This option, although it may be used whenever it seems necessary to prove that the agreement was mediated, still allows a solution for cases in which there is an impossibility of the mediator to subsequently sign the document indicating that the mediation took place[17] – as in situations of death of the mediator, physical or psychological illness, impossibility of being found or contacted, among other similar circumstances.

(iv) In the event that it is not possible to present any of the alternatives explained, the Convention also allows the parties to present any other evidence – such as a payment invoice to the mediator, which suggests the occurrence of a mediation[18] – provided that such evidence is admitted by the competent authority. This scope is aimed at preventing the parties from evading recognition and enforcement of the agreement and, consequently, their obligations[19].  

The evidence requirement thus aims to avoid fraudulent situations and ensure that the Convention applies only to cases where mediation has actually taken place[20], making it easier for the competent authority to obtain the conviction that the agreement was mediated. It leaves, however, some autonomy to the competent authority[21], derived from the open list of examples, to assess and decide what may be taken as evidence for this purpose.

4. The question arises as to whether the requirements of Article 4(1) are exhaustive or exemplary, which is especially relevant when compared with Article 3(1) of the Singapore Convention. It has been understood that the list is exhaustive and that the courts of the signatory States are not allowed to impose additional formal and evidentiary requirements to enforce the agreement[22]. These provisions appear, at first glance, to be contradictory to the extent that Article 3 states that states shall enforce agreements in accordance with their procedural rules, but then the requirements for enforcing the agreement (in Article 4) are exhaustive, and the signatory state may not adjust them to its procedural law. However, the combination of such provisions acts as a braking system, limiting the requirements necessary to enforce the agreement to an adequate and workable minimum on an international scale. Such a system will aim to form a cohesive and uniform international normative framework on mediation, giving less relevance to national legislations, which are numerous and diverse among themselves, facilitating the enforcement of these agreements and allowing an increase in their international circulation.

The signatory States are then free to make agreements in mediation enforceable, following their procedural rules, but this freedom must fall within the limits provided by the Convention in relation to the scope (see Article 1), form and proof[23] , not being able to foresee more demanding requirements. In this sense, the State may not require, for example, that the agreement has been concluded before a mediator of the State in which the agreement is to be enforced or that the mediator has specific training in mediation.

5. At national level, Article 9, paragraph 1, of the Portuguese Mediation Law (Law No. 29/2013 of 19 April, hereinafter PML) includes some requirements for the attribution of enforceability, most of these being covered by Article 5 of the Singapore Convention. However, the Portuguese law requires a requirement that is not foreseen in the Convention: the requirement of participation of a mediator registered in the list of mediators organized by the Ministry of Justice (see article 9, no. 1, par. e of the PML), which must have training in a course of mediation of conflicts[24] . As we have seen above, it will not be possible for the courts of the State in question to demand different requirements from those of the Convention, so that, if Portugal adheres to the Convention, the international mediation agreement that the party wishes to enforce in Portugal will be enforceable even if the mediator is not registered in the Portuguese list. Note that the Convention applies only to international agreements, so that Portugal may maintain this requirement of Article 9(1) of the PML for the mediation agreements without international character.

The same ratio is followed in the PML itself, in Article 9(4), when it significantly reduces – to only two – the scope of requirements necessary for the automatic recognition of the enforceability of mediation agreements established in other EU Member States. It is uncertain the reason behind such disparities, which may be related to the normative differences that international litigation entails, such as reasons of credibility or others. It is certain that, if Portugal ratifies the Convention, it will have to assess whether such disparities in treatment are justified in the Portuguese legal system.

3. If 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.

Paragraph 3 of Article 4 of the Convention allows the competent authority to request the translation of the agreement into the official language of the State before which the measures are requested[25], when the agreement is written in another language. This rule is a reflection of the internationality that underlies the conclusion of mediation agreements in contemporary societies, internationality that the Singapore Convention aims to regulate and promote, and which is required by the globalisation process we are witnessing nowadays.

Thus, in order for it to be possible for the competent authority to apply the enforcement measures provided for in the Convention, an assessment of the content of the agreement is necessary, which necessarily implies understanding it.

Knowledge of several languages being too onerous, the competent authority is given the possibility of requiring a translation of the agreement. A similar possibility is found in the Portuguese Code of Civil Procedure, namely in article 134, which requires that the documents submitted to the court in a foreign language be duly translated. In both the Singapore Convention and the national legislation, the interests to be safeguarded are coincident: the promotion of globalisation of agreements and the facilitation of communication and understanding in international litigation.

4. The competent authority may require any necessary document in order to verify that the requirements of the Convention have been complied with.

Without prejudice to all forms of evidence to which the parties may have recourse, Article 4(4) also gives the competent authority the possibility of requesting any documents that may be necessary to verify that the requirements set out in the Convention are met. It should be borne in mind that this possibility is not an expedient that will enable the court to demand more onerous requirements than the minimum standard provided for in the Convention[26], since, as stated above, this list is exhaustive and its limits must be respected by the competent authority.

Even if the parties fulfil the requirements in question, this may not be sufficient to enforce the agreement. If the counterparty, upon application, proves one or more of the requirements under Article 5 of the Convention, the competent authority may reject the measures requested.

