Research On Cross-border Enforcement Mechanism Of International Commercial Mediated Settlement Agreements

With the globalization and informatization of economy and trade,timely,repaid and effective resolution of disputes and maintenance of ongoing cooperative relations have become an important goal of commercial dispute resolution.Mediation has won the favor of commercial parties due to its advantages of quick procedure,nonconfrontation and confidentiality,and has gradually become an important way to resolve international commercial disputes.When resolving international commercial disputes through mediation,the mediated settlement agreements concluded by the parties in one country may need to be enforced in other countries.However,there are large differences in the enforcement mechanism of mediated settlement agreements between countries,which hinders the rapid and effective execution of the international commercial mediated settlement agreements worldwide,and is not conducive to the promotion and development of international commercial mediation.The United Nations Convention on International Settlement Agreements Resulting from Mediation(also known as the Singapore Convention on Mediation)is an international legal document on uniting the cross-border enforcement mechanism of international commercial mediated settlement agreements.It was drafted by the United Nations Commission on International Trade Law to develop harmonious international economic relations and conform to the development trend in the field of international commercial disputes resolution.On September 12,2020,the Singapore Mediation Convention officially came into effect,heralding a new era in the development of international commercial mediation.This article focuses on the cross-border enforcement mechanism of international commercial mediated settlement agreements,discusses the nature and legal effect of the international commercial mediated settlement agreements,studies the existing transformed enforcement mechanism of international commercial mediated settlement agreements and their problems,and analyzes the direct enforcement mechanism envisaged in the Singapore Convention on Mediation and its advantages.This article also explores the feasibility of ratification of the convention in China,and puts forward suggestions on the connection between the convention and domestic system of China and the construction of the enforcement mechanism of international commercial mediated settlement agreements in China.This article is divided into four chapters in structure.Chapter 1 is the basic issues of international commercial mediated settlement agreements.This chapter defines the concept of the international commercial mediated settlement agreements,analyzes the nature and legal effect of it,and studies the impact of the Singapore Convention on Mediation on the nature and legal effect of the international commercial mediated settlement agreements.Firstly,this chapter defines the international commercial mediated settlement agreements to clarify the research object.The international commercial mediated settlement agreement is an agreement had international factors and concluded by two or more parties to friendly resolve their commercial disputes,with the help of one or more mediators.Only if the agreement between parties to resolve disputes satisfies the three criteria of “resulting from mediation,resolving commercial disputes and having international factors”,can it constitute an international commercial mediated settlement agreement.Secondly,this chapter analyzes the nature of the international commercial mediated settlement agreements.Scholars have different opinions on the nature of international commercial mediated settlement agreements in theory.There are mainly three views: it is a contract,or it is homogeneous with judgment,or it is just evidence material.And the contract view that the international commercial mediated settlement agreement is a private contract in civil and commercial law is generally accepted by most countries in theory and practice.On the contrary,the Singapore Convention on Mediation endows the international commercial mediated settlement agreements with a special nature and status similar to a judgment or award.It can be circulated freely around the world according to the convention.Finally,this chapter discusses the roots of the legal effect of the international commercial mediated settlement agreements and what legal validity they have.The legal validity of the international commercial mediated settlement agreements stems from the double endowment of “consensus and law”.In view of the fact that the legislations in most countries stipulate mediation as an effective alternative dispute resolution method,and there is a significant difference between international commercial mediated settlement agreements and ordinary contracts,and endowing the international commercial mediated settlement agreements with effect of execution similar judgments or awards will help to give impetus to global promotion and development of mediation and to reduce the burden of the judiciary and to ensure fairness while improving the efficiency of commercial dispute resolution.Chapter 2 is the transformed enforcement mechanism of international commercial mediated settlement agreements.The author comparatively studies the legal framework of the enforcement of mediated settlement agreements in various countries,discusses the legal basis for the enforcement procedure,summarizes the ways to convert the mediated settlement agreements into enforcement title and analyzes the problems in the conversion mechanism in this chapter.The first section comprehensively analyzes the legislative status of the enforcement of mediated settlement agreements worldwide.As a result of the mediation process,the enforcement of the mediated settlement agreements is related to the effectiveness of the mediation.Ensuring the enforceability of the mediated settlement agreements in legislation and promoting its free circulation around the world are inevitable requirements for achieving the goals of mediation and making the mediation completely effective.However,except for the EU members,only a few countries have formulated legal rules that regulate the enforcement of mediated settlement agreements.The second section discusses the meaning and constituent elements of the legal basis of the enforcement procedure,that is enforcement title,and its relationship with the mediated settlement agreements.The enforcement title is the legal basis on which the parties apply for enforcement and the civil enforcement agency adopts civil enforcement measures.It is the legal document that determines the rights and obligations between the obligee and obligor.The mediated settlement agreements do not belong to the category of enforcement title since a lot of countries agree that the mediated settlement agreement is a civil contract.It must go through certain procedures before it can be converted into an enforcement title.The third section summarizes the path of a mediated settlement agreement to an enforcement title,including contract litigation,court approval,notarization,and be considered as arbitral award directly.Before the promulgation of the Singapore Convention on Mediation,there was no law at the international level to treat international commercial mediated settlement agreements in particular,nor was there an expedited enforcement mechanism for international commercial mediated settlement agreements.If an international commercial mediated settlement agreement concluded in a country is to be enforceable in another country,it must either file a cross-border contractual litigation in the enforcement country,or obtain the recognition of the enforcement