INTERNATIONAL COMMERCIAL MEDIATION: AN ANALYSIS


Introduction
International Commercial Mediation was adopted in December 2018, by the “United Nations Convention on International Settlement Agreements.” This convention came into being from a Mediation which was held in Singapore. The International Commercial Mediation, also known as the “Singapore Convention on Mediation” [1] , is used as a right to invoke and enforce the settlement agreements.
“Singapore Convention on Mediation” facilitates International Trade as an instrument of solving trade disputes by an alternate method, i.e., mediation. By using mediation as an alternate method of solving trade disputes, it becomes easier for the parties to deal with disputes as it is quicker and cheaper as compared to other dispute resolution mechanisms. International mediation is a binding international instrument that brings out certainty and stability to the international framework on mediation.   


Key provisions of the international commercial mediation
(i) Article 1 of the “Singapore Convention on Mediation” [2] deals with international settlement of agreements after the process of mediation. They are finished in writing by the disputed parties and are used to resolve a commercial dispute. This Article excludes settlement agreements made by the consumers for household purposes, personal purposes, family, or relating to family purposes; also excluding inheritance or employment law. To avoid the possible overlap with the existing conventions, the Article also excludes a settlement agreement that can be enforced in a judgment or an arbitral award. [3]
(ii) Article 3 deals with the key obligations of the parties meaning that the Singapore Convention covers both enforcement and the right of invoking a settlement agreement by a disputing party. In the case of non-prescription of any requirement by the convention, both parties may determine Procedural Mechanisms.
(iii) Article 5 deals with the reasons due to which a court can refuse to grant relief if the disputed party against whom a case is invoked requests for relief by providing sufficient grounds. The grounds are grouped into 3 categories; (a) relation to the disputing parties, (b) the settlement agreement, (c) mediation procedure. This Article also involves 2 additional grounds on which the court may, on its own motion, refuse to grant relief. These issues can be related to public policy and the fact which says that mediation cannot settle a subject matter of the dispute.
(iv) “This Singapore Convention on Mediation is consistent with the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements resulting from Mediation (2018).” [4] According to this approach the States have the flexibility to adopt either this Convention, the Model Law, or both the Convention and the Model Law, which helps as a complementary instrument of a comprehensive legal framework on mediation. 


Benefits of international mediation
“Mediation is offered by every major organization which deals in International Arbitration. These organizations have their own rules, mediator selecting procedures, and support of the administration in order to conduct mediations. Some of the organizations which deal in this particular area are:, American Arbitration Association (AAA), Centre for Public Resources (CPR), Mediation Centre of the Americas (CAMCA), China International Economic and Trade Arbitration Commission (CIETAC), The International Chamber of Commerce (ICC), World Intellectual Property Organization (WIPO), International Center for Settlement of Investment Disputes (ICSID), Commercial Arbitration. The United Nations Commission on International Trade Law (UNICITRAL) has also given many rules relating to conciliation which can be used in the process of non-administered international dispute resolution” [5]
The benefits of the Process of International Mediation make it widely accepted and followed by the disputed parties:
(i) Cost-Efficient and Time-Saving: According to the Chart of ICC (2010), the average hearing time of mediation is of 1-2 days and overall resolution time is of 2-3 months, which deems it time-saving compared to other dispute resolutions mechanisms. It also gave the average cost of mediation to be US$120,000.00, which is again cheaper compared to any other mechanism. [6]

(ii) Parties can have a Good Rapport and Business Relationship: International Commercial Mediation does not turn the parties against each other but gives an opportunity to reach an agreement to settle their disputes amicably. This opportunity may also be used in building trust to enable the companies to build a good future and a healthy business relationship, also promoting a good rapport amongst them.  
(iii) Parties Can Control the Process: Controlling the process means that the parties are at liberty to select their mediator, their location, the language of the mediation, mediation rules, method of mediation, decide whether they want to exchange the information or not, choose to accept or reject the proposals made by the parties, termination of the mediation can be done at any point of time, the terms and conditions can be modified at any point of time. There can also be numerous outcomes and remedies. The Parties can choose any remedy or an outcome considering they are not infringing on the terms and conditions of the agreement and are not doing anything illegal or against the jurisdiction.


Challenges faced by the countries
Though Mediation is a quick way to resolve disputes, countries still face many challenges. The challenges can be listed as:
(i) Signing Formalities: Mediation is supposed to be a confidential procedure but entails many formalities including the signing of a formal agreement of consent between the parties and the mediator, whereby the mediator may have to reveal their role and function in the process. [7]

(ii) Non-availability of specific legal criteria: The main clause dictating the qualifications required for a mediator not being mentioned in the convention is a challenge in itself. There are no internationally accepted criteria for the mediators or the mediation and the regulation lie with local law and practices. [8]
(iii) Enforcement can be challenged: Any enforcement can be challenged by a party if there is a breach by the mediator in the mediation process. Many mediators may give decisions according to the highest principles of their country which could easily be challenged.[9]

(iv) Concerns Regarding Practicality of the Convention: There is a major concern regarding the operation of this convention. For smooth functioning, many local laws have to be implemented. [10] 
(v) Conflict of Jurisdiction: There is a major conflict of jurisdiction between the countries as the mediators are not sure which law would be applicable. Even if the law of a particular country has been decided in the agreement, there would still be many flaws in it.

Conclusion - What is the take of Countries on the Singapore Convention?
“The convention had a huge impact globally as Forty-six countries, including the world’s two largest economies, the United States and China, and three of the four largest economies in Asia, China, India, and South Korea, signed the Convention on the day it opened for signature, while another 24 countries attended the signing ceremony to show their support for the Convention.” 
The above-mentioned key-highlight tells us the support this convention has got from all the 49 countries who are its signatories. It is fair to say that despite having some challenges this convention has got the attention of many countries and does have a very good future potential.
However, some important economic countries are yet to join, including Australia and the EU. 
Mediation has always been a preferred choice to resolve trade disputes and has now taken place in the International Commercial Law. Mediation not only solves the disputes but also enhances business relationships as both the disputed parties can agree on a mutual settlement leaving no biases in this procedure. Both parties sign the agreement mutually and agree with the decision given by the mediator.[11]
However, as a mediation agreement has a merely contractual status, which is not directly enforceable, the parties may still be left with some uncertainties. Sometimes their dispute may not be settled in an amicable manner and the parties may be unaware of the post-meditation steps that a non-satisfied party can take.   
Hence, this Convention on Mediation is a huge step forward towards the betterment of Commercial Trades, as they can continue working by not wasting their resources and time on the cases arising due to any dispute. This convention with added improvements will surely be given more recognition in the near future as the trade companies are continuously looking forward to form good relations with the businesses.

References
[1]  United Nations Convention on International Settlement Agreements, (hereinafter referred as UNISA).
[2]  UNISA
[3]  UNISA (the "Singapore Convention on Mediation"), Key Provisions, Para 1, Available here
[4]  UNISA (the "Singapore Convention on Mediation"), Key Provisions, Para 6, Available here
[5] TIME TO TRY MEDIATION OF INTERNATIONAL COMMERCIAL DISPUTES by Harold L Abramson in ILSA Journal of Int'l & Comparative Law, Vol.4, Pg. 324 , Available here
[6] INTERNATIONAL COMMERCIAL MEDIATION: A SUPPLEMENT TO INTERNATIONAL ARBITRATION by Ricardo J. Cata, Esq. – Mediator, Pg. 4, Available here
[7] INSIGHT: Challenges Facing the Singapore Convention on Mediation by Jane Larner, Available here
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Key Milestones of Singapore Convention, Available here

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