LEADING THE WAY FOR THE RECOGNITION AND ENFORCEMENT OF INTERNATIONAL MEDIATED SETTLEMENT AGREEMENTS

• Author: Nadja ALEXANDER1 BA, LLB (Hons) (Qld), Dip International Studies (Vienna), LLM D Jur (summa cum laude) (Tübingen); Professor of Law (Practice), Singapore Management University; Director, Singapore International Dispute Resolution Academy; Mediator, Singapore International Mediation Centre (SIMI certified). Shouyu CHONG LLM (National University of Singapore); Research Fellow, Singapore International Dispute Resolution Academy, Singapore Management University; Visiting Lecturer, The Dickson Poon School of Law, King's College London; PhD Research Student, Centre of Construction Law & Dispute Resolution.
• Publication year: 2022
• Published date: 01 March 2022
• Date: 01 March 2022

I. Introduction and background to the Singapore Convention

1 On 4 February 2020, the Singapore Parliament passed the Singapore Convention on Mediation Bill.2 The enactment of the Singapore Convention on Mediation Act 20203 (“SCMA”) completes the implementation of Singapore's obligations under the Singapore Convention on Mediation4 (“Singapore Convention” or “the Convention”).

2 The Singapore Convention is a multilateral treaty with the underlying objective to promote the resolution of international commercial disputes through mediation.5 The Singapore Convention aims to be, for mediation, what the New York Convention has been, for arbitration — a catalyst for the growth of institutional arbitration for cross-border disputes.

3 Inspired by the success of the New York Convention (and drawing, in part, on its provisions), the Singapore Convention offers a legal framework that facilitates the circulation of international mediated settlement agreements (“iMSAs”) across national borders. It achieves this by establishing a system for the recognition and enforcement of commercial iMSAs. The Convention provides for the elevation of iMSAs to the status of a new type of legal instrument recognised in international law. Neither a contract nor a consent arbitral award, iMSAs that fall within the scope of, and that satisfy the conditions within, the Singapore Convention enjoy a unique status.

4 In most cases, where parties have concluded an iMSA, they ordinarily comply with their obligations under that agreement.6 Where

parties do not comply, however, the Convention offers them access to an expedited recognition and enforcement regime. The drafters of the Convention anticipated that disputing parties would rarely resort to the Convention's expedited enforcement mechanism. Rather, it was hoped that its presence would offer lawyers and parties the confidence to engage in cross-border mediation, knowing that in the unlikely event of non-compliance, their iMSA may be directly enforceable. This approach is in line with the findings of the SIDRA International Dispute Resolution Survey,7 which discerned the reasons behind how and why mediation is being used by disputants not just as a standalone procedure for crossborder commercial disputes, but equally as a central component of mixed mode dispute resolution procedures involving mediation and arbitration. The reasons motivating parties engaged in commercial disputes to choose hybrid dispute resolution procedures (rather than standalone mediation) include the desire to rely on expedited enforcement mechanisms8 (for instance, under the New York Convention or legislation promoting the enforcement of arbitral awards) — this is an important element which the Singapore Convention promises to deliver.

5 Singapore signed the international treaty named after it on 7 August 2019, alongside 45 other State Parties.9 At the time of writing,

nine more States have signed on to the Singapore Convention, bringing the total to 55 State Signatories.10 After enacting the SCMA in Parliament, Singapore was among the first two countries to deposit their instruments of ratification of the Singapore Convention at the United Nations Headquarters on 25 February 2020, the other being Fiji.11 Qatar became the third signatory State Party to deposit its instruments of ratification on 12 March 2020; as such, in accordance with Art 14 of the Convention, the Singapore Convention has since entered into force on 12 September 2020,12 six months after the third ratification.13

6 Against this contextual background, the article is structured into two parts. Part 114 examines the provisions of the SCMA and shows how the Act gives effect to the Singapore Convention. Part 215 examines the regulatory landscape for iMSAs in Singapore in terms of four co-existing regimes: the common law, court-referred mediation practice, the Mediation Act 201716 (“MA”) and the SCMA.

II. Part 1: The Singapore Convention on Mediation Act 2020

A. From Convention to Act

7 With its 16 Articles, the drafters of the Singapore Convention intended to create a minimalist and efficient framework for the recognition and enforcement of iMSAs internationally. The provisions

of the Singapore Convention have been dealt with in previous writing.17 To set the context for our examination of the SCMA, the comparative table below sets out the most important provisions of the SCMA and the equivalent provisions in the Convention itself. It is noteworthy that Singapore has not declared any reservations, which would have been possible under Art 8 of the Convention.

