Better conflicts, Better outcomes, Better world

CEDR note on the United Nations Convention on International
Settlement Agreements Resulting from Mediation(Known as the Singapore Convention)

3 February 2020

The Singapore Convention (the “Convention”) was adopted by the United Nations inDecember 2018 and was open for signatories in August 2019. The original rationale for theConvention was to give international commercial mediation a similar status to that ofarbitration, by helping harmonise the international rules for enforcement of mediatedsettlement agreements, just as arbitration awards were given recognition for cross-borderenforceability by the United Nations Convention on the Recognition and Enforcement ofForeign Arbitral Awards 1958 (the New York Convention). The rationale of these Conventions
is to support and harmonise international trade.
CEDR is keen to support the Convention, where applicable, but is aware that it will not comeinto effect until the Convention has been fully ratified/enacted by three countries. Until theratification/enactment requirements are fulfilled guidance on the Convention will need tobe limited.
What is the Singapore Convention?
The Convention is a legal Convention between signatory countries that cross- bordercommercial mediation settlements will be recognised and enforced between countries
who are signatories of the Convention. The Convention is designed to give assurance toparties in international disputes, who may otherwise have concerns that a settlement
achieved in a mediation will not be legally enforceable.
Initial significanceThe existence of the Convention most importantly builds confidence and provides
security for using mediation in those jurisdictions where there might have been
hesitation in using mediation as a dispute resolution mechanism.
Prior to the Convention, the enforcement of mediated cross-border settlements has notbeen a pressing need in a wide number of jurisdictions, as notably where commercial
mediation is established within the relevant jurisdiction settlement agreements arecomplied with as a matter of course and courts support settlements.
However in jurisdictions where mediation has not been established, or where mediation law
has not been enacted or coded into civil procedure, there is concern as to enforceability andCentre for Effective
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the potential for a party to renege on a mediated settlement. Therefore, in order to assuage
this concern, the Convention was developed to give explicit enforceability in signatory
countries.
A note of caution: Ratification of the Singapore Convention
Whilst 51 states have signed the Convention to date (February 2020) no state has ratified
the Convention. The Convention will come into effect six months after three states have
ratified it. At the time of drafting this note there is no indication of imminent ratification by
any signatories so for the time being the situation will need to be monitored fordevelopments.
CEDR is considering what changes may be necessary to its Rules, Model Documents andContract Clauses under the Convention and will ensure such changes are introduced when
ratification occurs.
The key points for consideration are:Evidencing origin of settlement under the Singapore Convention
A condition to apply for enforcement under the Convention will be to evidence that thesettlement agreement originates from a mediation. The Convention specifies ways in which
this can be evidenced, including that the Mediator has signed the settlement agreement or
the Mediator or an administering institution attests to the mediation having been carriedout, or any other evidence acceptable to the competent authority designated by a country
for the Convention.
CEDR is concerned that this would be problematic for the status of the process if thesignature of the Mediator were to be taken as some form of endorsement of the terms ofthe mediation settlement, albeit that the Mediation Agreement should protect the Mediatorfrom attempts to call him or her as a witness if there were to be any subsequent litigation.
Whilst a mediator will test the parties on terms or conditions which he or she believes may
be problematic in a settlement agreement, it is ultimately the parties’ decision to make anagreement and the content contained therein.
CEDR is currently considering options to allow the parties to satisfy the Convention whilst
also recognising the need for the Mediator to be independent, as it is CEDR’s view that theMediator should not sign an agreement between the parties. One option suggested is toattach as an appendix to the settlement agreement, the dated Mediation Agreement, which
does have the Mediator’s signature and which the parties refer to in the settlement. This

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Better conflicts, Better outcomes, Better world
appendix would serve as demonstrable proof that the settlement agreement was agreed,
drafted and signed in the mediation. (This would also apply if the Mediation Agreement wasfor multiple days and the Settlement Agreement was dated for the final day).
Settlement outside the mediation day(s)Where the settlement agreement occurs after the day of the mediation then achieving
protection under the Convention may be more challenging. Drafting of the settlementagreement may have occurred without the Mediator present and the Mediator may not beaware of any subsequent negotiation of detail that is included in a final settlementagreement. Thus, achieving endorsement from the Mediator that the settlementagreement resulted from the mediation could well be difficult.
Lawyers will need to consider these points – as well as whether to include any explicit
reference to the Convention - when drafting terms of settlement.
There are other issues raised for mediators around the questions of mediator conduct in theConvention (Article 5), and CEDR will be considering these over the coming year.

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Dispute Resolution
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Twitter @cedrsays

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Registered in England & Wales no. 3271988© CEDR 2022