Catarina Bárbara

Francisca Fernandes

 

The United Nations Convention on International Mediation Agreements, commonly referred to as the Singapore Mediation Convention, is a multilateral treaty developed by the United Nations Commission on International Trade Law (UNCITRAL), which aims to provide a uniform and efficient framework for the recognition and enforcement of mediated agreements resolving international disputes^[1] .

UNCITRAL is the central legal body of the United Nations system in the field of International Trade Law, whose main objective is the promotion of the progressive harmonization and unification of International Trade Law, having been created by the UN General Assembly in 1966, through Resolution 2205 (XXI) of 17 December 1966^[2] . This body determines its work programme on the basis of proposals received from States or Organisations. Its organisation is autonomous, as it sets its own agenda and analyses the work of its various groups to which it assigns projects. It is also tasked with preparing and promoting the use and adoption of legislative and non-legislative instruments in several key areas of commercial law.

The drafting of the Singapore Convention on Mediation was delegated to UNCITRAL Working Group II. Going through a pre-process of informal negotiations and the result of several months of consultations, with various interest groups and experts in the field, the proposal for the Convention was formally presented at the July 2014 session. The recommendations of this Working Group were sent to UNCITRAL for adoption. In turn, with regard to the proposed conventions, they were first sent to UNCITRAL and then to the General Assembly for consideration and adoption.

The drafting of this Convention results from a high level of intellectual capacity and a pooling of efforts of various experts, with a view to legal and political harmonization in the field of Mediation. The Convention was further influenced by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards^[3] , which marked the turning point in the history of arbitration.

 

"We should not be afraid of confrontations...even planets collide and from chaos stars are born"[4] .

 

We can state that the beginning of this project was troubled and not without doubts, given that there was a fear that the drafting of the Convention would take years and that even investing all that time, the effort expended would obtain the same results as those obtained in the development of the draft Model Law on Mediation, which did not incorporate substantive provisions.

It took three years of deliberations, with the participation of eighty-five United Nations member states and thirty-five governmental and non-governmental organisations^[5] to bring the Convention to a successful conclusion.

The two key moments in the drafting of this Convention now fall to us. Let us take a look at them.

 

The negotiations consisted of six sessions, two each year, each lasting between one and two weeks. Consensus was reached through six methods used during these sessions to maximise the productivity of each session, such as^[6]:

(1) meetings with the whole group, where the essential points of each session were discussed, guided by Chair Natalie Morris-Sharma, a member of the Singapore delegation;

(2) consultations, a very effective and widely used method, which involved the chairperson suspending a session when there was an impasse or lack of consensus on a significant issue. It consisted in the formation of small groups, with delegates meeting for about thirty minutes to develop proposals that would subsequently be discussed with the entire group;

(3) educational programmes for delegates, aimed at training delegates and the public, organized by UNCITRAL, on issues relevant to the main stages of the Convention drafting process;

(4) contributions from NGOs, encouraged by UNCITRAL to participate in the meetings, as their opinion reflects experience and knowledge enriching the debates in question. Indeed, these organisations contributed in various ways during the drafting process and were welcomed by many state delegations. Also the European Union, as a regional economic integration organisation, represented by the European Commission, participated actively throughout the 3 years, constituting around 25% of the delegates present at each session;

(5) preparatory papers, widely known as travaux, assisted the deliberations as they unfolded, thus creating the possibility for all participants to follow the course of the negotiations. These documents offered a detailed and up-to-date record of the content of each session. Moreover, no names of individuals, countries or NGOs were given in order to maintain anonymity. These reports were published on the UNCITRAL website and constitute an instrument capable of assisting in the understanding and interpretation of the Convention;^[7]

(6) voting, which did not follow the formal pattern. It was the responsibility of the Chair to verify when the working group reached consensus and, when this seemed impossible, to adopt the necessary techniques to achieve it.

 

UNCITRAL's efforts towards the harmonization of International Trade Law on international agreements date back to the end of the last century, beginning of this century. As early as 1980 and 2002 UNCITRAL had adopted some instruments in this regard: Conciliation Rules^[8] and the Model Law on International Commercial Conciliation.

