The Harmonization Of The Singapore Convention With China's Legal System Of Mediation

In the area of international commercial mediation,the most significant problem is that the mediated settlement agreements cannot be effectively enforced around different jurisdictions.Although there are several cross-border enforcement mechanisms on the mediated settlement agreements,these mechanisms still do not break through the legal barriers designed by various national mediation laws and do not establish a globally uniformed enforcement system.Compared with arbitration,mediation has its own advantages in terms of procedural flexibility,saving time and cost,while due to the insufficiency of the cross-border enforcement system of mediated settlement agreements,mediation has never reached the level of importance enjoyed by arbitration in resolving international commercial disputes.In order to address the problem of cross-border enforcement of mediated settlement agreements and promote the role of mediation in resolving international commercial disputes,the United Nations General Assembly adopted the Singapore Convention drafted by the United Nations Commission on International Trade Law in 2018.The Singapore Convention,deemed as the "New York Convention" in the field of international commercial mediation,perfectly meet the fervent expectation of the international commercial community.Currently,more than 40 countries,including China,had signed the Singapore ConventionHowever,due to the variation of the mediation systems among different countries,the Singapore Convention is essentially the result of a compromise among the countries participating in the drafting process of the Convention,therefore the Singapore Convention inevitably has certain shortcomings,against this background,it is worth to consider whether the Parties to the Convention need to adjust their existing mediation legal systems and how to adjust them according to the Singapore Convention.In addition,mediation in China has been through hundereds of years of development,deeply rooted in China's traditional culture known as "harmony",and constantly affect the development of China's mediation legal system,whether the Singapore Convention can be integrated with China's unique mediation legal system is the focus of this thesis,this thesis aims to study the characteristics of the cross-border enforcement system under the Singapore Convention and the existing legal system of mediation in China,and summarize the conflicts of these two systems in order to make suggestions on how to harmonize China's mediation legal system following the Singapore ConventionThis thesis is divided into three chapters,each of which is arranged as follows:Chapter ?,"The Background of the Development of the Singapore Convention",this chapter aims to highlight the important role of cross-border enforcement mechanisms for the development of international commercial mediation:mediation has considerable advantages over arbitration in the settlement of international commercial disputes,but mediation has never reached the same level as arbitration due to the lack of a uniform cross-border enforcement.This chapter first summarizes the development history and current situation of mediation in the international commercial dispute resolution system,then analyzes the advantages of mediation compared to arbitration,and finally summarizes the existing different ways of cross-border enforcement of mediation settlement agreements and their respect shortcomings.Chapter ?,"Basic Content and Analysis of the Singapore Convention",which aims to study the detailed enforcement mechanism under the Singapore Convention This chapter first summarizes the development history and the advantages of mediation compared to arbitration,then it summarizes the contents of the Singapore Convention from the definition of "international commercial mediation settlement agreement",the formal requirements of the international commercial mediation settlement agreement,the grounds for refusing to grant enforcement,and the rights and obligations of the Contracting States,and analyzes their advantages and disadvantages.In short,the requirements for the enforcement of international commercial mediation settlement agreements are lenient,which tends to result in the abuse of the Singapore Convention;the meaning of some of the provisions of the Singapore Convention is vague,which may lead to inconsistency in the application of the Singapore Convention among the Contracting States;the Convention does not provide specific provisions on certain issues and need contracting States further clarify through domestic law.Chapter ?,"China's Mediation Legal System and the Singapore Convention",this chapter aims to study the characteristics of China's mediation legal system,as well as its conflict with the Singapore Convention.First of all,this chapter analyzes the existing and various forms of mediation in China,and shows the position of commercial mediation in China's mediation system through the retrieved data commercial mediation in China has always been in the legal framework of people's mediation,it is difficult to obtain independent development.Secondly,this chapter analyzes the characteristics of China's mediation system and the characteristics of international commercial mediation system from the cultural level,China's commercial mediators should build their insights of the international commercial mediation system,rather than limited to the promotion of the oriental mediation Thirdly,this chapter analyzes the enforcement mechanism under the Singapore Convention and China's judicial confirmation procedure,these two procedures might be overlapped when it comes to application,China should make certain adjustments Finally,this chapter analyzes China's existing legal norms from the mediator's guidelines,the legal effects of mediation agreements,the legal effects of mediation settlement agreements and the abuse of mediation,and the shortcomings and their potential conflicts with the Singapore Convention are summarized Chapter ?,"The Harmonization between the Singapore Convention and China's Commercial Mediation Legal System",this chapter aims to suggest an independent legal system of commercial mediation in China,which is compatible with the Singapore Convention.First,commercial mediation should be liberated from the framework of the People's Mediation Law and enjoy an independent development status,specifically,China should establish a commercial mediation law.Secondly,while establishing the basic principles of commercial mediation,the commercial mediation law should also make up for the shortcomings of the Singapore Convention,specify the legal effect of the mediation agreement and the legal effect of the mediation settlement agreement.In the enforcement of the mediation settlement agreement,the division of "domestic" and "international" mediation settlement agreements can be eliminated and the provisions of the Singapore Convention can be uniformly applied.Thirdly,commercial mediation institutions should be encouraged to play their own rules and enact their own soft law related to the code of conduct of mediators.Finally,China should strengthen the regulation of the abuse of mediation from the criminal and civil aspects.