Enforcement Of International Commercial Settlement Agreement Under Un Singapore Convention On Mediation

Mediation,as a dispute resolution method,has important value and advantages in resolving international commercial disputes,and it can provide effective institutional guarantee for the development of international commercial trade.However,the settlement agreement reached from mediation is different from the arbitration award and the court judgment,and in most cases it is regarded as a contract which is not enforceable.Nowadays,it is generally believed that the enforcement of that settlement agreement has become an important factor hindering the development of the mediation For this reason,the United Nations considered and adopted the Singapore Convention on mediation in December 2018.That Convention is based on the New York Convention and attempts to provide countries with uniform standards for the global circulation of international commercial settlement agreements arising from mediation.According to the provisions of the Convention,international commercial settlement agreement refers to international and commercial settlement agreements resulting from mediation.Compared with "foreign arbitration award",the term "international" weakens the territorial nature of the settlement agreement and embodies the implication that the Convention seeks to exempt the effectiveness of the settlement agreement from the control and restriction of systems of unrelated jurisdictions outside the place of application for enforcement.Compared with the general settlement agreement,the mediated agreement has a stronger legitimacy basis for its enforceability,and also there are many obstacles to its enforcement.There have been many countries in the world trying to enforce the mediated agreement through various indirect methods.That Convention directly stipulates the compulsory enforceability of the international commercial settlement agreement resulted from mediation and defines its effect of prohibiting disputes over reoccurrence,confirming its connotation of negative res judicata.Moreover these provisions of the Convention have their legitimate basis and practical needs.The global unified enforcement mechanism of international commercial settlement agreements established by the Convention adopts a direct enforcement mode.Compared with the cross-border enforcement of arbitral awards,it excludes the "recognition" link.At the same time,the Convention also exclude a prior review procedure in other jurisdictions outside the place of enforcement.Due to the practice of converting the mediated agreements into court judgments and arbitral awards in the world,the Convention excludes its scope of application from agreements which are approved by a court or concluded in the course of proceedings before a court and enforceable as a judgment in the State of that court and the settlement agreements that have been recorded and are enforceable as an arbitral award..In the application procedure,the Convention requires the form of the settlement agreement and gives the competent authority a wide range of review powers.On the defense grounds for relying on the settlement agreement,the Convention stipulates that the defense raised by the parties includes the validity,binding force and finality of the settlement agreement.In particular,the Convention also stipulates the defense grounds where granting will violate the terms of the settlement agreement in view of the complex content of the settlement agreement.At the same time,in terms of procedure,the Convention requires that the violation of the procedure must be to the extent that the parties would not have entered into a settlement agreement but for such violation,which reflects the restriction of party autonomy on due process requirements.The defense that can be raised by the authority is the public policy and where the dispute cannot be settled through mediation.It is generally believed that because mediation embodies the high degree of autonomy of the parties,the defense of public policy under that Convention must also be limited accordingly.Finally,the current regulations related to the enforcement of the settlement agreement in China is difficult to meet the requirements of the Convention.However,it is the inevitable trend of the development of international community to enforce the settlement agreement as required by the Convention.We should incorporate it into the development plan of China’s mediation system and define the development direction of the legal effect of the settlement agreement.At the same time,because the commercial settlement agreement has a stronger legitimacy basis for enforcement than the civil settlement agreement,we can effectively consider giving the enforceability.only to the commercial settlement agreement.In addition,the enforcement of commercial settlement agreements must be guaranteed by a certain due process.Therefore,we must develop an independent commercial mediation system,perfect commercial mediation rules and develop the review mechanism of settlement agreements resulting from mediation to improve the review capability.