The difficulties experienced at the time, during the negotiations of the Model Law on International Commercial Conciliation, in relation to certain points, were once again present in the negotiations of this latest project carried out by UNCITRAL on mediation. We highlight the issue of the enforceability of agreements resulting from mediation processes that, as in the past, generated difficulties in reaching consensus.

Among the various sessions held, it should be noted that it was in 2014, at its 47th session, that the UNCITRAL Commission agreed to assign Working Group II the task of working on the issue of enforcement of agreements reached in mediation. Subsequently, in February 2015, the delegates, together with non-governmental organizations and other observers, conducted a thorough review of the proposal submitted by the United States^[9] , which resulted in a recommendation for adoption of the draft by the Commission. 

Consequently, it ordered work to begin on the subject without defining the instrument that would shape the outcome of the project^[10] .

This session was also notable for the controversy regarding the scope of application of the Convention - more precisely, whether its application would be restricted in economic terms - an issue that was ultimately decided in the direction adopted by the New York Convention, i.e. ultimately opting for a broader view of the instrument in question.

The scope of the convention, meanwhile, was agreed at the 63rd session in September 2015 (which took place in Vienna). It was defined that the Singapore Convention on Mediation should apply to mediation agreements only when they settle a commercial dispute; when they are international agreements; when they have been reduced to a written document and signed by both parties; and when they are the result of a mediation process in which a third party, the mediator, has intervened.

The resulting definition of Mediation has generated a great deal of controversy, due to the possibility that, in some jurisdictions, the mediator may assume the role of arbitrator in the event that the parties are unable to amicably reach agreement^[11] .

One of the most important sessions was held in February 2017, the 66th session, at which the "five-issue package", also known as the "compromise proposal", was adopted, which proved to be an important impetus in these negotiations. This package had already been discussed at the previous session in September 2016. It was composed of the five points on which there were the most divergences in the negotiations and whose solution was dependent on the others. They were: ^[12]

(a) the legal effect of mediation agreements and whether to include both the term enforcement and recognition of agreements, bearing in mind that terminology varies in different jurisdictions and in particular between civil law and common law;

(b) mediation agreements concluded in the course of judicial or arbitral proceedings, which, only in the event that they do not take the form of a court judgment or arbitral award, incorporate the scope of the Convention, an option taken in order to make the various international instruments on the same subject compatible so as to avoid loopholes;

(c) whether States should be allowed to include an opt-in system whereby the Convention would apply only where there was a declaration by the parties to that effect. At issue in this question was the consensual nature of the mediation process versus the promotion of international commercial mediation and the facilitation of the enforcement of mediation agreements. The opt-in system was eventually included in Article 8(1)(b);

(d) impact of the mediation process and the conduct of mediators. Here the debate focused on what would be the grounds for refusal of a mediator, considering the effect that their conduct may cause on the mediation process, always taking into consideration the principles of due process;

(e) to know what form the instrument should take, namely Convention or model law. On 9 February 2018, UNCITRAL Working Group II completed the drafting of the convention. However, only on 26 June 2018, at its 51st annual session held in New York, did UNCITRAL approve the final drafts for a Convention on International Mediation Agreements and for a Model Law on International Commercial Mediation.^[13]

Also in 2018, on 20 December, the Convention was approved and adopted by the United Nations General Assembly through Resolution 73/198 and was opened for signature on 7 August 2019 in a ceremony hosted by the Government of Singapore, which had 46 signatures from United Nations Member States. Currently, the Convention already has 54 signatory States^[14]. 

The "Singapore Convention on International Mediation Agreements" entered into force on 12 September 2020^[15].

Will the outcome of these negotiations be yet another star born in the universe of alternative dispute resolution?

It is our understanding that the final result obtained was only possible through countless debates and some informal conversations, and the persistence and thorough work of all those who took part in this preparatory work, which resulted in an enormous contribution to changing the world of alternative dispute resolution, is to be praised.