On 25 February 2020, Singapore Senior Minister of State Edwin Tong Chun Fai along with Ambassador Satyendra Prasad of Fiji became the first two countries to deposit their instrument to ratify the Singapore Convention (also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation) which provides for the direct and expedited enforcement of international settlement agreements resulting from mediation. Access our previous article on the Singapore Convention.
The Singapore Convention on Mediation Bill (Mediation Bill) was passed by the Singapore Parliament on 4 February 2020 in less than one month after it was tabled for first reading on 6 January 2020.
The Mediation Bill provides that parties can apply to the Singapore High Court to record an international mediated settlement agreement as an order of court for the purpose of enforcing the agreement in Singapore or invoking the agreement in any court proceedings in Singapore as a defence to a claim that has already been resolved by the agreement.
In order for the international agreement to be recorded as an order of the court, the enforcing party will need to submit the international settlement agreement (or a certified copy) together with supporting evidence that the international settlement agreement resulted from a mediation such as :
- The signature on the international settlement agreement of the mediator conducting the mediation;
- A document signed by the mediator conducting the mediation indicating that the mediation was carried out;
- An attestation by the institution that administered the mediation; or
- In the absence of sub-paragraph (i), (ii) or (iii), any other evidence acceptable to the court before which the application is made.
The grounds for refusing application include the following:
- If a party to the international settlement agreement was under some incapacity;
- The international settlement agreement is null and void or incapable of being performed under the applicable law, is not binding or is not final according to its terms or has been subsequently modified;
- The obligations in the international settlement agreement have been performed or are not clear or comprehensible;
- The application is contrary to the terms of the international settlement agreement;
- There was a serious breach by the mediator who conducted the mediation that resulted in the international settlement agreement of the standards applicable to the mediator, or the mediation, without which the parties would not have entered into the international settlement agreement;
- There was a failure by the mediator to disclose circumstances that raise justifiable doubts as to the mediator’s impartiality or independence which had a material impact or undue influence on a party and without which the party would not have entered into the international settlement agreement;
- If the application would be contrary to public policy; or
- If the subject matter of the dispute purported to be settled by the international settlement agreement is not capable of settlement by mediation under the law in force in Singapore.
In accordance with Article 14(1), the Singapore Convention shall enter into force six months after deposit of the third instrument of ratification, acceptance, approval or accession. The Mediation Bill will come into operation on a date further appointed after the Singapore Convention enter into force and it will impact on the way an international settlement agreement should be drafted particularly if one party is a Singapore party or has assets in Singapore.
The Singapore Convention has the prospect of putting mediation as an alternative form of dispute resolution on par with arbitration which is often chosen by parties simply by reason of the ease of enforcement of arbitral awards under the New York Convention. However, the Singapore Convention is yet to attain the coverage comparable to the New York Convention. As of the date of this article, there are more than 160 state parties to the New York Convention but only 52 countries have signed the Singapore Convention (as opposed to 161 countries that have ratified to the New York Convention). Popular dispute resolution venues such as Australia, UK and the EU are yet to sign the Singapore Convention. That said, the largest economies such as the U.S. and China have already signed the Singapore Convention and we expect this will encourage the other States to follow suit.