Research On The United Nations Convention On International Settlement Agreements Resulting From Mediatio

The United Nations Convention on International Settlement Agreements Resulting from Mediation(hereinafter referred to as the Singapore Convention)was opened for signature by States on 1 August 2019,and by the end of March 2020,52 countries had signed the Convention.With Qatar ratified the Convention,it will enter into force on 12 September 2020.Although the efficiency and convenience of international commercial mediation have always been favored by the parties,the lack of enforcement mechanism has led to the limited status in international commercial disputes,and often appears as the subsidiary links of arbitration and litigation.There is no doubt that the enforcement mechanism of the international commercial settlement agreement stipulated in the Singapore Convention gives the international commercial settlement agreement and international commercial arbitration the same enforcement power,guarantees the integrity of the international commercial mediation mechanism,and thus establishes the international commercial mediation mechanism,thereby made the international commercial mediation gain the status of an independent commercial dispute settlement mechanism.This paper is divided into five chapters except the introduction.Chapter Ⅰ is the overview of the Singapore Convention.Mediation has the unique advantages of party-autonomy,high effectiveness,low risk and non-confrontation,but its development space is limited by the questionable validity and lack of enforcement of mediation agreements in majority of jurisdiction.The Singapore Convention,launched in 2014 by UNCITRAL and negotiated over four years,affirmed the value and superiority of in the field of settlement of commercial disputes,established international commercial as an independent dispute settlement mechanism,and expressed the international community’s vision for the proper settlement of international commercial disputes and the maintenance and development of harmonious economic relations between countries by promoting the improvement and development of the international commercial mediation system and the international commercial dispute settlement mechanism.The Singapore Convention establishes the principle of direct enforcement,the principle of non-bis in idem,and sets out its scope of application,the two main relief procedures and the grounds for refusing relief.At its core are the two relief procedures provided for in article 3 of the Singapore Mediation Convention: enforcement and non-enforcement procedures,which play the role of "sword" and "shield ",respectively,greatly simplifying and facilitating the procedures for the enforcement of international commercial mediation agreements and will encourage and support the application and development of international commercial mediation.Chapter Ⅱ is the application of the Singapore Convention.The Singapore Convention applies to international settlement agreements based on international commercial mediation.The international commercial settlement agreement is a kind of written arrangement to settle the dispute between the parties,which is led by the parties under the assistance of the mediator,and is a special contractual relationship between the parties.It must have the characteristics of "international" and "commercial ".In order to expand the acceptance and international applicability of the Singapore Convention,the Singapore Convention established a commercial reservation clause and an opt-in reservation clause.A commercial reservation provides that a party may retain a party seeking relief for the application of this Convention in respect of a Government settlement agreement,which,if retained by the parties,would mean that an investment dispute settlement agreement between the investor and the Government would not be able to obtain relief in the past.Some States may make reservations on the basis of their appreciation of sovereignty and the doctrine of State immunity.The latter is a new reservation clause set up in the convention,which is the concentrated embodiment of the dominant principle of the parties to the mediation,that is,the parties can lead the validity of the settlement agreement,the way of enforcement,and the choice of the enforcement mechanism.Chapter Ⅲ is the enforcement of International Commercial Settlement Agreement.The settlement agreement resulting from mediation is a special contractual relationship between the parties,which has both the validity of confirmation and the creation,which means that the content of the international commercial settlement agreement can have greater flexibility.As far as the enforcement of international commercial settlement agreements is concerned,most of the national legislation and judicial practice are divided into four modes: enforcing after confirmation by the court,transfer into consent arbitration,enforce as contracts and enforcing directly.Article 3 of the Singapore Convention provides for the principle of direct enforcement,which constitutes the source of direct effect of the international commercial settlement agreement,gives the international commercial settlement agreement enforcement power,and is a subversion of the implementation mode of the international commercial settlement agreement.The Singapore Convention imposes an obligation on the parties to directly enforce the international commercial settlement agreement,simplifies the procedure for the international commercial settlement agreement and requires the parties to proceed without delay.In the case of parallel proceedings where other claims have been made with respect to the settlement agreement,the competent authority may decide,as the case may be,whether to suspend the enforcement and,at the end of the parallel proceedings,resume the proceedings.Chapter Ⅳ is the reason for refusing to seek relief.The Singapore Convention provides,in a fully enumerated manner,the grounds on which a party may refuse to enforce a settlement agreement,divided into four categories: those relating to the parties,those relating to the settlement agreement itself,those relating to the mediation process and those relating to the public policy of the parties.The four categories of grounds for refusal were set against the grounds for refusal to recognize and enforce foreign arbitral awards under the New York Convention,and the relevant practice of the New York Convention therefore had important reference value for the application of the Singapore Convention.At the same time,the grounds for refusal of relief under the Singapore Convention also reflect the special nature of an international commercial settlement agreement,such as the non-binding nature of a settlement agreement based on the agreement of the parties,and the fact that serious violations of mediation procedures and the conciliator’s code must affect the subjective judgement of whether the parties have reached the international commercial settlement agreement,i.e.the emphasis on the party-autonomy principle.Chapter Ⅴ Study on China’s Ratification of the Singapore Convention.At present,China has signed the Singapore Convention,but has not yet ratified it,so China has not yet acceded to the Singapore Convention.It is necessary for China to ratify the Singapore Convention.One is that the parties have a realistic demand for the settlement of international commercial disputes through commercial mediation,the other is that accession to the Singapore Convention is conducive to promoting the development and improvement of China’s commercial mediation system,optimizing China’s domestic business environment under the rule of law,and making foreign economic and trade participants more attractive.Third,promote the development of diversified dispute settlement mechanism.However,China’s ratification of the Singapore Convention at this stage will have a series of negative effects,mainly because China has not yet done a good job of matching measures to the Singapore Convention.China does not have uniform commercial mediation legislation,and the direct implementation procedure of the Singapore Convention is incompatible with the existing system of confirmation of mediation agreements in China.If not modified,it will produce two sets of enforcement mechanisms in China,leading to confusion and conflict in practice.The application of mediation would be encouraged by the Singapore Convention’s recognition of the status of mediation and the simplification of procedures for implementing mediation agreements.There may be a large number of settlement agreement requests to seek relief in our country,resulting in the court overburdened.The problem of false mediation will be more difficult to identify than false litigation and false arbitration,which will increase the burden on the court.China’s key economic and trade partners have not yet acceded to the Singapore Convention and are likely to remain on the sidelines for years or more.China’s ratification of the Singapore Convention means that,for a longer period of time,it may have to undertake unilaterally the obligation to implement international commercial settlement agreements from other countries.Therefore,the timing of China’s ratification of the Singapore Convention needs to be carefully studied,and these issues should be thoroughly and carefully examined before ratification of the Singapore Convention,and the competent authorities and supporting systems for China’s application of the Singapore Convention should be established,and pass the formulation of reservations,measures such as improving China’s international commercial mediation system and actively responding to the challenges that may arise from the Singapore Convention,thereby achieve the soft landing of the Singapore Convention.