Research On The Enforcement Of International Settlement Agreements Resulting From Mediation

In the multi-level commercial dispute resolution methods such as international commercial mediation,international commercial arbitration,and international civil litigation,mediation has the characteristics of maintaining commercial relations,being efficient and convenient,and realizing autonomy of will to the greatest extent,which can meet the needs of the parties.However,compared with the international unified cross-border rules in the form of "conventions" for arbitration and litigation,crossborder mediation lacks international conventions.But this is only the surface of the problem.The root of the contradiction is that,on the one hand,the mediation procedure is arbitrary,theoretically limited,and has a weak position.On the other hand,the settlement agreement lacks an enforcement mechanism and can only rely on arbitration awards or judgments.The "Singapore Convention" breaks the barriers of the system.It tries to break through theoretical limitations and eliminate practical constraints by establishing new rules.Together with the "New York Convention" and "Choice of Court Agreement Convention",it constitutes a global circulation system for litigation,arbitration and mediation.From a domestic point of view,the provisions on the enforcement of settlement agreements are concentrated in the judicial confirmation system of mediation,but this system cannot meet the requirements for cross-border enforcement.Judging from the existing research,before the promulgation of the "Singapore Convention",domestic scholars seldom discussed it exclusively.Since the introduction of the "Singapore Convention",the number of studies has increased,and the research either has room for further in-depth discussion,or is not comprehensive enough.Therefore,this study attempts to study and judge the latest development trend of the cross-border enforcement system of international settlement agreements,combined with the theoretical achievements of predecessors,to deeply and completely discuss the core legal issues involved in the cross-border enforcement of settlement agreements.In summary,this paper focuses on the issue of cross-border enforcement and studies five sub-issues around two logical sequences.The first layer of logic sequence is from the starting point to the ending point.This paper analyzes the problems of the existing mechanism and the possible advantages of the future mechanism,and clarifies the starting point of the problem through the analysis of the necessity and function.After analyzing the starting point,the article returns to the end point,that is,how the system should be constructed.The second logical sequence of this paper is the sequence from legal technology to national interests.From the perspective of legal technology,it is basically based on the three perspectives of substantive law,procedural law,and conflict of laws.In addition to the construction of technical rules,China’s attitude is also faced with the choice of private interests and the protection of national interests.It is necessary to pay attention to the Convention from a macro perspective,which is also one of the focuses of this study.The main contents and related research results of this study are as follows:First,this paper systematically studies the reasons and value of cross-border enforcement of settlement agreements.Direct enforcement can break through theoretical limitations,practical constraints and institutional obstacles.Primarily,the institutional obstacles of the direct enforcement mechanism can be overcome.Mediation is more in line with the needs of businessmen,but there is no international treaty to regulate it,and the Singapore convention solves this problem;Then,the direct enforcement mechanism strengthens the role of mediation procedures.This process includes internal amendment and external amendment.Internal amendment refers to the parties’ clarifying the certainty of mediation terms,while external amendment refers to the establishment of opt out clauses and constructive mediation procedures;Finally,there are many applicable difficulties in the dependent enforcement mechanism,and the direct enforcement mechanism will solve this problem.Evaluate the Singapore convention according to the model in the cross-border mediation rating system.The Convention will focus on direct enforcement and promote the overall development of cross-border mediation.Second,this paper studies the acceptance scope and procedure setting of the case.The definition of mediation includes three elements:the existence of disputes,the intention of friendly settlement and the third party,which show an expanding trend;The broadunderstanding of commercial definition has been widely recognized,and the controversial point is whether investment mediation can be incorporated into the framework of the Convention.The Convention does not exclude the application of ISDS mechanism.It gives countries the possibility of excluding the application in the form of reservations,which depends on the attitude of countries towards investmentmediation;The first mock exam of procedure is how to link up with judicial confirmation procedure in China.Through consideration of the value of procedure,nature of agreement and consequent consequences,the author thinks that the system of adopting the same model in domestic and international reconciliation agreement is not feasible,and the dual track system is of practical significance.After determining the basic procedural issues,it is necessary to clarify the implementation basis,procedural nature and other issues,and establish the principle of written trial and the combination of written trial and court hearing.Third,this paper studies the foreign factors and legal conflicts in direct execution.After excluding the foreign settlement agreement and determining the concept of international.settlement agreement,the Convention establishes a relatively loose connection standard dominated by place of business.Compared with this standard,there are some problems in China’s current international judicial recognition,such as inconsistent object,lack of neutral position,vague concept of place of business and so on.We should start from the three elements of judging foreign-related civil legal relations,consider the mixed standard of substantive connection factors and controversial factors,and adhere to the objective standard and abandon the subjective standard.For the legal application of and interpretation agreement,the Convention embodies flexibility.The basic principle should be based on the theory of division and refer to the legal application of contract.The view of segmentation theory will lead to further uncertainty in the application of law,which needs to be supplemented by the"effective principle" to unify the results of the application of law as much as possible.Fourth,this paper studies the reasons for refusing the enforcement of the Convention.According to the order of the Convention,this paper analyzes the defenses to the contract,the misconduct of the mediator and the public policy.The capacity of the parties,the contractual effect of the settlement agreement,the obligations stipulated in the settlement agreement,and the refusal to implement the applicable provisions may have the effect of refusing to implement the settlement agreement;For the misconduct of mediators,the Convention has dual constraints.On the one hand,it shows an open attitude towards the types of misconduct and does not limit the provisions of domestic law,but on the other hand,it limits the behavior to a certain extent through modifiers such as "serious violation" and "significant influence".Due to the conceptual differences between the obligation of neutrality and the obligation of impartiality,the Convention pays more attention to the disclosure obligation of mediators.For public policy,we should continue the existing attitude of setting a higher threshold,treat it with caution and should not be used easily.Fifthly,the study puts forward the improvement scheme of China’s cross-border mediation and direct enforcement.China’s attitude depends on whether the system is in line with the interests of China’s parties and the country.We need to further consider the timing and opportunity of China’s ratification of the Convention.At the same time,China needs to make corresponding responses at the legislative and judicial levels.From the perspective of legislation,we need to ensure that there are rules and systems in domestic Jaw that are consistent with the Singapore convention.From the judicial point of view,we can take advantage of China’s practical requirements for the reform of the free trade zone and the advantages of adjusting the applicable law to try before China ratifies the Convention.In a word,the research on the cross-border enforcement of international settlement agreements should be based on the international unified substantive law,and should not be separated from the basic pattern of China’s existing mediation system.We need to take into account the limited development of China’s foreign-related mediation legal system at this stage and strive to bridge it.However,the core provisions should reflect the development direction of the international mediation legal system and be consistent with the concept of the Singapore convention.The legislative drafting should be open and avoid conservatism,so as to reserve enough space for the establishment and development of the direct enforcement system in the future.