This article is written by Tejaswini Bhagat.

Introduction

Be it a developed country like the United States or a developing country like India, people seeking justice wants expeditious, fair, inexpensive justice. However with the constant increasing population of countries the number of cases also increases thus, the pressure on the limited number of courts and judges is unbearable thus, to break this barrier and to provide fast, speedy, inexpensive justice the concept of Alternative Dispute Resolution was introduced which includes Mediation, Conciliation and Arbitration. Further, this article aims to enumerate upon Singapore Mediation convention which was incorporated with the same objective and to elucidate and critically analyse the conventions multi-disciplinary aspects the paper provide a detailed review upon the conventions background, scope, purpose, the various course of action before the inception of the said convention, analysis of significant provisions of the convention and its implication in India. 

The United Nations Commission on International Trade Law (UNCITRAL) formed a multi-lateral treaty which was known as United Nations Convention on International Settlement Agreements Resulting from Mediation which is famously called the Singapore Mediation Convention. It was adopted on 20th December 2019 and was scheduled for singing from 7th August 2019. However the journey of development of Singapore Mediation Convention was not easy it has been on the tables of discussions to be approved since 2014. In 2014 the United Nations proposed the idea of an international mediation convention however the same had little consensus, thereafter again in 2015 the United Nations created a working group II with the task of discussing and negotiating the idea of creating a International Mediation Convention, almost every state was in affirmation with the idea expect there was opposition by European Union. However after years of discussion, deliberations and negotiations in 2018 the first draft of Singapore Mediation Convention was approved and affirmed by The United Nations Commission on International Trade Law (UNCITRAL) and thereafter it was adopted on 20th December and was scheduled for singing from 7th August 2019. 

The Singapore Mediation Convention basically aims at providing a proper, reliable and uniform framework efficient recognition and enforcement of agreements which are settled by mediation and in particular revolves around the international commercial disputes and are a question of the same. It can be said that the Singapore Mediation Convention is akin to the New York Convention with respect to the jurisdiction of the cases with only difference being the former deals through mediation while the later deals through arbitration as its form. 

The Singapore Mediation Convention is also of great significance for Singapore as it is the first convention to be named after Singapore by the United Nations. 

Purpose

The Singapore Mediation Convention was formulated with an intention to facilitate expeditious, inexpensive adjudication of matters concerning to international commercial disputes through Mediation. However to understand the purpose the convention truly provides we must understand the meaning and advantages of the process of Mediation. Mediation is a process of dispute resolution. It is a process of negotiation and deliberations which occur between two parties in presence of a third party called the mediator. This mediator unlike the other dispute resolution mechanism is not the judge or the final verdict giver, the mediator just facilitate and moderate the process it is the two parties who themselves reach to a consensus and decides for themselves the mediator merely helps them to reach that consensus and as earlier stated acts as a Moderator and his award or judgement is unenforceable. 

Likewise the primitive goal of Singapore Mediation Convention is to promote cross border dispute resolution of international commercial disputes through Mediation. Earlier the stigma which ceased company to adopt for mediation as a means to dispute resolution was the unenforceability factor of mediation as mechanism for dispute resolution. Every company takes and invests an ample amount of time to settle a cross border dispute and enter into a mediated settled agreement, however since there is unavailability of binding factor and no regulations are there for its compliance any of the party can easily break-free of the norms of the agreement thus, the time, energy, money which was invested to incorporate the mediated settled agreement goes into vein thus, to avoid this wastage of resources companies usually avoid the course of mediation as a means to resolve cross border disputes. 

The Singapore Mediation Convention resolves this very contention and serves the primary purpose of making enforceable those agreements, contracts, covenants that have been settled by parties in the realm of International Commercial Mediation. Such provision was earlier absent and thus, the parties incorporated procedures like arbitration or knocking the doors of state judges to provide remedy through domestic laws however, now with the inception of Singapore Mediation Convention agreements which are earlier settled through mediation are recognized and are hence enforceable. This fill facilitate mediation as a means to resolve international disputes and will grant mediation the due it deserves. 

