[Editor's notes]

Commercial mediation has become an important way of international dispute resolution, and its advantages have been accepted by more and more commercial subjects. In order to benchmark the international rules, optimize the business environment, and establish the international brand of China's commercial mediation service, the special column of Shanghai  Commercial Mediation Center (SCMC) - "Stone of Other Mountains: Trends of International Commercial Mediation", will focus on the express delivery of relevant laws and regulations, professional opinions, organizations, mediation experts, etc. of internationally commercial mediation, providing reference for the development of China's commercial mediation.

This column focuses on the introduction of the United Nations Convention on International Settlement Agreements Resulting from Mediation (also known as the Singapore Convention on Mediation, hereinafter referred to as the Singapore Convention), including the background, contents, professional views of the Singapore Convention and the United Nations Commission on International Trade Law(UNCITRAL) which drafted the Singapore Convention. Professionals who are concerned about commercial mediation are welcome to contribute actively.

I. Laws and Regulations

On June 27th, 2018, the 51st session of the UNCITRAL adopted the Singapore Convention. The Singapore Convention was studied and drafted by the UNCITRAL for four years, aiming at solving the cross-border implementation of settlement agreements reached through international commercial mediation. On December 20th, 2018, the 73rd United Nations General Assembly adopted the Singapore Convention. On August 7th, 2019, the authorized representatives of 46 countries, including China, signed the Singapore Convention, which is also called the Singapore Mediation Convention because it is open for signature in Singapore. The Singapore Convention entered into force on September 12th, 2020. Up to now, 55 countries and regions including China, the United States, India and Singapore have signed this convention.

The signing of the Singapore Convention, together with the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, provide the basis of international law for the implementation of international settlement agreements, foreign arbitral awards and foreign civil and commercial judgments in the future. Together, they constitute the troika of international dispute settlement and realize the joint drive of arbitration, mediation and litigation. Although China has signed the Singapore Convention, there is still a gap between the relevant legislation and judicial practice and its core requirements, including problems such as the enforceability of international mediation agreements in China, the establishment of individual mediation system, and the change of the implementation concept of commercial mediation. Although China signed the Convention as the first batch of 46 countries and regions, its formal entry into force still needs the approval of the National People's Congress.

II. Professional Opinions

In this Professional Opinions we will excerpt from the article "The Singapore Convention on Mediation : a brave new world for international commercial arbitration" by Butlien Robert of Brooklyn Law School, which is included in the library of the UNCITRAL. The author was the president of ADRHS of Brooklyn Law School, and as a leading teacher, the school won the fourth place in the 16th International Chamber of Commerce International Commercial Mediation Competition. The full text can be viewed by clicking https://unov.tind.io/record/72347.

A. Contract Law and Other Procedures

Even with a binding contract, enforcing international disputes through mediation can be a complicated process. There is no universal manner for nations to enforce MSAs. The default method, relied upon by most nations, is litigating a contract law claim. For example, a wronged party may initiate a claim for breach of contract. To do so,“a claim will have to be brought against the non-conforming party on the basis of the mediated agreement, i.e. a contract, and in accordance with the dispute resolution mechanism set out in the mediated agreement.” Resolving a contractual dispute through mediation is not ideal, however, because“a contract is what the parties started out with, and litigating a contract again in another posture was not what the parties contemplated when they entered into the mediation.”

 Some nations have special judicial procedures for enforcing conditions of mediation, such as consent decrees in the United States, and stipulation and judicial notarization for enforcement in Bermuda and India. It has also become increasingly common for countries to facilitate the enforcement of MSAs through the context of arbitration. Under the Arbitration and Conciliation Ordinance of India, for example, a valid settlement agreement signed by the parties has “the same status  and effect as if it were  an arbitral award rendered by an arbitral tribunal.”

Given the lack of international harmonization however, the need for  an enforcement mechanism of international commercial mediation is very well-recognized. The International Bar Association’s Mediation Committee summarized the results of 2006 survey  on mediation by noting that“‘[t]he enforceability of a settlement   agreement is generally of the utmost importance’ and ‘in  international mediation . . . reinforcement is more likely to be sought because of the potential of expensive and difficult cross-border litigation in the event of a failure to implement a settlement.’”

III. Organizations

The United Nations Commission on International Trade Law is the core legal body of the United Nations system in the field of international trade law. A legal body with universal membership specializing in commercial law reform worldwide for over 50 years, UNCITRAL's business is the modernization and harmonization of rules on international business.

Q: What is the mandate of UNCITRAL?

