Enforcing Mediated Settlements of International Commercial Disputes: A United Nations Convention

By: Donald L Swanson

Here’s a cool development on enforcing mediated settlements of international commercial disputes:

46 nations have signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Convention is linked here).

A list of those 46 nations is available on this site.

Resolution Adopting the Convention

Here is a condensed version of the United Nations General Assembly’s “Resolution” of December 20, 2018, that adopts the Convention on mediation:

The General Assembly,

Recognizing the value of mediation as a method of amicably settling disputes arising in the context of international commercial relations,

Convinced that the adoption of [this] convention . . . acceptable to States with different legal, social and economic systems would complement the existing legal framework on international mediation and contribute to the development of harmonious international economic relations,

Expressing its appreciation to the Government of Singapore for its offer to host a signing ceremony for the Convention in Singapore,

• Adopts the United Nations Convention on International Settlement Agreements Resulting from Mediation;
• Calls upon those Governments and regional economic integration organizations that wish to strengthen the legal framework on international dispute settlement to consider becoming a party to the Convention.

62nd plenary meeting
20 December 2018

The Convention

Here is a condensed version of the Convention on International Settlement Agreements Resulting from Mediation:

Preamble
The Parties to this Convention,

Recognizing the value for international trade of mediation as a method for settling commercial disputes,
Noting that mediation is increasingly used as an alternative to litigation,
Considering that mediation results in significant benefits,
Convinced that a framework for international settlement agreements resulting from mediation would contribute to the development of harmonious international economic relations,

Have agreed as follows:

Article 1. Scope of application

1. This Convention applies to an agreement resulting from mediation and concluded in writing by parties to resolve a commercial dispute (“settlement agreement”) which, at the time of its conclusion, is international.
2. This Convention does not apply to (i) consumer, family, inheritance or employment law disputes, or (ii) settlements concluded in court or arbitration proceedings.

Article 2. Definitions

“Mediation” means a process 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.

Article 3. General principles

Each Party to the Convention shall enforce a settlement agreement in accordance with its rules of procedure and under the conditions laid down in this Convention.

Article 4. Requirements for reliance on settlement agreements

A party relying on a settlement agreement shall supply the settlement agreement signed by the parties and evidence that it resulted from mediation;

Article 5. Grounds for refusing to grant relief

Enforcement of a settlement agreement may be refused, upon proof that:

(a) A signing party was under some incapacity;
(b) The settlement agreement is null and void or unenforceable under applicable law, is not binding or final according to its terms, or has been modified;
(c) The obligations in the settlement agreement have been performed or are not clear or comprehensible;
(d) The mediator breached standards of care or has undisclosed conflicts of interest.

. . .

Article 8. Reservations

A Party to the Convention may declare that:

(a) It shall not apply this Convention to settlement agreements to which the government or its agencies is a party;
(b) This Convention applies only to the extent that the parties have agreed to its application.

. . .

Article 11. Signature, ratification, acceptance, approval, accession

This Convention is open for signature by all States in Singapore, on 7 August 2019, and thereafter at United Nations Headquarters in New York, subject to ratification by the signatories.

. . .

DONE in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic.

Conclusion

Progress is constantly being made, in a wide variety of contexts, toward the use of mediation for resolving disputes.

The “United Nations Convention on International Settlement Agreements Resulting from Mediation” is a recent and important example of such progress.

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.