Scope

The scope of the convention is enumerated in Article 1 of the convention where it states that to fall with the purview of this convention the settlement should be mediated, it should be international, it should relate to a commercial issue and also the article excludes certain subjects which can be covered under the scope of the convention. The explanation of each of the following is mentioned below herewith:- 

• Mediated – The convention will cover the subject matter which is earlier mediated and a settlement agreement has arisen from the mediation process as the primary objective of the convention is to provide recognition and enforcement to the mediated settled agreement. 
• International – Second requisite to be covered under the purview of Singapore Mediation Convention is that the dispute or the subject matter should be international and should entail to a cross-border dispute. Thus, if the dispute prevails between two domestically situated subject matter the convention would not be applicable. 
• Commercial – Third requisite to be covered under the scope of the convention is that the subject matter should be commercial. The exact definition of the word commercial is not provided however the working group assented that the broadest interpretation should be adopted. 
• Specific Exclusion – The sub section 2 and 3 of Article 1 specifically excluded personal, family and household issues for example inheritance matters are excluded from the scope of the convention. Mediated settled agreements which are enforceable as judgements or arbitral awards (to avoid overlapping Hague Convention and New York Convention respectfully) are also excluded from the purview of the convention. 

Thus, it can be rightly stated that Singapore Mediation Convention scopes extend to subject matter entailing to cross-border (international) commercial disputes which are formerly mediated and thus for the recognition and enforcement of the same Singapore Mediation Convention is incepted. 

Current Scenario 

As of 1st September 2020 there were 53 signatories to Singapore Mediation Convention including USA and China and India signed the convention on July 2020, the convention was made effective from 12th September 2020. 

Course of Action for parties: Pre-Convention 

The deliberations of Singapore Mediation Convention were on tables since 2014 and the convention actually got effective in September 2020 as stated above however before the said convention the various course of actions which the parties to the agreement approached are mentioned below:

• International Treaties – Before the inception of Singapore Mediation Convention one of the course of action which the parties relied upon for resolution of the commercial dispute resolution were the International Treaties. The Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and The Choice of Court Convention are examples of few instruments which facilitate the resolution process under this sub-head. 
• Regional or Bilateral Treaties – Before the inception of Singapore Mediation Convention one of the course of action which the parties relied upon for resolution of the commercial dispute resolution were the Regional treaties or bi-lateral treaties for example the regional treaty of Latin America, the conventions produced under the aegis of the Inter-American Specialized Conferences on Private International Law, including the 1979 Inter-American Convention on Extrateritorial Validity of Foreign Judgments and Arbitral Awards and the 1984 Inter-American Convention on Jurisdiction in the International Sphere for the Extraterritorial Validity of Foreign Judgments, are pertinent in the region as they lay down conditions for enforcement of foreign judgments.
• Domestic Law – Before the inception of Singapore Mediation Convention one of the course of action which the parties relied upon for resolution of the commercial dispute resolution are Domestic Laws and the course of knocking the domestic court for resolution of the international disputes. For example under India’s Arbitration and Conciliation Act 1996 under section 73(3) a settlement agreement signed by parties has legal binding effect and effect of arbitral award. 
• Arbitration – Before the inception of Singapore Mediation Convention one of the course of action which the parties relied upon for resolution of the commercial dispute resolution is Arbitration and due to the binding effect of the same parties resort to arbitration as a resolution for dispute resolution. 

Thus, before the Singapore Mediation Convention these were the alternate dispute resolution which the parties resort to adopt because of the unenforceability of mediated settled agreements however even these options still remain ajar the said convention is presumed to promote mediation to new heights and facilitate disputes arising out of cross border trade.

Singapore Mediation Convention: Analysis of Convention and its Prominent Provisions

There are some prominent provisions of the Singapore Mediation Convention which makes the convention at hand unique and significant. Thus in this section of the article various sections and prominent provisions of the convention are critically analysed.

