SIDRA and SMU Law Academy were proud to host a joint seminar introducing the UN Convention on International Settlement Agreement resulting from Mediation, to be called the Singapore Convention, on 27 November at the David Marshall Moot Court in SMU School of Law. The seminar featured speakers Professor Nadja Alexander, Professor Dorcas Quek, and Professor Khory McCormick.
The seminar opened with a presentation from Professor Alexander on the origin and main features of the Convention itself. Professor Alexander, who attended the UNCITRAL Working Group II meetings as a member of the Singapore delegation (led by Ms Sharon Ong of the Ministry of Law) highlighted Singapore’s leadership at the negotiations where the Convention was formulated. She also led the seminar attendants through the structure and text of the Convention. Professor Alexander pointed out the areas where the Convention is truly innovative, such as its recognition of online dispute resolution, e-communications, and e-signatures as processes and methods of demonstrating intent and agreement. She also discussed the grounds for refusal of enforcement under the Convention language, some of which involve enquiry into mediator behavior such as ‘serious breach’ of applicable standards of conduct, and failure to disclose circumstances regarding the mediator’s impartiality or independence. Finally, Professor Alexander provided a brief discussion on being ‘convention-ready’: in other words, how states can approach adoption and implementation of the Convention when it is opened for signature and ratification in 2019.
From there, Professor Quek led the seminar participants into a broader discussion about the interaction between the existing Singapore mediation framework and the language of the Convention. She provided an overview of enforcement of settlement agreements in Singapore through the common law approach, and then through the Singapore Mediation Act, which came into force last year. Offering a direct side-by-side comparison of the Mediation Act with the new UN Convention, Professor Quek studied the differences in scope and exclusions, and then looked at the common ground between the two instruments for non-enforcement. In particular, Professor Quek offered an examination of the public policy grounds for non-enforcement in the Convention and under the Mediation Act, highlighting that tension will exist between the principle of party autonomy within mediation, and the court’s oversight into public policy matters. Professor Quek closed her presentation with a discussion about the implications of the new Convention for the practice community in Singapore.
Professor McCormick then took the seminar attendees to the ‘birds-eye view’ of the Convention as it sits within the international legal framework for dispute resolution. He provided a statistical context for the discussion by looking at the prevalence – and shortcomings – of the current international arbitration framework and enforcement regime. Professor McCormick pointed out that the growth of mediation in cross-border disputes is directly responsive to what are considered in survey findings to be the worst characteristics of arbitration. And, he noted that in providing an alternative to arbitration, Mediation Convention will satisfy the ‘most valuable’ characteristics of arbitration: enforceability of awards, flexibility, confidentiality and privacy, and other key considerations. The seminar concluded with a stimulating Q&A session and discussion between the speakers and the seminar participants.
SIDRA looks forward to further opportunities for promoting discussion about the upcoming Singapore Convention, and to continued joint seminars with its partner, SMU Law Academy.