A Study On Enforcement Of Settlement Agreements Under The Singapore Convention On Mediation In China

The United Nations Commission on International Trade Law prepared the United Nations Convention on International Settlement Agreements Resulting from Mediation(known as the ―Singapore Convention on Mediation‖).The Convention provides States with consistent standards on the cross-border enforcement of international settlement agreements resulting from mediation.The ceremony for the opening for signature of the Convention has been held in Singapore on 7 August 2019,and China has signed.It is expected that China will ratify the Convention in the future.So it is important to study the possible legal obstacles to the enforcement of settlement agreements under the Singapore Convention on Mediation in China,and whether the problems can be solved by the ratification procedure.This thesis first introduces the conditions and procedure of settlement agreements under the Convention.It is also mentioned that the Convention cannot be directly bring into effect in China.On the one hand,the Convention differs from China’s existing mediation system.And because of the imperfections,the mediation system cannot be coordinated with the Convention.On the other hand,the settlement agreements under the Convention should be directly enforced in China.However,there are only settlement agreements reached in litigation or arbitration can be enforced directly now.Based on the above issues,the study will be further in the subsequent chapters.First,settlement agreements under the Convention must have three elements: "international","commercial",and "mediation" to be applicable to the Convention.Enforcement of settlement agreements that do not meet the "commercial" and "mediation" will be refused under the Convention.When comparing the provisions of the Convention with China’s current mediation system,it is found that there are deficiencies in our mediation system.There are no official regulations on the range of commercial disputes that are capable of settlement by mediation.Also,there is no standard applicable to the mediator,mediator qualification and so on.The absence of system will lead to inconsistencies in the convergence of our domestic law with the Convention,and even affect the enforcement of the settlement agreements in China.Second,the Civil Procedure Law does not provide for the enforcement of settlement agreements under the Convention.Under the current domestic legal system of China,only the settlement agreements made by the courts and arbitration institutions have the effect of enforcement directly.Enforcement of other settlement agreements requires additional procedures.This problem also exists in other countries,which will cause the waste of time and cost.Although international settlement agreements can be enforced through the Convention in the future,the domestic settlement agreements under the same conditions cannot be enforced.This problem will lead to unfairness and lack of rationality.Besides,jurisdictional courts and the limitation period of execution of the international settlement agreements are not clear yet.Third,both monetary obligations and non-monetary obligations can be enforced through the Convention.However,due to the limitation of China’s domestic legal system and practice,there may be certain obstacles.For one thing,the criteria for judging the enforceability are not very clear.For another,the execution of completed acts may be hard to put into effect in the judicial practice.Some irreplaceable completed acts are very special,which cannot be performed by a third party.And the enforceability cannot be guaranteed.In conclusion,to resolve the problems about the enforcement of settlement agreements under the Singapore Convention on Mediation in China,domestic law should be revised and improved as follows: firstly,the Commercial Mediation Law should be made to promote the convergence of domestic mediation legislation with the Convention,making legislative provisions on the scope of mediation disputes,mediation standards,qualification certification of mediators,code of conduct for mediators,and confidentiality of commercial mediation.Then,at the level of domestic procedural law,the enforcement procedure of the settlement agreements should be added.The prescription and the jurisdiction of court should be clear,too.Additionally,the settlement agreements made by mediation institutions are the closest to the settlement agreements under the Convention,so the Civil Procedure Law shall provide the effect of enforcement for settlement agreements made by mediation institutions.Finally,standards for the enforceability of settlement agreements should be formulated,and the Enforcement Law should be promulgated as soon as possible.