[1] Nadja Alexander and Shouyu Chong, “Article 4. – Requirements for Reliance on Settlement Agreements”, in The Singapore Convention on Mediation: A Commentary, volume 8, Wolters Kluwer, 2019, p. 76.

[2] Nadja Alexander and Shouyu Chong, “Article 4. – Requirements for Reliance on Settlement Agreements”, 2019, p. 76.

[3] Andrea Martignoni; Jonathan Light; Claire Macdonald, “Singapore Convention on Mediation: A Step Towards Easier Enforcement of International Settlements”, Insights and News, Allens Law Firm Website, 2019, p. 3.

[4] Nadja Alexander and Shouyu Chong, “Article 4. – Requirements for Reliance on Settlement Agreements”, 2019, p. 76; Timothy Schnabel, “The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements”, Pepperdine Dispute Resolution Law Journal, volume 19, no. 1, 2019, p. 34.

[5] Timothy Schnabel, “The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements”, 2019, pp. 27-28.

[6] Carlos Esplugues Mota, “La Convención de Singapur de 2018 sobre Mediación y la Creación de un Título Deslocalizado Dotado de Fuerza Ejecutiva: Una Apuesta Novedosa, y un Mal Relato”, Revista Española de Derecho Internacional, volume 72, no. 1, 2020, p. 69.

[7] Edna Sussman, “The Singapore Convention – Promoting the Enforcement and Recognition of International Mediated Settlement Agreements”, ICC Dispute Resolution Bulletin, no. 3, 2018, p. 51.

[8] Allan J. Stitt, “The Singapore Convention: When has a Mediation Taken Place (Article 4)?”, Cardozo Journal of Conflict Resolution: Singapore Mediation Convention Reference Book, volume 20, no. 4, 2019, p. 1175.

[9] Allan J. Stitt, “The Singapore Convention: When has a Mediation Taken Place (Article 4)?”, 2019, p. 1176.

[10] Allan J. Stitt, “The Singapore Convention: When has a Mediation Taken Place (Article 4)?”, 2019, p. 1176.

[11] Nadja Alexander and Shouyu Chong, “Article 4. – Requirements for Reliance on Settlement Agreements”, 2019, p. 79.

[12] Carlos Esplugues Mota, “La Convención de Singapur de 2018 sobre Mediación y la Creación de un Título Deslocalizado Dotado de Fuerza Ejecutiva: Una Apuesta Novedosa, y un Mal Relato”, 2020, p. 70; Ignacio Jorge Tasende Iturvide, “Reflexiones sobre la Nueva Convención de las Naciones Unidas sobre los Acuerdos de Transacción Internacionales Resultantes de la Mediación (“Singapore Convention”)”, Revista de Derecho de la Universidad de Montevideo, no. 37, 2020, p. 83.

[13] Allan J. Stitt, “The Singapore Convention: When has a Mediation Taken Place (Article 4)?”, 2019, p. 1177.

[14] Nadja Alexander and Shouyu Chong, “Article 4. – Requirements for Reliance on Settlement Agreements”, 2019, p. 79.

[15] Nadja Alexander and Shouyu Chong, “Article 4. – Requirements for Reliance on Settlement Agreements”, 2019, p. 79.

[16] Allan J. Stitt, “The Singapore Convention: When has a Mediation Taken Place (Article 4)?”, 2019, p. 1177.

[17] Timothy Schnabel, “The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements”, 2019, p. 32.

[18] Allan J. Stitt, “The Singapore Convention: When has a Mediation Taken Place (Article 4)?”, 2019, p. 1177.

[19] Allan J. Stitt, “The Singapore Convention: When has a Mediation Taken Place (Article 4)?”, 2019, p. 1177.

[20] Timothy Schnabel, “The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements”, 2019, p. 30.

[21] Shouyu Chong and Felix Stefek, “Enfourcement of International Settlement Agreements Resulting from Mediation under the Singapore Convention – Private International Law Issues in Perspective”, Singapore Academy of Law Journal, no. 31, 2019, p. 468.

[22] Shouyu Chong and Felix Stefek, “Enfourcement of International Settlement Agreements Resulting from Mediation under the Singapore Convention – Private International Law Issues in Perspective”, 2019, p. 468; Nadja Alexander and Shouyu Chong, “An Introduction to the Singapore Convention on Mediation – Perspectives from Singapore”, Nederlands-Vlaams tijdschrift voor Mediation en conflictmanagement, no. 22, 2018, p. 43.

[23] Shouyu Chong and Felix Stefek, “Enfourcement of International Settlement Agreements Resulting from Mediation under the Singapore Convention – Private International Law Issues in Perspective”, 2019, pp. 464-465.

[24] Dulce Lopes and Afonso Patrão, Lei da Mediação Comentada, Almedina, 2014, p. 20; Article 3, no. 1 b), of Ordinance no. 344/2013, of 27 November.

[25] Bárbara Sánchez López, “La Eficacia Transfronteriza de los Acuerdos de Mediación y la Convención de Singapur: ¿Grandes Esperanzas?”, Cuadernos de Derecho Transnacional, volume 12, no. 2 2020, p. 1431.

[26] Nadja Alexander; Shou Yu Chong, “Article 4. – Requirements for Reliance on Settlement Agreements”, 2019, pp. 80-81.