Abstract
On 7 August 2019, the new convention opened for signature at a ceremony in Singapore and at the time of publishing has 51 signatories. This article explores the potential impact of the new Convention on the practice of international arbitration. It predicts that while international arbitration is currently experiencing some transformative trends from other sources in the international dispute resolution landscape, the growth of cross-border mediation anticipated as a result of the new enforcement regime is unlikely to result in reduced reliance on international arbitration as a primary means of dispute resolution for current users. Instead, the new Convention will expand the suite of services available to international dispute resolution users and providers and expand access to dispute resolution for micro, small and medium enterprises conducting cross-border and transnational commerce in the new enforcement regime.
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Notes
- 1.
International Arbitration Survey (2018), p. 9.
- 2.
- 3.
Lim (2017), p. 3.
- 4.
Lim (2017), pp. 3–4.
- 5.
Lim (2017), p. 7.
- 6.
Lim (2017), p. 8.
- 7.
Singapore Mediation Centre Online Dispute Resolution Platform (2019).
- 8.
Lim (2017), p. 11; see also Community Mediation Centres, 2019.
- 9.
Singapore Mediation Act 2017.
- 10.
Lim (2017), p. 18.
- 11.
The Protocol provides for arbitration to be commenced under the SIAC, immediately after which the Tribunal stays the proceedings for mediation to commence at the SIMC. If no resolution is reached, parties can return to arbitration at the SIAC. If resolution is achieved in mediation, parties may request the SIAC to issue a consent award. For more, see the Singapore International Mediation Centre website.
- 12.
Lim (2017), p. 20.
- 13.
The SIMI Credentialing Scheme aims to recognise mediator experience and credentials through a tiered system ultimately leading to international certification under the International Mediation Institute.
- 14.
Lim (2017), pp. 21–22.
- 15.
Schnabel (2018), p. 5.
- 16.
Seow (2018).
- 17.
Schnabel (2018), p. 8.
- 18.
UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958).
- 19.
Chua (2019), p. 1.
- 20.
Schnabel (2018), pp. 2–3.
- 21.
International Arbitration Survey (2018), p. 5.
- 22.
International Arbitration Survey (2018), p. 5.
- 23.
International Arbitration Survey (2018), p. 7.
- 24.
Chua (2019).
- 25.
International Arbitration Survey (2018), p. 7.
- 26.
Esso Australia Resources Ltd. and others v. The Honourable Sidney James Plowman, The Minister for Energy and Minerals and others (1995) 193 CLR 10.
- 27.
McDougall et al. (2018), p. 2.
- 28.
McDougall et al. (2018), pp. 4–5.
- 29.
Bassi and Newman (2016).
- 30.
UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration.
- 31.
UN Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014).
- 32.
McDougall et al. (2018), pp. 5–6.
- 33.
- 34.
See for example the ICC Arbitration Tribunals and the LCIA Reports.
- 35.
International Chamber of Commerce Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (2019).
- 36.
See generally Tung and Lin (2018).
- 37.
Cosgrove and Hosking (2018).
- 38.
McDougall et al. (2018), p. 7.
- 39.
- 40.
McDougall et al. (2018), p. 7.
- 41.
IBA Guidelines on Conflicts of Interest in International Arbitration (2004).
- 42.
Report of the ICCA-Queen Mary Task Force (2018).
- 43.
See Report of the ICCA-Queen Mary Task Force (2018), p. 188; IBA Guidelines on Conflicts of Interest in International Arbitration (2004), Part II.
- 44.
Sun and Leng (2018).
- 45.
Gek (2018).
- 46.
Choong and Rosenberg (2018), pp. 11–12.
- 47.
Choong and Rosenberg (2018), pp. 11–12.
- 48.
Choong and Rosenberg (2018), pp. 11–12.
- 49.
See World Bank Group Belt and Road Initiative (2018) for an overview.
- 50.
Choong and Rosenberg (2018), p. 12.
- 51.
Choong and Rosenberg (2018), p. 11.
- 52.
Honorable Justice John Middleton (2018).
- 53.
Loh (2015), pp. 16–17.
- 54.
Bell (2018), p. 194.
- 55.
Hague Conference on Private International Law Convention on Choice of Court Agreements (2005).
- 56.
Bell (2018), p. 195.
- 57.
Schnabel (2018), p. 2.
- 58.
- 59.
Schnabel (2018), pp. 2–3.
- 60.
Schnabel (2018), p. 4.
- 61.
Schnabel (2018), p. 3.
- 62.
- 63.
Singapore Convention, Article 1(1).
- 64.
Singapore Convention, Article 1(2); Chua (2019), p. 3.
- 65.
Singapore Convention, Article 1(3).
- 66.
Singapore Convention, Article 2(3).
- 67.
Schnabel (2018), pp. 15–16.
- 68.
Schnabel (2018), pp. 15–16.
- 69.
Schnabel (2018), p. 23.
- 70.
Schnabel (2018), p. 23.
