Link Singapore Convention with PRC legal system

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The final draft of the Singapore Convention on Mediation was approved on 27 June 2018 at the 51st Session of the United Nations Commission on International Trade Law (UNCITRAL), which is designed to promote international commercial mediation and establish a set of mechanisms for direct enforcement of international commercial settlement agreements resulting from mediation. This landmark document in the history of mediation development is as significant in the mediation field as the New York Convention is in the arbitration field.

The Singapore Convention on Mediation was open for signatures by member states on 7 August 2019. China needs to make appropriate adjustments to its current legal system to gear it to the convention. This article discusses the possible challenges in the face of implementation of the Singapore Convention on Mediation in China, and offers possible solutions.

Expediting legislation on commercial mediation. The Singapore Convention on Mediation addresses enforcement of settlement agreements resulting from mediation, but does not provide for the mediation procedures. For this reason, whether this convention can be effectively implemented in member states relies on the national legislation.

At the international level, mature legal rules on international commercial mediation have come into being after years of development. The most representative is the UNCITRAL Model Law on International Commercial Conciliation, which provides for the basic problems in commercial mediation in detail. China is still on its way to establishment of a legislation system for commercial mediation. Therefore, China should learn from the Model Law on International Commercial Conciliation for systematic construction of the legal system for commercial mediation.

Understanding and application of articles. In order to gain wide support, UNCITRAL made a compromise, or drafted some provisions vaguely, in drafting the Singapore Convention on Mediation. In China, these articles will need further clarification from the Supreme People’s Court in the form of judicial interpretation.

For example, article 1 of the convention stipulates that the convention is applicable to the entire settlement agreement without differentiating pecuniary obligations from non-pecuniary ones. In practice, however, a settlement agreement generally contains non-pecuniary obligations, or contains mutual obligations of the parties for each other. Say, if it is difficult to enforce the non-pecuniary obligation of one party (e.g., for the delivery of a famous painting), will the court enforce the corresponding pecuniary obligation of the other party? In this regard, the Supreme People’s Court should offer guidance.

For another example, the Singapore Convention on Mediation provides “not clear or comprehensible” settlement agreement as one of the defences but leaves a decision of “not clear or comprehensible” agreement to the courts of member states. In this regard, the Supreme People’s Court should lay down uniform criteria for courts of different regions at all levels.

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