By Business & Finance 
Picture credit: Mina Rad on Unsplash
By Cathy Smith SC, Andrew McKeown BL, and Niamh Tubridy BL
The Singapore Convention on Mediation offers a significant opportunity for Ireland to become a leading hub for international commercial mediation. Although Ireland has yet to sign the Convention, its neutral, English-speaking, common-law jurisdiction within the EU positions it well to attract global mediation cases.
“Convinced that the adoption of a convention on international settlement agreements resulting from mediation that is acceptable to states with different legal, social and economic systems would complement the existing legal framework on international mediation and contributes to the development of harmonious international economic relations …”[1]
Cathy Smith SC
Against this background, the Singapore Convention on Mediation was signed in Singapore on 7 August 2019, with the US and China among the first signatories[2]. While the EU was involved in negotiating the Convention, neither it nor its member states have signed it. This is due to various issues at EU level including an outstanding assessment as to whether the EU has exclusive competence or alternatively shared competence with member states, to sign and ratify the Convention. The UK has signed the Convention and has indicated an intention to position the UK as a hub for international commercial mediation.
The Singapore Convention is an international agreement on commercial mediation, much like the New York Convention on arbitration, where courts in signatory states are generally obliged to recognise settlement agreements arising from mediation in international commercial disputes (whether by the enforcement of the settlement, or allowing it to be entered as a defence to a claim). It ensures that parties have a cross border enforcement mechanism without having to engage in a further/alternative mechanism such as arbitration or litigation.
The Convention applies where at least two parties to a settlement of a commercial dispute, operate in different states. The settlement agreement must be in writing (which may be electronic) and signed by the parties and the mediator. Evidence that the settlement arose from mediation, must be supplied to the competent authority of the state in which enforcement is sought.
Andrew McKeown BL
Employment, family or succession, or disputes involving a consumer are excluded. Neither does the Convention apply to court-approved or court-directed mediations, or to those which are linked to an enforceable arbitral award. Signatory states may also declare that the Convention will not apply to public contracts, or that it may only apply where the parties to the settlement agreement have expressly agreed to be bound by the Convention.
Grounds for refusing to grant relief include where the competent authority is satisfied that one of the parties lacked capacity, if such enforcement is contrary to the settlement’s own terms, if the settlement is not final and binding, or if its terms are ineffective, unclear, contrary to public policy of the enforcing state, or outside the competence of the Convention. It may also be refused if there was a serious breach of natural justice, such as issues with impartiality, undue influence, and compliance with applicable standards by the mediator.
Unlike arbitration, there is no requirement for a “seat” for mediation which means that a mediated settlement agreement will be enforceable in Convention signatory states, regardless of where the mediation took place.
However the location of the mediation is relevant. While “Mediator” is not defined, the Convention anticipates that Mediators will abide by certain standards, as “a serious breach by the Mediator of standards applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement” is one of the grounds on which the competent authority in a signature state might refuse relief.[3]
Niamh Tubridy BL
While the signing and ratification of the Convention is awaited, there exists a significant opportunity for Ireland to establish itself as the primary jurisdiction for the mediation of international commercial disputes. Echoing the attributes promoted in the Ireland for Law campaign, Ireland is a neutral, English-speaking, common-law jurisdiction within the EU, with established professional mediation expertise. The Department of Justice is currently working on the establishment of the Mediation Council of Ireland[4]. Included in the Council’s various functions are the maintenance and development of standards in the provision of mediation. The imminent establishment of an independent Mediation Council of Ireland has the potential to establish Ireland and Irish mediators as the gold standard in mediating international commercial disputes – such that parties can be confident that agreements mediated in Ireland would meet the enforceability requirements under Article 5 of the Singapore Convention.
It remains important that Ireland continue in its representations at EU level to ensure that the Convention is soon signed and ratified. In addition, the immediate establishment of the Mediation Council of Ireland is essential, such that Ireland can position itself as the primary location for the mediation of international commercial disputes, resulting in settlement agreements enforceable under the Singapore Convention in signatory states.
This article is part of The Bar of Ireland’s Viewpoints series. The views expressed are those of the authors and do not necessarily reflect the views of The Bar of Ireland.
The Bar of Ireland is home to hundreds of accredited mediators as well as the Dublin Dispute Resolution Centre, a purpose-built neutral venue for resolving disputes. Learn more here.
[1] Resolution adopted by the General Assembly of the United Nations on 20 December 2018.
[2] United Nations Convention on International Settlement Agreements Resulting from Mediation.
[3] Article 5(1)(e)
[4] Section 12 of the Mediation Act, 2017
