THROUGH THE LOOKING GLASS: AN INSIDER'S PERSPECTIVE INTO THE MAKING OF THE SINGAPORE CONVENTION ON MEDIATION

• Author: Khory MCCORMICK D Univ (Griffith University), BA (Queensland), LLM (Queensland); FCIArb, FACICA; Professor (Strategic Law), Griffith University. Sharon S M ONG LLB (Hons) (National University of Singapore), LLM (Public International Law) (University College London, University of London); Director, Policy Advisory Division, Ministry of Law.
• Publication year: 2019
• Citation: (2019) 31 SAcLJ 520
• Published date: 01 December 2019
• Date: 01 December 2019

I. Introduction

UNCITRAL finalized the draft UN Convention on International Settlement Agreements Resulting from Mediation. … the Government of Singapore offered to organize a ceremony for the signing of the convention, once adopted. The Commission gratefully acknowledged this offer and adopted the suggestion that the convention be referred

to as the ‘Singapore Convention on Mediation’ by unanimous support.

…

In addition, UNCITRAL adopted the Model Law on International Commercial Mediation and International Settlement Agreements resulting from Mediation, which amends the UNCITRAL Model Law on International Commercial Conciliation of 2002. …

It is expected that both instruments – the Convention as well as the Model Law – will foster the use of international mediation for solving cross-border disputes in a cost effective and efficient manner.[1]

1 This article seeks to give the reader a particular perspective on the origin and primary characteristics of the United Nations (“UN”) Convention on International Settlement Agreements Resulting from Mediation,2 also known as the Singapore Convention on Mediation (“the Convention”) and the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002)3 (“the Model Law”).

2 That perspective is of two delegates4 participating in the sessions of the UNCITRAL Working Group II (“Working Group II” or “the Working Group”) that produced the drafts of each of those texts, which were respectively adopted by the General Assembly of the United Nations on 20 December 20185 and by the UNCITRAL on 25 June 2018.6 This article does not purport to exhaustively analyse its nominated topics, or the full texts. Rather, notwithstanding its stated limitations, this article seeks to ensure that from the outset, any consideration of the official texts can be undertaken with an applied appreciation of why the Working Group was able to achieve the groundbreaking feat of simultaneously bringing the two texts into existence,

and the Singapore Convention (and to an appropriate extent the Model Law) should be seen as a complementary modalities for the resolution of cross-border disputes to the longer established United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards,7 known as the New York Convention on Arbitration (“New York Convention”).

3 The article is divided into two parts. Part I8 surveys the context within which Working Group II undertook its mandate that generated the Convention and the Model Law. Part II9 considers a particular aspect of what occurred within the sessions of the Working Group, namely the delegations agreeing what became known as “the compromise”, and the significance of that agreement both for the form of the texts and the ultimate successful fulfilment of the Working Group's mandate.

II. Part I: The context

A. The mandate

4 In the Report of Working Group II (Arbitration and Conciliation) on the work of its 62nd session,10 the Working Group noted that the Commission, at its 47th session, agreed that the Working Group should consider the issue of enforcement of international settlements resulting from conciliation/mediation, and should report to the Commission at its 48th session, in 2015, on “the feasibility and possible form of work in that area”11 (“the Mandate”).

5 It should be noted that by this time, the terms “conciliation” and “mediation” were stated to be used interchangeably as broad notions referring to proceedings in which a person or a panel assists the parties in their attempt to reach an amicable settlement of their dispute.12

Clarity around the nature of the neutral facilitated process which the official texts would cover understandably was to be achieved later in the work of the Working Group. This clarity was present in a time interval which saw the Working Group change its name from “Arbitration and Conciliation” to “Dispute Settlement” to reflect both the dynamic nature of the issues with which the Working Group was dealing and the very real desire of the Working Group to ensure the contemporary relevance of its work product. That time interval also saw the final draft Convention and Model Law abandon the term “conciliation” in favour of what was considered to be the less ambiguous and increasingly more commonly utilised term “mediation”.

