THE SINGAPORE CONVENTION ON MEDIATION ENTERS INTO FORCE
by FRANCESCA FRANCESE, Head of Mediation Department
New scenarios and opportunities for International Mediation
The Singapore Convention enters into force on September 12, 2020, providing the international community with a new tool for alternative dispute resolution: the possibility for States to enforce the agreements resulting from mediation.
Approved by the General Assembly of the United Nations at the end of 2018 and opened for signature by the acceding States in August last year, the first UN convention to be named in honor of Singapore, the Convention enters into force six months after the deposit of the third instrument of ratification, bringing along 52 signatory states, and six states that have already ratified it: Singapore, Fiji, Qatar, Saudi Arabia, Belarus and, as of September 9th, Equador.
According to the preamble to the Convention itself, mediation represents a value, bringing undeniable benefits to international trade, because it offers an increasingly widespread method for the amicable settlement of disputes. The Convention offers a framework for mediation agreements that can be implemented by States with very different legal, social and economic systems, thus implementing and promoting the harmonization of international economic relations.
New Beginning
The stated purpose of the Singapore Convention – a multilateral treaty – is to provide mediation with the same impetus that arbitration received upon the New York Convention of 1958.
Enforceability is a guarantee against the uncertain fate of an agreement reached in an international mediation. The possible collaboration of the State in a private agreement between parties, one being a foreign one, should put an end to the disfavor reserved to mediation by the business world in the same way that it happened – and successfully – for international arbitration.
Mediation: Flexibility and Freedom
The Singapore Convention defines mediation as the process, however called, in which the parties try to reach an amicable settlement of their dispute with the assistance of a third party (“the mediator”) who does not have the authority to impose a solution (Article 2.3). Such a broad and flexible definition can include any form of mediation, under any name, provided that the mediator helps the parties, without issuing a binding decision. There is no indication of a “minimum” structure of mediation, nor the degree of involvement of the mediator.
It is the centrality and freedom of the parties that results from this definition and that, together with its magnitude, can lay the foundations for success.
International Mediation
The Convention applies, among other things, when the agreement is a result of an international commercial mediation.
The Convention sets out the criteria of its applicability and causes of exclusion.
The agreement must be reached “in writing”. However, the written form is interpreted in a very broad way, adapting to the features of international exchanges, to logistics and taking into consideration the advanced technical means of communication that we have today.
It has been observed that international mediation could take place entirely by phone, or on some online platform. And the agreement could result in an exchange of emails from the parties’ accounts.
Criticism
According to some critical voices, the fact that EU and Great Britain have not signed it, yet, will diminish the global reach of the Convention, which will be limited to the Asian and Pacific areas, leaving out the Old Continent.
The Singapore Convention, from its preparatory work, to the signing ceremony, and now to its entry into force, has the undeniable merit of keeping mediation on the spotlight of the international community. The same spotlight that in Europe, and especially in Italy, we have kept on for well over a decade. In Europe and in Italy we can count on a considerable amount of experience and professional excellence in the field of mediation. So it is unthinkable, unreasonable and even foolish to think that Italy and Europe might be somehow be excluded from the conversation on international commercial mediation.
During the preparatory work within Working Group II, it is known that the EU had, at first, openly expressed its preference for an instrument of soft law, i.e. without binding power, rather than for a convention. But with the progress of the negotiations, and with the choice of UNCITRAL of licensing a new Model Law on international commercial mediation together with the text of the Convention, the European delegation appreciated this “double track” solution.
Future Scenario
The signing of the Singapore Convention falls within the exclusive competence of the EU: it is therefore the Union that must take action in this regard. Regardless of any other consideration, It is only natural that in a complex system such as the one that governs the 27 member states, it is necessary to avoid inconsistencies between the laws of the different states on jurisdiction and enforceability.
In Italy, the agreement reached in mediation is already enforceable, pursuant to art. 12 of the Legislative Decree 28/2010. Once the Convention is ratified, the enforceability of the international agreements resulting from mediation will simply constitute an added value to something that we already practice and has been well known for years.
Conclusions
The Singapore Convention enters into force. It constitutes a reference base for the further development and dissemination of mediation for the international community. We, here in Italy, will certainly not be excluded, given the richness of our experience, the excellence of our professionalism and the dephts and relevance of the theoretical and practical studies that we offer as a heritage to the community of the Singapore Convention.
Bibliography
Francese, F., The Singapore Convention, the EU and Italy: the long run towards the signing of the Convention, Asian Pacific Mediation Journal, Vol. 2 No. I (2020) pp. 145-149, Ed. Korean Society of Mediation, ISSN 2671-454X
Francese, F., La Convenzione delle Nazioni Unite sull’esecutività degli accordi raggiunti in mediazione: un primo sguardo, www.ilprocessocivile.it, Giuffrè Francis Lefèvre ISSN 2531-3231