Singapore Mediation Convention and China

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The author chairing a session of a workshop on the Singapore Mediation Convention at the International Law Institute of the Chinese Academy of Social Sciences

I was very honored (and gratified) that the workshop pictured above was able to take place on 18 March at the International Law Institute of the Chinese Academy of Social Sciences (CASS).  Unbeknownst to most of the attendees, who included persons from the Ministry of Foreign Affairs, Supreme People’s Court, and National People’s Congress, I was one of the organizers.  Other participants came from the Foreign Affairs College and Shanghai office of the Singapore International Arbitration Centre. The workshop could not have taken place if not for the efficient work of Professor Liu Jingdong and assistant research fellow Sun Nanxiang. I had previously gotten to know Mr. Wen Xiantao, of the Department of Treaties and Law of the Ministry of Commerce (MOFCOM) and official Chinese negotiator of the United Nations (UN) Convention on International Settlement Agreements Resulting from Mediation (Singapore Mediation Convention or Convention) and Sun Wei, Zhong Lun partner and participant in the Convention negotiations as part of Beijing Arbitration Commission’s delegation to the negotiations as with observer status.

The Singapore Mediation Convention is intended to complement the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention, and when it goes into force, will enable international commercial settlement agreements that result from (third party) mediation to be enforced.  A summary of the Convention can be found here, and the United States negotiator, Timothy Schnabel, who proposed the Convention, wrote (in his own capacity) a definitive overview of its text, structure, history, and purpose.  As Mr. Schnabel’s article explains, the Convention is intended to promote the use of mediation in resolving cross-border commercial disputes, because it is more likely to work faster, cost less, and preserve the business relationship. From Mr. Schnabel’s article, it is clear that Mr. Wen ”vigorously participated in the formulation of international norms,” and his views had a positive impact on the eventual text of the Convention, supporting the drafting of a convention rather than only a model law and enabling enforcement of settlements that include both pecuniary and non-pecuniary elements.

From reading Sun Wei’s blogpost on the Kluwer Mediation Blog (part 2 found here)  it was clear that multiple institutions need to come to an agreement that signing and ratifying the Singapore Mediation Convention would be beneficial for China.  I noted many misconceptions about the Convention flying around the Wechatosphere.  Messrs Wen and Sun (and I)  realized that representatives from the institutions involved needed to be in the same room to be able to hear more about the Convention, ask questions and discuss concerns in a congenial environment. As a former practitioner, I thought it would be useful to have Adrian Hughes, QC and Helen Tang (Shanghai-based disputes partner of Herbert Smith Freehills) in the room to be able to speak first hand about the process of and advantages of commercial mediation in international commercial dispute resolution, as well as the enforcement process in the courts of England and Wales.

Wen Xiantao and Sun Wei took the lead in discussing the provisions of the Convention and related issues, Adrian Hughes spoke as a highly experienced international commercial mediator and litigator, and Helen Tang contributed comments from her experience representing Chinese parties in international commercial disputes.  The closed-door and invitation-only format enabled an interactive discussion among all participants. Among the many issues discussed were the implications for the courts, preventing the enforcement of fraudulent mediation settlements, and the lack of a law relating to commercial mediation.

The official report on the workshop is found here.

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