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  • 06. Dezember 2020

    Convention On International Settlement Agreements Resulting From Mediation 2019

    Many national legal systems are not yet familiar with mediation. If the definition of a certain model of referral and implementation of a negotiated transaction agreement were left to the contracting states, it would create great uncertainty as to the effective application of the convention in all legal orders. The absence of a clear mechanism would create some practical difficulties in legal systems, where the application of negotiated transaction agreements – and, more broadly, mediation as an alternative dispute resolution mechanism – is not explicitly recognized in the national legal order. In addition, Article 5 of the Singapore Convention includes defences similar to those of Article V of the New York Convention, including the defence of the inability to enter into an arbitration agreement and (ii) where the subject matter of the dispute is not in a position to settle by arbitration (mediation) according to the law of the country where recognition or enforcement is sought. In addition, the Singapore Agreement also contains a provision that reflects the defence of application by the New York Convention: (iii) the defence of „public order“. It is a binding international instrument for the signatory parties and therefore expects the international framework for mediation to be defined in a stable and stable manner. It also contributes to the UN`s Goal 16 (SDG 16), which aims to enable access to justice and to establish effective and accountable institutions at all levels. Article 5 of the Convention defines the reasons why a court may, at the request of the party to the dispute against it, refuse the granting of the right. These reasons can be divided into three main categories: the parties to the dispute, the transaction treaty and the mediation procedure. Article 5 contains two other grounds why the Tribunal may automatically refuse to grant discharge. These grounds relate to public policy and the fact that the subject matter of the dispute cannot be resolved through mediation.

    In order to provide for the most favourable framework for transaction agreements, Article 7 provides for the application of the law or contract more favourable. Mediation is known to improve the effectiveness of dispute resolution and flexibility. The role of the mediator is not to decide, but rather to facilitate discussion between the parties to the dispute in order to reach a mutually acceptable solution. The mediation process is more flexible and, in many cases, less costly and more efficient over time than other dispute resolution procedures, such as litigation and arbitration proceedings. Article 2, paragraph 3, contains a broad definition of mediation as an attempt by the parties to „achieve, with the assistance of a third party or a third party (the „Mediator“), an amicable settlement of their dispute, which does not have the power to impose a solution on the parties.“ As long as the regime is covered by this definition, the Singapore Agreement applies regardless of whether or not the resolution process is called „mediation.“ Similarly, mediation does not need to be managed by a mediation body or an accredited mediator. This provision is deliberately broad and aims to enhance the attractiveness of the Singapore agreement by avoiding being excessively prescriptive and maintaining the flexibility that is one of the attractive features of mediation.4 , like the framework of the Convention on the Recognition and Enforcement of Foreign Arbitration Awards (New York), 1958 (the New York Convention) provides for arbitration awards.


    Verfasst von Stefan Oberhauser

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