• Article 1 of the convention enumerates the scope of the convention and it exclaims that only mediated settled agreements which deals with international commercial disputes can be dealt under this convention and so that nothing else invades the purview of the convention even exclusionary clause of what cannot be entailed in the purview of the convention is also stated. Thus, the analysis of this specific provision leads the author to the conclusion that this article is of significance importance as it lays down the canopy of the convention and removes the ambiguity of the application of the provisions of the convention.  
• Article 4 lays down the pre-requisites which the mediated settled agreement should entail for example the article 4 of the convention states that the agreement should arise out of mediation, the mediated agreement should be signed by the parties, the evidence that the agreement was reached by mediation should be provided to the competent authority and should be signed by both the parties. It is necessary to prove that the agreement was reached after mediation thus to prove the same document showcasing the signature of the mediator is admissible evidence, or a document showcasing the signature of institute of mediator. Article 4(1) enumerates that the agreement which showcases that mediation has taken place should be in written form further Article 4(2) enumerates that the agreement which showcases that mediation has taken place can also be in electrical form if the same can be easily referred to when such proof is necessary. Thus, the analysis of this specific provision leads the author to the conclusion that as the primitive motive of the convention is the recognition and enforcement of mediated settled agreements it is a sine qua non to prove that the mediation has already taken place thus to prove the same this provision is inculcated in the convention and thus for this very reason the ambit of this article is kept very vast so that the mediated agreement can be recognized and the application of the convention can be done.
• Article 5 of the convention enumerates the grounds on which the court can refuse to recognize and enforce mediated settled agreements. However the list is exhaustive and to avoid any complexities and to provide expeditious justice the list is limited to a minimum. Additionally, the list is permissive and not mandatory thus only if the court permits that a certain refusal is applicable it shall be applicable and no new material can be added to the list as it is exhaustive. The list under Article 5 contains the various terms:

1. Incapacity – Under Article 5(1)(a) the court can refuse to recognize and enforce mediated settled agreements if the parties falls under the purview of incapacity. For example if the parties to the agreement was intoxicated or a minor. However there are minimum chances for this to happen as there are usually lawyers who deal during happening of these agreements.
2. Invalidity – Under Article (5)(1)(b)(i) the court can refuse to recognize and enforce mediated settled agreements if the same are null and void or inoperative or are invalid.
3. Not Binding or Not Final, According to its terms – Under Article (5)(1)(b)(ii) the court can refuse to recognize and enforce mediated settled agreements if the party got into the mediated agreement with the intention of not making a binding or final agreement. However according to the analysis of the author this provision could be avoided as this only increases the complexities in convention and also heightens the ambiguity. 
4. Subsequently Modified – Under Article (5)(1)(b)(iii) the court can refuse to recognize and enforce mediated settled agreements if the subsequent agreement which were to be referred to was modified and changed. Thus, if the terms of the mediated agreements were itself modified then how can the parties rely upon an agreement which was modified by the other party thus, to avoid the injustice the author is of the view that this particular provision was created
5. Obligations have been performed – Under Article (5)(1)(c)(i) the court can refuse to recognize and enforce mediated settled agreements if the obligations for which the agreement was initially made has been completed or performed. This particular provision is very obvious that a settlement is only valid till its obligations are not performed once its performed then for obvious reasons the court can refuse to recognize its enforceability again. 
6. Obligations are not clear or Comprehensible – Under Article (5)(1)(c)(ii) the court can refuse to recognize and enforce mediated settled agreements if the agreements reached through the mediation is not clear, is ambiguous or is not comprehensible. However this provision strikes in only when it is really difficult for the court to comprehend the agreement and no sense can be made out of the same. This provision serves a significant importance as the court has the power to refuse to recognize and enforce the agreement if no sense can be made out of the said settlement and the same can eliminate the ambiguity and through this provision the court can bring more clarity. 
7. Contrary to the terms of Settlement – Under Article (5)(1)(d) the court can refuse to recognize and enforce mediated settled agreements if the requested relief is in contrary to the terms of settlement which is already provide in the mediation earlier. The analysis of the author concludes that this provision is included so that the fundament principle of mediation which is the settlement of dispute through consensus does not changes as if the requested relief is in contrary to the terms of settlement then it will just serve the interest of one party and will eliminate the consensus angle. 
8. Misconduct of Mediator – Under Article (5)(1)(e) and Article (5)(1)(f) the court can refuse to recognize and enforce mediated settled agreements if the mediator misconducted during settlement of the dispute. For example partial treatment of one party, favouring one party more and etc. analysis of the author concludes that this provision is included so that if the earlier discussion of mediator which was based on certain misconduct or bias should not be continued further.