6 “Mediation” is therefore, for the purposes of the Convention, known to mean:13

… a process, irrespective of the expression used or the basis upon which the process is carried out, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (‘the mediator’) lacking the authority to impose a solution upon the parties to the dispute.

7 Suggestions that mediation might be defined by reference to a structured process were rejected out of recognition that it was the flexible and unstructured character of a facilitative process, as well as the differing manner in which mediations were conducted in jurisdictions, that were the very core of the nature of the mediation process. This rejection further reflected a commitment to adopt a contemporary approach to implementing the Mandate based on a working knowledge of what occurred in relation to the Mandate subject matter in practice.

8 In its report of its 62nd session,14 it was noted the Commission considered that the work might be based on a proposal to prepare a convention modelled on the New York Convention. It was further noted that UNCITRAL had already developed two instruments aimed at harmonising international commercial conciliation, namely, the Conciliation Rules (1980)15 and the Model Law on International Commercial Conciliation (2002)16 (“the 2002 Model Law”), which it considered “formed the basis of an international framework for conciliation”.17 In the 2002 Model Law, consideration of the enforceability of settlement agreements had resulted in the insertion of Art 14:

If the parties conclude an agreement settling a dispute, that settlement agreement is binding and enforceable … [the enacting State may insert a description of the method of enforcing settlement agreements or refer to provisions governing such enforcement].

9 Article 14 of the 2002 Model Law, while acknowledging the possibility of enforcement of international settlement agreements, did little to advance the development of an internationally accepted cross-border international settlement enforcement regime for such agreements. It is hardly surprising that at the end of its deliberations as to the legal and practical aspects of a possible enforcement convention, Working Group II agreed to suggest to the Commission that it be given a mandate to work on the topic of enforcement of settlement agreements to identify the relevant issues and develop possible solutions, including the preparation of a convention, model provisions or guidance text. The Working Group rather perceptively recorded:18

Considering that differing views were expressed as to the form and content, as well as the feasibility, of any particular instrument, it was also agreed to suggest that a mandate on the topic be broad enough to take into account the various approaches and concerns.

10 At its 48th session, the Commission confirmed a mandate for Working Group II in the terms conforming to what that Working

Group II had recommended.19 That this position should be arrived at is not surprising. If the records of the deliberations of both the Commission and Working Group II prior to the 48th session of the Commission are perused, it is clear that in the years since 2002, member states as well as the Commission had arrived at the view that conciliation was achieving increasing acceptance as a cross-border dispute resolution modality. The appropriateness of this view was reinforced by the results of delegation responses to an invitation to provide information to the Secretariat on the issue under deliberation.20

11 Reference to the various delegation commentaries, although evidencing differing national stages of maturity in terms of national adoption and acceptance of neutral facilitated settlement processes as part of any given national overall legal framework, confirms a universal acceptance, however qualified, of the legitimacy of such processes. The increasing acceptance of organisations such as the International Mediation Institute and the increasing focus on neutral accreditation standards also reflected this developing reality.

12 If further confirmation of the timeliness of the subject mandate was required beyond that provided by the volume and diversity of the “Observers” attending subsequent Working Group sessions, it was irrefutably provided by an unexpected source, albeit in the later period of work, on the Mandate. That source was the Queen Mary University of London 2018 International Arbitration Survey: The Evolution of International Arbitration21 (“the 2018 Survey”).

13 The Survey has for some time been considered a very good gauge of the state of the international commercial arbitration services market. However, from at least 2015, if not before, the Survey had, to a limited extent, begun to elicit from its survey population views about trends that were manifesting in the facilitative as well as evaluative disputes resolution market. In the 2018 Survey, a major inflection point was identified in the very first chart in the Survey (Chart 1). Of those surveyed, 49%, when asked, “What is your preferred method of

resolving cross-border disputes?” answered, “International arbitration together with ADR.” Standalone international arbitration scored a 48% response. When it is noted that of the survey population, non-service providers (“Other”) only accounted for 21% (“In-house counsel”...