For those of us lamenting the end of UK access to the Brussels 1 regime on recognition and enforcement of cross border judgments which Brexit has brought in its wake there is now another international instrument which we should perhaps have in our sights in terms of enhancing the position both of our courts in England and Wales and of our wider legal services offer. The instrument concerned is the Singapore Convention on Mediated Settlements. This Convention applies to mediated, commercial and international settlements; all three words are important and necessary to the use of the Convention. However, in looking for alternatives, which can maybe offer some solace outside the Brussels regime that list looks quite attractive.
Especially when we bear in mind the pre-eminence of the professional mediation organisations within United Kingdom. To name but two provider organisations and this only by way of example, the Centre for Effective Dispute Resolution (CEDR) and Independent Mediators; there are of course many more, ensuring that overall our mediation sector has huge international reach enjoying a formidable reputation. Whilst not all mediators have a pure legal background there can be little doubt that mediators in the widest sense are part of our national legal services sector and as such part of our global legal service offer.
What makes the Singapore Convention even more interesting is that it applies to the settlement and not where it was made. Thus, any qualifying mediation settlement can be enforced, wherever it was made or mediated as long as the enforcing state is a signatory and has ratified the Convention. The settlement itself is ‘stateless’; accordingly there is not the same need for reciprocity as in the New York Convention on Arbitral Awards 1958.
So where is the Singapore Convention in terms of its progress? The negotiations were completed, and the text adopted by the UN in December 2018. It was then signed by an impressive 46 countries, at the signing ceremony in Singapore in August 2019. It quickly gained the required number of ratifications (3 - being Singapore, Fiji and Qatar) to allow the entry into force on 12th September 2020. Whilst the entry into force was speedy, as yet the ratification process lacks some of the impressive names on the list of signatories.2 However they have at least signalled their intent and this list represents some important trading and commercial partners of the new global Britain, for instance China, the US, India and Turkey. Unfortunately, the UK is not a signatory nor is the EU, which appears to still be going through it’s normal arm-wrestle as to whether Member States or the Union should sign, but the UK is no longer hampered by this problem.
It therefore seems that if we are serious about protecting the offer of our jurisdiction, courts and legal services post Brexit we should be prepared both to become a signatory ourselves and show leadership by ratifying and encouraging others on board. Some renewed combined lobbying of the government by all legal service providers would be welcome whilst acknowledging that many have already made their voices heard.
Of course, this is not to minimise the concerns of some in the mediation community who were sceptical about the Convention and its possible effect on mediation. For some it was counter intuitive to need an enforcement process for a good and successful mediation; this should just not be necessary! However, on the other hand it is clear that it is helpful in promoting mediation if parties know that enforcement is both possible and effective. In other words, the argument goes that Singapore has the possibility to do for mediation what the New York Convention did for international arbitration in terms of popularising and encouraging it as a proper alternative to international litigation through the courts.
However, there was perhaps also a concern that meeting the judicial grounds for recognition and enforcement of a mediation settlement would inevitably lead to a judicialisation of mediation, with more control by the courts. A move which would run counter to the normally perceived ethos of mediation which sees the parties as in control of the process. Whilst the grounds for non-enforcement set out at Article 5 of the Convention do at first sight allow some inquiry into the mediation process itself those sceptics should be reassured by reading the careful and first-hand experience of Michel Kallipetis, QC, FCIArb as to how the final wording of the Convention was negotiated.3 In particular it seems that the existing relevant case law in our jurisdiction would support the professional mediation community against over intrusion or control by the courts unless and only where there has been real misconduct by a mediator or legal advisor.
Perhaps the most helpful side effect of any government thinking about ratification of the Singapore Convention would be that they would have to seriously think about the whole dispute resolution landscape in this country and the enormous potential that we have. Such integrated thinking could bring about, some really constructive new ideas about how we anticipate formal and informal justice working together in this new digital and post Covid age whilst simultaneously enhancing our jurisdiction and legal services offer on the global stage.
Diana Wallis is Former President of the European Law Institute, Former Vice-President of the European Parliament and member of the EU Committee of the Law Society of England and Wales