A Study On The Enforcement Of International Commercial Mediated Agreement

The wide applicability of international commercial mediation and its significant advantages become increasingly prominent in today's global trade and commerce.In recent years,countries around the world and even regional organizations are successively establishing corresponding rules on international commercial mediation.However,at the international level,there is no system similar to the New York Convention that can unify the enforcement of international commercial mediated agreements.The different practices of countries in the enforcement of international commercial mediated agreements make it difficult for a party to ensure its rights and interests if the other party refuses to voluntarily enforce such agreement.In the context of the vigorous development of international commercial mediation,its corresponding enforceability dilemma should be put into the agenda for study.At present,in order to solve this dilemma,promote the development of international commercial mediation,and unify the enforcement mechanism of mediated agreements at the global level,the United Nations Commission on Trade Law has enacted the Singapore Convention in 2018 and this convention has already been adopted by the UN General Assembly,is expected to be signed on August 1,2019.In view of the fact that the Convention itself to a certain extent reflects the position of the international community in recent years on the enforcement of international mediated agreements,the study of the provisions of the SingaporeConvention will have positive significance for the improvement of the enforcement mechanism of the international commercial mediated agreement in China even if China will eventually not be a party to this Convention.This paper can be divided into three parts.The first part is mainly about the introductory discussion on issues related to international commercial mediation.It is divided into three subsections.The first subsection mainly defines the concepts of“international commercial mediation” and “international commercial mediated agreement” and so on.Although in practice and in the theoretical world,there are relevant practices and legislations for international commercial mediation,the relevant concepts of “international commercial mediation” in various documents or legislation are not clear,and a completely unified definition concept has not been formed.Therefore,by comparing the various international documents and inter-regional legislation,the paper clarifies the basic concepts of the related issues.The second subsection mainly reaffirms the necessity of conducting research on this enforcement mechanism based on three major reasons.First,international commercial mediation has been widely applied at the international level.Mediation is more effective because of its time and cost effectiveness.It can maintain business relations and create a win-win outcome.All advantages attract the attention and discussion of the international community and make international commercial mediation an increasingly popular means of solving international commercial disputes.Second,international commercial mediation does have its unique advantages over other dispute resolution methods.It is more adaptable to the multiculturalism of each country.The fundamental reason for the necessity of such study is due to the unique character of mediation.A mediated agreement often relies on the voluntary performance of the parties,and lacks an objective guarantee mechanism.The third section mainly introduces the relevant legislation and practice in the United States and Canada.The first is to illustrate that in the drafting stage of the Singapore Convention,there is no unified enforcement system for international commercial mediated agreements.Second,Canada and the United States both arerarecountries that have legislated for the enforcement of international commercial mediated agreements;if China does not eventually join the Singapore Convention,it can refer to the practices of these two countries to improve China's corresponding enforcement system.According to its relevant legislation,the review of mediated agreements is often conducted in accordance with the relevant provisions of the contract law,and the international commercial mediated agreement has the same effect as the arbitral award.For the enforcement of international commercial mediated agreements,Canada usually adopts the contract law review criteria,which is more detailed than the US regulations.Quebec legislation equates the effectiveness of international commercial mediation agreements with the effectiveness of arbitral awards.From a theoretical perspective,both can be implemented cross-border through the New York Convention,whereas no such case law exists.The second part is mainly about the introduction of the Singapore Convention.It is divided into three sections.The first section introduces the initiation of drafting and the drafting background.In view of the fact that the proportion of using commercial mediation to resolve commercial disputes has greatly increased,and more and more jurisdictions have enacted mediation legislation,the United Nations Commission on International Trade Law recognized the significant advantages of using mediation,including reducing disputes,facilitating commercial parties to manage international transactions,and also saving national judicial administrative costs.Promoting the use of mediation will undoubtedly make these advantages practical.However,the international community is aware that one of the obstacles to the increased use of mediation is that mediated agreements are more difficult to enforce than arbitral awards,and parties who agree to mediation may not automatically enforce such agreement.Even if mediated agreement can be carried out under contract law,this path is not only cumbersome but may also be a waste of time for the parties.Therefore,mediation is less attractive to the parties.As such,the US proposal has been discussed.The second section is mainly to sort out the main controversial issues in the negotiation process of the Singapore Convention.The first controversy is mainlyabout whether mediation should include mediation in litigation and mediation in arbitration.Relevant discussions were held at the meeting.Finally,the participants considered that if mediation in litigation and mediation in arbitration were included,it might overlap with the work being carried out by other international organizations on the enforcement of court decisions and overlap with the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards(the New York Convention),ultimately the application of mediation in both procedures have been ruled out.The second controversy is whether the parties to the dispute have the right to choose whether or not to apply the Convention.The issue also caused heated discussions,and finally a compromised compromise was adopted.The third section mainly introduces the implementation mechanism of the Singapore Convention.For the first time,the Singapore Convention clarifies the procedural requirements for applying for the implementation of a mediation agreement.The parties need to provide the competent authority of the country with the mediated agreement signed by the parties and to prove that the mediated agreement is based on mediation,the evidence includes: the signature of the mediator,the relevant documents signed by the mediator and so on.And it also regulates the conditions for reviewing the mediation agreement,the burden of proof,and so on.The third chapter briefly discusses the necessity of signing the Singapore Convention and conducts a preliminary study on its reservation system.For the upcoming Singapore Convention,the author believes that the need for China to actively participate in the treaty can be summarized as follows: First,it helps the mediated agreement involving the domestic party to be enforced around the world;Second,it will help to improve the relevant systems for the enforcement of mediated agreements in China;third,it will help to improve the standardization and specialization of domestic mediation organizations;and fourth,it will help to improve the legalized business environment in China.In addition,even if China chooses not to join the Convention,in order to improve China's corresponding enforcement mechanism,this paper analyzes the existing problems of the relevant systems after introducing the current enforcement mechanism of international commercialmediated agreement in China.On the basis of analyzing the problems,the corresponding suggestions on how to improve the corresponding systems are put forward.First of all,there is no clear legislation on the enforcement mechanism of international commercial mediated agreements in China.Therefore,in the following,the author only analyzes and discusses the current mechanism of enforcement of domestic commercial mediated agreements and related institutional issues.Although China's current enforcement mechanism for commercial mediated agreements has its own characteristics,it is not suitable for the actual needs of international commercial mediation.In order to promote the development of international commercial mediation in China,China should improve the corresponding domestic enforcement mechanism.It is submitted that China's current judicial confirmation procedure system should be improved.For example,the jurisdiction of the court corresponding to the international commercial mediated agreement reached outside China should be determined.