Thus, these are the various instances where the court can refuse to recognize and enforce mediated settled agreements and the various provisions are further analysed for the readers convenience and understanding. 

• Article 6 enumerates under the convention provides for a remedy to party if a parallel claim is made elsewhere apart from the competent authority under the convention after the mediated settlement and the right course of action should have been to seek remedy under the said convention. In such cases generally the decisions are adjourned and the aggrieved party is paid the security amount. The reason being for the said provision is that once a party is signatory to the convention the party have presumes that any dispute arising on the said mediated settlement agreement will be sorted under the agreement however if a party does not follow this they are breaking a procedure set by law thus to compensate the same a security amount is provided to the aggrieved party and the said decision is adjourned.
• Article 8 enumerates that the state can adopt the convention with certain reservations. Thus this shows that the convention understands the multifaceted dimensions of every country and how the scenario of each state and its companies can be different thus, to act upon the same the convention have provided that the countries can adopt the convention with certain reservations.

These are the various prominent provisions of the convention and for the same are further analysed for the readers convenience and understanding.

Implications and Advantages of the Convention: Worldwide and India

The Singapore Mediation Convention was created to give recognition and to enforce the settled mediated agreements, another objective of the convention was to facilitate cross border trade and to promote mediation as a mode of dispute resolution worldwide. Be it anywhere in the world the numbers of legal cases are drastically increasing. Especially in these uncertain times of corona virus and the pandemic the pressure on domestic courts are unbearable thus, providing alternative dispute resolution is a sine qua non more than ever. Thus, the reason that why international mediation was ran away from was its lack of enforceability but now with the inception of the convention the problem is changed for India as well as for countries who have signed the convention. Thus, with the convention providing such an enlightening pathway for dispute resolution the convention will benefit all its signatories. 

Further, analysing the implication of the convention on India then even India is a signatory of the convention and the signing of the convention will attract more foreign inventors, will boost the ruling government’s agenda of ease of doing business, expeditiously resolve international commercial disputes with efficient cost and will attract foreign capitals and etc. Thus, the implications of the Singapore Convention will be of great benefit to India. Even though India does not have specific legislation regarding Mediation and only a narrow canopy of provisions are provided for Mediation in India, however the signing of this convention is a great start for accepting mediation as a means of dispute resolution on an international front. 

Further, the advantage of the Singapore Convention which commonly benefits all the signatories of the convention (inclusive of India) are that the relationship between the parties will stay intact as any decision will occur only after consensus between the party, inexpensive way of dispute resolution, expeditious resolution of dispute, autonomy over issue, maintenance of privacy and confidentiality. Thus, these are the common benefit arising out of the convention which acts as the advantages of the signatories. 

Key Problems to the convention: A counter to the merit of the said convention

The Singapore Mediation Convention has a long list of advantages, benefits and merits however the newly made conventions is also incorporated with certain drawbacks thus, the same will be enumerated in this section of the article which basically deals as a counter to the advantages of the said convention. 

• Irregularity in certain Provision – Article 5 of the convention provides for various circumstances where the court can refuse to enforce and recognize the convention however the provisions Article 5(1)(e) which deals with Misconduct of the Mediator. However even if there is misconduct of mediator the same will be difficult to prove in the domestic court of law if the misconduct is only towards one party as the other party would deny the claims misconduct as the mediator may be biased towards him thus, in presence of only three parties where two are acting together as one it becomes difficult for the third party to prove misconduct or bring any witness to prove the misconduct of the mediator. 
• Showing that Mediation has taken place – Article 4 of the convention states that to fall under the ambit of the convention it must be proved that mediation has taken place and because of the same a mediated settled agreement has been reached and to showcase the same this article has been given a very wide scope thus including that the same can be proved through signature of mediator, signature of mediating institution, acceptance of documents in electronic form and etc however there are instances where in certain countries forging these documents are very easy thus, that will act in detriment to the other party, or where the mediators to avoid being a witness in the case avoid signing on such documents which can serve as evidence of them being present thus, in such a case the whole convention falls apart as one of the pre-requisite to fall under the ambit of the convention is to prove that mediation has taken place.
• Ambiguity in definitions – Basic but important definitions like ‘Commercial’ are not defined under the convention whereas the scope of the whole convention is based on the said word.