- 71.
Schnabel (2018), p. 23.
- 72.
Schnabel (2018), p. 20.
- 73.
Schnabel (2018), pp. 21–23.
- 74.
Singapore Convention, Article 1(1).
- 75.
Singapore Convention, Article 1(1) and Article 4(1)(a); Schnabel (2018), 29.
- 76.
Singapore Convention, Art. 4(2).
- 77.
Singapore Convention, Art. 4(1).
- 78.
Singapore Convention, Art. 4(1)(b).
- 79.
Schnabel (2018), pp. 33–34.
- 80.
Singapore Convention, Art. 8(1)(a).
- 81.
Singapore Convention, Art. 8(1)(b).
- 82.
There was much debate in the UNCITRAL WGII meetings about the functions of recognition and enforcement. For a detailed analysis and description of the compromise leading to the Conventions functional approach, see Schnabel (2018), pp. 34–39.
- 83.
SCM Art. 3(1): ‘Each Party to the Convention shall enforce a settlement agreement in accordance with its rules of procedure and under the conditions laid down in this Convention.’
- 84.
SCM Art. 3(2): ‘If a dispute arises concerning a matter that a party claims was already resolved by a settlement agreement, a Party to the Convention shall allow the party to invoke the settlement agreement in accordance with its rules of procedure and under the conditions laid down in this Convention, in order to prove that the matter has already been resolved.’
- 85.
Schnabel (2018), p. 40.
- 86.
Schnabel (2018), p. 41.
- 87.
Singapore Convention, Art. 5.
- 88.
New York Convention, Article V.
- 89.
Schnabel (2018), p. 43.
- 90.
Schnabel (2018), p. 43.
- 91.
Singapore Convention Art. 5(1)(a). This may include elements such as one party was a minor at the time the settlement was executed, was intoxicated, or was not in his or her right mind.
- 92.
Singapore Convention Art. 5(1)(b)(i). This may include instances where there has been fraud or misrepresentation.
- 93.
Singapore Convention Art. 5(1)(b)(ii). This relief may be granted only where the settlement agreement is not final or binding ‘according to its terms,’ meaning by the language of the agreement itself (thus presenting a four-corner rule and barring reliance on extrinsic evidence to meet the burden of proof).
- 94.
Singapore Convention Art. 5(1)(b)(iii).
- 95.
Singapore Convention Art. 5(1)(c)(i).
- 96.
Singapore Convention Art. 5(1)(c)(ii). This would only be met if the settlement agreement is so confusing that the competent authority could not confidently issue the relief sought if it found that the requesting party was entitled to relief.
- 97.
Singapore Convention Art. 5(1)(d). This would apply if the relief sought directly contradicts the intentions stated by the parties in the settlement agreement. Therefore, if a settlement agreement restricts the parties’ abilities to seek relief, the competent authority must give effect to those intentions. This ground for refusal is also broad enough to allow parties to opt out of the Convention’s applicability to their settlement altogether.
- 98.
Singapore Convention Art. 5(1)(e) and (f). This would only apply in cases where applicable existing codes of conduct on mediator practices proscribe certain behaviors, those codes of conduct have been breached, and without such breach the party seeking relief would not have entered into the settlement agreement; or where the failure to disclose circumstances raising justifiable doubts as to the mediator’s independence or impartiality was so material that had the disclosure been made the party seeing relief never would have entered into the settlement agreement.
- 99.
Singapore Convention Art. 5(2)(a).
- 100.
Singapore Convention Art. 5(2)(b).
- 101.
International Arbitration Survey (2018), p. 5. Ninety-seven per cent of respondents indicate that international arbitration is their preferred method of dispute resolution.
- 102.
International Arbitration Survey (2018), p. 7.
- 103.
International Arbitration Survey (2018), p. 8.
- 104.
Global Pound Conference Series (2017), p. 13.
- 105.
Global Pound Conference Series (2017), p. 13.
- 106.
International Arbitration Survey (2018), p. 5.
- 107.
Singapore Convention Art. 1(3).
- 108.
The OECD defines SMEs as firms employing up to 249 people: micro enterprises are defined as having between 1 and 9 employees, small enterprises are defined as having between 10 and 49 employees, and medium anywhere between 50 and 249.
- 109.
OECD (2017), p. 6.
- 110.
- 111.
See for example Fairway Resolution (2019), Portable (2019), and SettleTech (2019).
- 112.
See generally Roberge and Fraser (2018).
- 113.
Chua (2019), p. 9.
- 114.
Chua (2019), p. 9.
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Checkley, J.C. (2020). Cross-Border Enforcement of Mediated Settlement Agreements and Potential Impact on the Practice of International Arbitration. In: Meškić, Z., Kunda, I., Popović, D., Omerović, E. (eds) Balkan Yearbook of European and International Law 2019. Balkan Yearbook of European and International Law, vol 2019. Springer, Cham. https://doi.org/10.1007/16247_2019_2
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