Singapore Convention on Mediation Act	Singapore Convention on Mediation
s 2(1) “mediation”	Art 2(3)
s 2(2)	Art 2(2)
s 3(1) “international”	Arts 1(1) and 2(1)
s 3(2)	Arts 1(2)-1(3) and 8
s 4(1)	Arts 3(1)-3(2)
s 4(2)	Art 7
s 5	Art 3
s 6	Art 4
s 7	Art 5
s 9	Art 6
s 13	Art 4(1) “competent authority”

Figure 1: Comparative table of key provisions of the Singapore Convention on Mediation Act 2020 and Singapore Convention

B. How the Singapore Convention on Mediation Act 2020 works, in a nutshell

8 In Singapore, the SCMA gives legislative effect to the provisions of the Singapore Convention. As indicated previously, once parties have concluded an iMSA, research indicates that they normally comply with their respective obligations.18 However, where this is not the case, the SCMA provides parties to iMSAs that fall within its scope19 with the possibility to proceed to the High Court (namely, the General Division of the High Court, per s 2(4) of the SCMA) or the Court of Appeal (namely, the Appellate Division of the High Court and the Court of Appeal, per s 2(5) of the SCMA) of Singapore to seek relief.20 In accordance with the

SCMA, the party that seeks relief will have to file an application before the relevant Singapore court, and submit as evidence (a) the iMSA which reflects the parties' signatures21 and (b) some tangible proof that the iMSA was a result of mediation, such as an attestation by the mediator or mediation institution that the settlement resulted from mediation.22

9 When seeking relief, parties relying on the SCMA for expedited enforcement may apply their iMSA as a “sword” or a “shield”.23 Provided the iMSA is not refused enforcement based on a defence set out in s 7,24 it will be enforced per ss 4(1)(a) and 5 of the SCMA: the iMSA in this instance would be applied like a “sword”, to compel a counter-party to perform some obligations which have not been complied with therein.25 Alternatively, issues resolved and reflected in the iMSA may be invoked, in accordance with s 4(1)(a) or 4(1)(b) of the SCMA, as a complete defence (or shield) to High Court (namely, the General Division of the High Court, per s 2(4) of the SCMA) or Court of Appeal (namely, the Appellate Division of the High Court and the Court of Appeal, per s 2(5) of the SCMA) proceedings, if parties at litigation contest issues which have already been resolved and reflected in that iMSA.26 At this

juncture, it also bears note that there is no requirement for an iMSA to undergo a review process at the location where it was concluded (the State of origin).27 Whereas the New York Convention imposes an obligation on Contracting States to recognise and enforce an arbitration agreement, that satisfies the requirements prescribed in Art II of the New York Convention, by referring the parties to arbitration, there is no corresponding requirement in relation to mediation agreements in the Singapore Convention. It follows that no question of the preliminary jurisdiction of a mediation arises28 and there is no “seat” of mediation in the sense that there is a “seat” of arbitration in the State of origin, the courts of which State have powers of supervision and review.29 Therefore, as a matter of logic and principle, the State of origin plays no role in judicial review of the iMSA and this may only occur in the State(s) of enforcement.

10 Further, the SCMA amends two existing pieces of legislation. First, the MA30 is amended to accommodate and acknowledge the new status of iMSAs,31 which are recognised and enforceable under the Singapore Convention.32 The purpose of the amendments to the MA is to

maximise parties' procedural choice by preserving a party's rights under the MA as well as the SCMA, if the iMSA falls within the scope of both pieces of legislation.33 Secondly, the Supreme Court of Judicature Act34 has been amended to clarify that the Singapore High Court and Court of Appeal wield the necessary jurisdiction to recognise, and the Singapore High Court to enforce, iMSAs in accordance with the provisions of the Singapore Convention.35 Finally it is noteworthy that the Supreme Court of Judicature (Amendment) Act 201936 has since come into force in 2021. As such, s 2(4) of the SCMA serves to precisely define references to the High Court in the Act as the General Division of the High Court; whilst s 2(5) defines references to the Court of Appeal in the Act as the Appellate Division of the High Court and the Court of Appeal.

11 The provisions of the SCMA are considered in greater detail below.

(1) Scope and basic terms

12 In terms of the scope of the SCMA, international settlement agreements resulting from mediation are relevant. In this article, these are referred to as international mediated settlement agreements or iMSAs.

(a) Settlement agreements resulting from mediation

13 It bears emphasis that the iMSA brought for enforcement under the SCMA must resolve a commercial dispute and must be in writing.37 This factor distinguishes an ordinary contractual agreement from an iMSA;38 only the latter may be offered direct relief under the SCMA. Although based in contract, the legal effect of an iMSA differs from that of an ordinary transactional contract.39 For example, according to the common...