Okay, so what are we talking about here?
Also known as the Singapore Convention on Mediation.
Okay, I’ll just call it the Convention.
Why are we talking about this?
Well, let’s say that Jacinta and Scott are involved in an international commercial dispute. Jacinta and Scott agree to go to mediation and manage to come up with a written settlement agreement that they both sign. Afterwards, Scott doesn’t comply with the terms of the agreement and is in breach.
Ordinarily, Jacinta’s only remedy would be to take Scott to court for breach of contract (basically start the whole dispute process over again, just with a different dispute this time).
Under the Convention, however, Jacinta would be able to take the settlement agreement to the court and seek orders to enforce the agreement straight away, without having to go through the usual trial process. This is pretty groundbreaking.
The Convention also prevents Scott from starting or continuing legal proceedings that were the subject of the settlement agreement.
There are a few formalities, including:
- the dispute must be “commercial” (ie, not relating to a consumer dispute, family law, inheritance law, or employment law);
- the dispute must be “international”;
- the settlement agreement must be in writing; and
- it must be as a result of mediation.
Sounds good. What’s the catch?
Australia hasn’t actually adopted the Convention yet.
Really, why not?
Well, for starters, COVID-19 happened so they’ve probably been busy with that. What I find unusual, though, is that there seems to be no mention (as of 15 Sept 2020) of the Convention anywhere on the websites of the Australian Parliament or the Department of Foreign Affairs and Trade.
Having said that, if history is anything to go by, it might be some time before Australia signs and ratifies the Convention. For instance, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (or “New York Convention”) was adopted by the UN in 1958 and entered into force in 1959. However, Australia did not adopt the New York Convention until 1975.
So, what happens now?
There are likely to be some procedural issues to work through before Australia can adopt the Singapore Convention.
For instance, before it adopted the New York Convention, the Australian Government enacted what is now the International Arbitration Act 1974 (Cth), based on the Model Law on International Commercial Arbitration prepared by the UN Commission on International Trade Law (UNCITRAL). The States and Territories followed suit in about 1985 by each enacting their own legislation based on the Model Law.
No doubt new legislation will need to be drafted to set up the procedural rules needed for compliance with the Convention. But much of the heavy lifting has already been done by UNCITRAL in the Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation.
The really exciting thing about all of this is the potential for the Convention and Model Law to be adopted by the States and Territories so that the same rules apply to domestic mediations as well.
But, for now, I guess we wait. Hopefully, Australia won’t wait 16 years this time to get on board.