Thus, a critical analysis of the convention leads to development of the said counter analysis which according to the author serves as the demerits and shortcomings of the convention. 

Suggestions and Conclusion

The Singapore Mediation Convention has multifaceted dimensions through which benefits its signatories and moreover how it benefits holistically. Nobody is unaware from the atrocities which this corona virus and this pandemic have spread. One of the prominent regions where the pandemic have affected the most is the business sector, thus the ease of doing business, the investments, foreign capitals everything has deteriorated moreover if these business houses now gets into the complexities of legal procedure during such times that will be equivalent to suicide for them thus, to facilitate expeditious and inexpensive dispute resolution, to encompass the complex usual lengthy and costly procedure of domestic courts and to promote commercial activities across borders, the Singapore Convention is a blessing. Further one of the reasons why the convention became effective during an on-going pandemic that is 12th September 2020 was to facilitate cross border business and provide a less complex method of dispute resolution which is Mediation.

For instance, in India companies like Toyata and Ford are ceasing to continue business as the complexities in law is hampering them thus, India being a signatory to Singapore Convention can change this picture and help in the ruling party motto of ease of doing business. Moreover, the convention needs a few embellishments thus for the same the author suggests steps like providing definition of words like commercial and defining the scope of Article 5(1)(e) of the convention about the misconduct of mediator and to erase the ambiguity regarding the showcasing of evidence pertaining to mediation being taken place as mentioned in the counter analysis section of the article. 

The Singapore Convention according to the author of the paper is a need of the hour to boost the stomped cross- border commercial activities and business by the pandemic and to promote the mode of mediation as a means of dispute resolution and to promote an expeditious and inexpensive way of dispute resolution if the conventions works in its true sprits then it can be the way forward and can act as a missing piece of puzzle in the world of various dispute resolution mechanisms. 

References

• Statutes 

1. Section 73 of Arbitration and Conciliation Act 2006

• International Conventions

1. Article 1 of Singapore Convention on Mediation 2019
2. Article 4 of Singapore Convention on Mediation 2019
3. Article 5 of Singapore Convention on Mediation 2019
4. Article 6 of Singapore Convention on Mediation 2019
5. Article 8 of Singapore Convention on Mediation 2019
6. New York Convention of 1958

• Online Articles 

1. Timothy Schnabel, The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements, JD Yale School, file:///C:/Users/USER-6/Downloads/SSRN-id3439902.pdf, 05.10.2020, 16:06.
2. Alok Vajpeyi and Gauri Bharti, India: Singapore Mediation Convention: A New Light At The End Of The Tunnel?, Mondaq, https://www.mondaq.com/india/trials-appeals-compensation/834510/singapore-mediation-convention-a-new-light-at-the-end-of-the-tunnel#_ftn1, 05.10.2020, 16:06.
3. Justice R.V. Raveendran, Mediation -Its Importance and Relevance, The Supreme Court Cases, http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=19353, 05.10.2020, 17:06.
4. Timothy Schnabel, Implementation of the Singapore Convention: Federalism, Self-Execution, and Private Law Treaties, 30 Am. Rev. Int’l Arb., 265 (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3320823, 05.10.2020, 17:06.
5. Our Bureau, The Hindu Business, Singapore Convention on Mediation enters into force, https://www.thehindubusinessline.com/economy/singapore-convention-on-mediation-enters-into-force/article32586701.ece, 05.10.2020, 17:06
6. Eunice CHUA, Enforcement of international mediated Settlements without the Singapore Convention on mediation, (2019) 31 SAcLJ 572, 05.10.2020, 17:06
7. F. Peter Phillips, Concerns on the New Singapore Convention, Mediate, https://www.mediate.com/articles/phillips-concerns-singapore.cfm, 05.10.2020, 22:29.
8. Halts business expansion, Hindustan Times, https://auto.hindustantimes.com/auto/news/toyota-halts-india-expansion-blaming-we-don-t-want-you-taxes-41600138332084.html, 05.10.2020, 22:29.

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: