Stephen Singh is a Senior Partner at Johnson, Camacho & Singh, Attorneys-at-Law.  He is member of the Board of  ADR Services Limited and The Dispute Resolution Foundation (DRF) and is rostered as a  Mediator and Arbitrator with The DRF.  Stephen was a founding member of the Dispute Resolution Centre.  He practices Corporate/Commercial Law in specialised sectors and is admitted to practice throughout the English speaking Caribbean countries.  Stephen is a Fellow, Chartered Institute of Arbitrators.

INTRODUCTION

September 12, 2020 heralded a major milestone in the landscape of cross border mediation with the coming into effect of the United Nations Convention on International Settlement Agreements Resulting from Mediation (“the Singapore Convention”).

The Convention “establishes a framework” for the enforcement of International Settlement Agreements of cross border disputes against the back-drop of great promise of recognition since it included signatories since the USA, China and India.

Prior to the Singapore Convention, cross border enforcement of a settlement agreement from mediation was unpredictable as one party would have to enforce the settlement agreement as a contract. To ensure compliance, a party would have had to commence an action using the applicable dispute resolution clause i.e. either litigation in a specified jurisdiction or arbitration.

Simple enough, when all parties are in the same jurisdiction but although most settlement agreements arising out of international mediation are generally adhered to, nonetheless that challenge has always been enforcement against extra-jurisdictional assets.

THE RATIONALE

Recognizing the value of mediation to international trade, the prime objective of the Convention is to provide direct enforcement of cross border settlement agreements “acceptable to States with different legal social and economic systems”.

SCOPE

The Convention applies to an agreement resulting from mediation to resolve a commercial dispute which at the time is international. The settlement agreement must:

• be written
• result from mediation
• be between two or more parties with places of business in different States which have acceded to or accepted the Convention.

Settlement agreements arising out of transactions relating to “personal”, “family” or “household reasons”, “family inheritance” or “employment law” are specifically excluded. The Convention also does not apply to settlement agreement (i) that have been approved by the Court; or (ii) are enforceable as a judgment of the Court.

REQUIREMENTS FOR ENFORCEMENT

In order to enforce a settlement agreement, a party must provide the competent authority where relief is sought:

• the settlement agreement signed by both parties;
• evidence that the settlement agreement resulted from mediation such as:
• the settlement agreement with the mediator’s signature;
• a document from the mediator stating that in mediation was carried out;
• an attestation by the administering authority; or
• in the absence of (i) – (ii) above, any other evidence acceptable to the competent authority.

Already, concerns are being expressed as to Article 4(1) (b) requirement since in some jurisdictions, mediators will not sign the settlement agreement in order to prevent being subpoenaed as a witness. Moreover, due to obligations of strict confidence, some mediators will not even comment on the fact that mediation had occurred. It may be that clauses providing for a waiver, should enforcement under the Convention may now have to be provided.

GROUNDS FOR REFUSAL TO ENFORCE

It is anticipated that Article 5(e) is likely to be more problematic in practice. Apart from those grounds associated with refusal to enforce arbitral awards, namely:

• incapacity
• not being final
• non-disclosure
• having been already performed or lack of clarity; and
• public policy

Article 5(e) ground is of note:

“5(e)   There was a serious breach by the mediator of standards applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement.”

Doubts must arise as to what standards of conduct apply, were these expressly incorporated into the agreement to mediate or were these implied. Even more controversial is whether the mediator will be call to testify. Bearing in mind the fact that case law is replete with authorities on misconduct of arbitrators, it would be a travesty if this process, which is based on consensus, becomes engulfed in litigation.

Despite the concerns highlighted above, these ought not to detract from the salutary objectives of the drafter and the note that the Convention can play in promoting international commercial mediation.

The Singapore Convention like The Hague Convention on The Recognition and Enforcement of Foreign Judgments (the Judgements Convention) are all part of the movement for greater transnational efficiency in the enforcement of commercial decisions or awards. One cannot help but note that the New South Wales Supreme Court recently recognized a Chinese commercial court judgment in Bao v Qu (No 2).

Closer to home, the Eastern Caribbean Supreme Court is engaged in consultations on the necessity for leave for permission to serve claims out of the jurisdiction. These are all welcome initiatives to breaking down the barrier to effective cross border dispute resolution.

Finally, in Trinidad and Tobago, many contracts both in the energy sector and involving large infrastructural works are international in nature and have multi step dispute resolution processes. In keeping with the Government’s objective to boost the ease of doing business, it is hoped that the accession or ratification of the Singapore Convention will come in the near future.