country after be converted into an enforcement title in the origin country.The fourth section analyzes the problems existed in the transformed enforcement of international commercial mediated settlement agreements,including the complicated and costly cross-border litigation procedures,the difficulty of determining the origin country of international commercial mediated settlement agreements,the risk of harming the confidentiality of mediation,and the inappropriate of starting arbitration after successful mediation.Chapter 3 is the Singapore Convention on Mediation and the direct enforcement mechanism.The author analyzes the background and history of the draft of this convention,and studies the direct enforcement mechanism of the international commercial mediated settlement agreements envisaged by the convention and the reasons for the refusal of enforcement by the enforcement country.First of all,this chapter comprehensively examines the origin of the convention project,discusses the necessity of formulating the convention,and summarizes the focus issues discussed during the drafting of the convention.Compared with litigation and arbitration,mediation has the advantages of flexibility,efficiency,economy,and autonomy in the settlement of commercial disputes.More and more commercial parties have made it the preferred method of dispute resolution.The mediation also becoming a preferred and promoted dispute resolution mechanism for court and government.Considering the incentive effect of the New York Convention on the development of arbitration,the formulation of a convention to unify the enforcement mechanism of mediated settlement agreements can create opportunities and motivation for the development of international commercial mediation.Secondly,this chapter studies the direct enforcement mechanism established by the convention for international commercial mediated settlement agreements.The direct enforcement mechanism means that parties to an international commercial mediated settlement agreement that meets the scope of application of the convention can directly request the competent authority of the enforcement country to enforce the agreement,without the approval of the origin country,and without the need to go through a specific procedure to convert it to an enforcement title.Working Group II was faced with the option of adopting all or using only one of the “direct enforcement mechanism and review or control mechanism”when drafting the convention.After a long period of discussion and research,in view of the purpose of formulating the convention to provide a simple and fast enforcement mechanism for international commercial mediated settlement agreements,the Working Group II finally chose the direct enforcement mechanism established in the convention.As long as the international commercial mediated settlement agreements meet the formal requirements stipulated in the convention,its parties can request the Party to the Convention to enforce the agreement.The competent authority of the Party to the Convention are obliged to review the agreement expeditiously and enforce it when there are no grounds for refusal of enforcement under the convention.The direct enforcement mechanism established by the convention simplifies the cross-border enforcement procedures of international commercial mediated settlement agreements.It is a kind of inclusive mechanism,and has great significance for boosting of the international commercial mediation.Secondly,this chapter discusses the grounds for refusal to grant enforcement under the convention,including the reasons proposed by the respondent and those identified by the competent authority of the enforcement country in accordance with its powers.The convention strictly limits the grounds for refusal to grant enforcement,and provides a guarantee for the expeditious enforcement of international commercial mediated settlement agreements.Finally,this chapter analyzes the impact of the Singapore Convention on Mediation on the resolution of international commercial disputes.Chapter 4 is the construction of the enforcement mechanism of international commercial mediated settlement agreement in China.The author reviews the overview of mediation system of China,summarizes the ways in which mediated settlement agreements can be converted into enforcement title,analyzes the specific ways and problems of enforcing international commercial mediation agreement in China,explores the possibility of China to approve the Singapore Convention on Mediation,and puts forward some suggestions for the construction of the enforcement mechanism of international commercial mediated settlement agreement in China.The first section studies the basic situation of the mediation system of China,examines the legislative framework on mediation system,and analyzes the characteristics and problems of the current mediation system.The mediation system of China has the characteristics of diversified mediation methods,systematization,and non-marketization.But it also has problems such as the lack of a specialized commercial mediation system,insufficient marketization of mediation services,the lack of a professional group of mediators,and incomplete mediation legislation.The second section studies the transformed enforcement mechanism of mediated settlement agreements in China,explores the disputes about the legal validity of mediated settlement agreements in Chinese academics,summarizes the path for the conversion of a mediated settlement agreement into an enforcement title and analyzes the problems existed in it.The academics in China agree that the mediated settlement agreement is a civil contract,but there is controversy over whether such a contract has legal validity and what legal effect it has.In the light of the fact that the legal validity of the mediated settlement agreement stems from the dual endowment of “consensus and law”,the mediation,as well as litigation and arbitration,are dispute resolution methods recognized by law,and their purpose is to resolve disputes.Therefore,whether it is a court judgment,or an arbitral award,or a mediated settlement agreement,the essence of them is to determine the original disputed legal relationship and its rights and obligations,so that the legal relationship with unclear rights and responsibilities can be clarified.In addition,the mediated settlement agreement does not have the force of enforcement under Chinese law,and it must be converted into an enforcement title through some specific procedures,including judicial confirmation,notarization,application for payment order,and mediation-arbitration.These approaches have problems such as limited scope of application,higher cost,and risk of invalid.The third section analyzes the feasibility of China to approve the Singapore Convention on Mediation,discusses the ways for different types of international commercial mediated settlement agreements to be implemented in China,and compared the similarities and differences between the existing enforcement mechanism of China and the direct enforcement mechanism of the convention.Since China has actively participated in the whole process of drafting and negotiating the convention,there is no fundamental conflict between the content of the convention and the laws and policies of China,and approval of the convention will help the development of commercial mediation system and has many other benefits.In view of this,on the basis of clarifying the problems faced by China in ratifying the convention,the author proposes three programs for constructing the enforcement mechanism of international commercial mediated settlement agreements in China,and puts forward some suggestions on the connection between the convention and the judicial system of China.