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Browsing by Author "Friman, Marianne"

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  • Friman, Marianne (2020)
    Abstract The “mediation paradox” means, that the benefits derived from mediation use are well acknowledged but are not well known. The key disadvantage of international commercial mediation and settlement agreements has been the lack of an effective system of recognition and enforcement. To address this matter, The United Nations Commission on International Trade Law (UNCITRAL) has created new instrument for promoting mediation as an effective method of resolving international trade disputes; United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Singapore Convention on Mediation). It applies to international settlement agreements resulting from mediation, concluded by parties to resolve a commercial dispute. As a binding international instrument, it is expected to promote the international mediation. As the Convention is a new mechanism, it is appropriate to consider the diverse practical issues emerging from the Convention. In particular, it is important to minimize the risk of an enforcing court taking objection to a settlement. This thesis addresses the Article 5, the grounds upon which a court may refuse to grant relief at the request of the disputing party against whom it is invoked. Article 5 sets out an exclusive list of grounds upon which a member state can refuse to recognize and enforce a settlement agreement. The main focus here is given on the art. 5 (2) (a); refusing relief on the grounds of public policy. Is the public policy exception still necessary in the era of Singapore Convention? In the European instruments, the public policy clauses are a ground for the non-recognition of a foreign judgement and for the non-application of foreign laws. In practice, public policy is often invoked but seldom applied. In procedural law, the difference between substantive and procedural policy is recognized, and the procedural public policy is much more often invoked and applied that substantial public policy. Can there still be found a justified space or a rational demand found for the confusing concept of substantial public policy? To answer this question, the approach of this study is multi-diciplinary. The legal doctrine serves a an tool for the systematization of the legal order by means of legal concepts and the interpretation of the legal order by means of exploring their substance. The approach is of particular importance also when discussing the core research question, weather the demand and justification for a substantive public policy- exception still excistis in the era of Singapore Convention. Systematization of the various interpretations of the concept is necessary in order to organize these provisions into a conclusion. To answer the core question of this study, the primary tool for organizing the various aspects and impacts of the concept public policy-exception is Tuori´s theory of the multilevel nature The Singapore Convention entered into force on 12th Sep 2020 and, it will apply to mediations conducted anywhere in the world, not just within jurisdictions that have ratified it. This is because, unlike most other enforcement treaties, it does not operate on the basis of reciprocity between contracting states. The frames of this thesis are set within the European legal order, but many of the doctrinal questions on principles are no doubt global. The Convention is global.