On Legal Issues Of Cross-border Enforcement Of International Commercial Settlement Agreement

Mediation is currently more and more widely used and accepted in the international commercial dispute resolution with its remarkable superiority;however,the lack of an effective cross-border enforcement mechanism of the international commercial settlement agreement has become a main obstacle for further promotion of the use of commercial mediation and a research emphasis of both theory and practice of international commercial dispute resolution area.By using statistic analysis and induction and deduction method,starting from the summarizing of the current legislative system relevant to the enforcement of the settlement agreement resulting from mediation,the Article concludes the enforcement mechanism of the settlement agreement into three patterns,analyzes each of its potential to be applied as way to enforce the international commercial settlement agreements cross border and proposes to conclude a multilateral convention to unify the cross-border enforcement of the international commercial settlement agreement.In Chapter one,the Article makes separate discussion over both international and domestic legislative system relevant to the enforcement of the settlement agreement resulting from mediation.As leading international legislative documents,neither the UNCITRAL Modal Law of International Commercial Conciliation nor the EU Directive 2008/52/EC on Certain Aspects of Mediation in Civil and Commercial Mattes has given out a unified and effective mechanism;and from the perspective of the legislative practice among countries,the enforcement of the commercial settlement differs significantly and little country has specifically paid attention to the cross-border enforcement of settlement agreement.In Chapter two,the Article summarizes the enforcement of the international commercial settlement agreement into the following three patterns:enforced as common contract by pursuant to the Contract Law principles;enforced with the equal effect to court judgment or after diverting into Notary document;enforced as consented arbitral award under New York Convention.The crosser-border enforcement through the former two patterns will be limited within a small scope,and the application of the New York Convention to a consent award resulting originally from mediation has a number of limitations.In Chapter three,the Article suggests a multilateral convention on the cross-border enforcement of the international commercial settlement agreement,which shall be drafted on the characters of commercial mediation and with reference to the New York Convention and establish a directive enforcement mechanism.The main contents of the proposed convention shall include:application scope;application process;reasons for refusal of enforcement;protection for the mediation confidentiality principle in the enforcement process,the latter two among which constitute the core issues of the convention.