Publication Type

Journal Article

Version

acceptedVersion

Publication Date

7-2020

Abstract

In late 2018, the United Nations General Assembly passed a resolution to adopt the UN Convention on International Settlement Agreements Resulting from Mediation and to make corresponding amendments to the Model Law on International Commercial Conciliation. The convention was named the Singapore Convention on Mediation (“Singapore Convention”) when it was signed by 46 countries on 7 August 2019, and will come into force on 12 September 2020. The Singapore Convention is meant to achieve for mediation what the New York Convention has done for international arbitration. Its future success is highly dependent on the sound application of its provisions by the courts in signatory states that is informed by an accurate understanding of the mediation process. This article discusses the fundamental role to be played by the courts in supporting and regulating mediated settlement agreements under the Singapore Convention. It first examines the symbiotic relationship that has existed between the courts and mediation prior to the Singapore Convention. It further discusses the limitations of relying on litigation to support mediated settlement agreements, and other reasons that prompted international efforts to create a cross-border enforcement regime. In addition, it analyses the carefully crafted scope of the Singapore Convention, noting the efforts to ensure that the final instrument accommodated the diversity and flexibility of mediation practices. Finally, it examines how the provisions of the convention – particularly the grounds for non-enforcement – have been drafted to be consonant with both the unique characteristics of the mediation process and the need for mediation to comply with due process and public policy concerns. It argues that the Singapore Convention has struck a delicate balance between interests arising from the interface between mediation and the courts. It is vital that the courts in signatory states are also cognisant of these interests, so as to apply the convention accurately and to maintain the complementary relationship between the courts and the mediation process.

Keywords

Singapore Convention on Mediation, Singapore Convention, mediation, New York Convention, access to justice, coequality, commercial dispute resolution, mediated settlement agreement, enforcement, international mediation, non-enforcement, mediation standards

Discipline

Dispute Resolution and Arbitration

Research Areas

Dispute Resolution

Publication

Journal of the Malaysian Judiciary

Issue

July

First Page

194

Last Page

220

Embargo Period

5-3-2021

Additional URL

http://www.jac.gov.my/spk/images/stories/4_penerbitan/journal_malaysian_judiciary/julai2020.pdf

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