A: The United Nations Commission on International Trade Law (UNCITRAL) (established in 1966) is a subsidiary body of the General Assembly of the United Nations with the general mandate to further the progressive harmonization and unification of the law of international trade. UNCITRAL has since prepared a wide range of conventions, model laws and other instruments dealing with the substantive law that governs trade transactions or other aspects of business law which have an impact on international trade. UNCITRAL meets once a year, typically in summer, alternatively in New York and in Vienna.

Q: What does UNCITRAL mean by the "harmonization" and "unification" of the law of international trade?

A: "Harmonization" and "unification" of the law of international trade refers to the process through which the law facilitating international commerce is created and adopted. International commerce may be hindered by factors such as the lack of a predictable governing law or out-of-date laws unsuited to commercial practice. The United Nations Commission on International Trade Law identifies such problems and then carefully crafts solutions which are acceptable to States having different legal systems and levels of economic and social development.

"Harmonization" may conceptually be thought of as the process through which domestic laws may be modified to enhance predictability in cross-border commercial transactions. "Unification" may be seen as the adoption by States of a common legal standard governing particular aspects of international business transactions. A model law or a legislative guide is an example of a text which is drafted to harmonize domestic law, while a convention is an international instrument which is adopted by States for the unification of the law at an international level. Texts resulting from the work of UNCITRAL include conventions, model laws, legal guides, legislative guides, rules, and practice notes. In practice, the two concepts are closely related.

Q: Who participates in the drafting of UNCITRAL texts?

A: UNCITRAL texts are initiated, drafted, and adopted by the United Nations Commission on International Trade Law, a body made up of 70 elected Member States representing different geographic regions. Participants in the drafting process include the Member States of the Commission and other States (referred to as "observer States"), as well as interested international inter-governmental organizations ("IGO's") and non-governmental organizations ("NGO's").

Q: How many States are members of the Commission?

A: As is the case with most subsidiary bodies of the General Assembly, which is composed of all States members of the United Nations, membership in UNCITRAL is limited to a smaller number of States, so as to facilitate the deliberations. UNCITRAL was originally composed of 29 States. Its membership was expanded in 1973 to 36 States, in 2004 to 60 States and again in 2022 to 70 members. The membership is representative of the various geographic regions and the principal economic and legal systems of the world. Members of the Commission are elected for terms of six years, the terms of half the members expiring every three years.

Q: What are the regional groups represented within the Commission?

A: There are five regional groups represented within the Commission: African States; Asian States; Eastern European States; Latin American and Caribbean States; Western European and Other States.

Q: Is UNCITRAL part of the World Trade Organization (WTO)?

A: No. UNCITRAL is a subsidiary body of the General Assembly of the United Nations. The Secretariat of UNCITRAL is the International Trade Law Division of the Office of Legal Affairs of the United Nations Secretariat. In contrast, the World Trade Organization (WTO) is an intergovernmental organization independent from the United Nations.

The issues dealt with by the WTO and UNCITRAL are different. The WTO deals with trade policy issues, such as trade liberalization, abolition of trade barriers, unfair trade practices or other similar issues usually related to public law, whereas UNCITRAL deals with the laws applicable to private parties in international transactions. As a consequence, UNCITRAL is not involved with "state-to-state" issues such as anti-dumping, countervailing duties, or import quotas.

The above information comes from the official website of UNCITRAL, which can be accessed by clicking https://uncitral.un.org/zh/about.

IV.Mediation Expert

MS. ANNA JOUBIN-BRET is the Secretary of the United Nations Commission on International Trade Law (UNCITRAL) and the Director of the International Trade Law Division in the United Nations Office of Legal Affairs, which functions as the substantive secretariat for UNCITRAL. She is the ninth Secretary the Commission since it was established by the General Assembly in 1966. She played an important role in promoting the drafting and signing of the Singapore Convention.

Ms. Joubin-Bret started her duties as the ninth secretary general of UNCITRAL on November 24th, 2017, during which she continued to conduct research in the field of international investment, including the construction of dispute settlement system between the state and investors, appeal mechanism of international investment disputes, global investment policies, etc. The related works include reshaping the investor-state dispute settlement system (2016), why we need a global appeal mechanism for international investment law (2017), G20 Guiding Principles for Global Investment Policy-making (2019), etc.

Prior to her appointment, Ms. Joubin-Bret practiced law in Paris, specializing in International Investment Law and Investment Dispute Resolution. She focused on serving as counsel, arbitrator, mediator and conciliator in international investment disputes. She served as arbitrator in several ICSID, UNCITRAL and ICC disputes. Prior to 2011 and for 15 years, Ms. Joubin-Bret was the Senior Legal Adviser for the United Nations Conference on Trade and Development (UNCTAD). She edited and authored seminal research and publications on international investment law, notably the Sequels to UNCTAD IIA Series and co-edited with Jean Kalicki a book on Reform of Investor-State Dispute Settlement in 2015.

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