By Bryanna Rainwater
According to the Singapore Convention on Mediation’s website, the Convention is a “multilateral treaty which offers a uniform and efficient framework for the enforcement and invocation of international agreements resulting from mediation.”
The speakers at the Oct. 6 CPR International Conference kickoff panel, “Effects on Cross-Border Disputes After the Singapore Convention” gave more context to the current legal landscape after the Convention has come into force.
The Convention was passed by resolution by the U.N.’s General Assembly in 2018, and signed into effect in August 2019. It has been hailed as a huge boost for mediation because it provides support for the effectiveness of the agreements the process produces.
The panel’s moderator was Javier Fernández-Samaniego, managing director of Samaniego Law with offices in Madrid and Miami. The speakers included: Sara Koleilat-Aranjo, a partner at Al Tamimi & Co., in Dubai; Michael Mcilwrath, founder and CEO of MDisputes, an ADR consulting firm in Florence, Italy, and a former vice president of litigation at Baker Hughes Co.; and Jan O’Neill, a professional support lawyer at Herbert Smith Freehills in London.
Koleilat-Aranjo said that mediation has “established itself as a viable, typically cost-effective, non-contentious, means to resolve disputes.” She noted that “up until the advent of the Singapore Convention, there wasn’t really . . . a legal instrument, at an international scale which sort of provided a passport . . . of enforcement of mediated settlement agreements.”
Koleilat-Aranjo discussed differences between the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), best known as the New York Convention, and the Singapore Convention. She noted that the Singapore Convention dispenses with reciprocity—the New York Convention only provides enforcement of an arbitration award that has been made in a jurisdiction that also has adopted the treaty–and that “the Singapore Convention adopts a transcendental approach, meaning . . . unlike the New York Convention, there isn’t really typically a place of mediation that is defined” like how the earlier treaty addresses the seat of arbitration.
Koleilat-Aranjo referred to what she calls “a certificate of origin,” which is when the parties must prove that settlement resulting from mediation occurred in order to enforce the award. She noted that this presents the novel issue of how to prove that a mediation award was given, particular outside of an “institutional framework,” so that it can be enforced via the Convention.
There are currently 54 Convention signatories, and eight states that have ratified it–seven at the date of the discussion, and one added since the CPR International Conference.
Koleilat-Aranjo noted that two of the nations that have already ratified the treaty, Qatar and Saudi Arabia, are in the Middle East. She said that this reaffirmed the popularity of mediation in those countries, and that this is not surprising considering the cultural and religious influences and attitudes toward the process. She said that in Arabic, the mediator is called the “agent of peace,” and that mediation has been used in Arab nations for many types of different dispute settlements.
The panel discussed the reservations carve-out in Article 8 of the Convention, which provides that, when adopted by a ratifying state, “the Convention would not be applicable to settlement agreements to which its government or other public entities are a party.”
Saudi Arabia, Koleilat-Aranjo noted, has carved out a reservation per its Royal Decree 96 (April 9, 2020), which mirrors the convention carve out: It does not allow mediation to apply to the government, government officials, governmental agencies, or any person acting on behalf of those agencies. She explained that the Saudi economy is tied in with the government, so this is broad reservation, with many international transactions tying private overseas parties to government actors.
Mike Mcilwrath gave his perspective on why the Convention has not yet been ratified by European Union nations. He said that the EU was “hostile to the convention during the drafting stage. They did not support it.” He added that this is likely because of the “coordinating effort” of the EU as a unified front, making it more difficult for individual states to sign on separately.
Mcilwrath noted that the EU chose to go to court over concerns about the AstraZeneca Covid-19 vaccine, rather than mandating mediation, which is a sign of the EU’s trend of choosing not to mediate.
HSF’s Jan O’Neill had a differing view, and–echoing Mcilwrath’s description of Italy likely supporting the Convention on its own but for the current EU hesitancy–noted that the U.K. also “has been left to its own devices” since Brexit. She added that “the U.K. is of course a very mediation friendly jurisdiction, [with a] very long-standing sophisticated mediation infrastructure.”
As a result, she said that she believes that the U.K. will sign the Convention eventually, noting that “there is a sense on the ground . . . it feels like it will happen. They’re certainly not sensing any hostility.”
She said she that the U.K. is familiar with mediation and ADR, but that priorities are stuck on the most pressing issues–the pandemic and the Brexit economy.
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Panel moderator Javier Fernández-Samaniego has prepared an article analyzing the Singapore Convention developments and expanding on the panel discussion for CPR’s monthly newsletter, Alternatives to the High Cost of Litigation. His article is scheduled to appear in the December issue.
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The author, a second-year student at Brooklyn Law School, is a 2021 CPR Fall Intern.