Browsing by Subject "Defences"

Despite of its undeniable benefits, mediation has continuously been the least popular dispute resolution method in international commercial disputes when compared to international arbitration and cross-border litigation. Empirical studies show that the connecting factor seems to be the lack of a uniform and effective enforcement mechanism for international mediated settlement agreements. The enforcement of international mediated settlement agreements has remained an unresolved matter despite the fact that the importance of enforceability has been acknowledged for a long time. The few existing international instruments that address the enforcement of international mediated settlement agreements have not been sufficient enough to create a uniform framework. In this context, UNCITRAL began drafting the United Nations Convention on International Settlement Agreements Resulting from Mediation, i.e. the Singapore Convention, in 2015. Four years later, in August 2019, the Singapore Convention was opened for signatures. The aim of the Singapore Convention is to create a uniform frame for the enforcement of international mediated settlement agreements, hence promoting the use of mediation as a dispute resolution method in international commercial disputes. The Singapore Convention does this by enabling the direct enforcement of international mediated settlement agreements in its contracting states. In order for a settlement agreement to be enforceable under the Singapore Convention, the settlement agreement has to be within the scope of the Convention. In other words, the settlement agreement must result from mediation, it has to be concluded in writing, the dispute resolved through mediation had to be commercial and the settlement agreement had to be international at the time it was concluded. If the mediated settlement agreement meets these requirements, it may be enforced under the Singapore Convention. As to reliance on a mediated settlement agreement, there are certain procedural requirements that have to be fulfilled, such as providing the mediated settlement agreement signed by the parties, as well as proof that the settlement agreement results from mediation. However, even if all the above mentioned requirements are fulfilled, the other party has the possibility to resist enforcement in certain situations by relying on one of the eleven grounds for refusing to grant relief, i.e. defences, provided in the Singapore Convention. Including defences in the Singapore Convention was necessary due to the direct enforcement mechanism the Convention provides for parties. However, as is argued throughout this thesis, there is a risk that the defences might have an undermining effect on the Singapore Convention fulfilling its purpose. The aim of this research is to determine whether the defences included in the Singapore Convention impede the fulfilment of the purpose of the Convention, i.e. the creation of a uniform frame for the enforcement of international mediated settlement agreements. The key matters to address are thus the purpose of the Convention as well as its defences and whether they have an effect on the Convention fulfilling its purpose. The thesis examines the context of the Singapore Convention by briefly considering mediation as a dispute resolution method as well as the importance of enforceability. After this, the thesis introduces the main aspects of the Singapore Convention and shifts the focus from the purpose of the Convention to its contents. Finally, the thesis examines each defence ground and addresses the possible issues that might arise in their practical application. By locating these possible issues, predictions may be made as to whether they are serious enough to impede the fulfilment of the purpose of the Singapore Convention to create a uniform mechanism for the enforcement of international mediated settlement agreements.