Analysis Of Legal Issues In China’s Accession To The Singapore Mediation Convention

As more and more companies conduct transnational transactions,international trade is developing rapidly.The development and popularity of the Internet has made cross-border transactions between countries more frequent,so it is particularly important to establish an effective dispute settlement mechanism.In recent years,everyone has chosen arbitration as the settlement mechanism in disputes.However,arbitration is expensive and the procedures are particularly lengthy.Therefore,mediation has been favored by the parties as a more convenient and gentler method of dispute settlement.With the increasing use of mediation,its advantages have also been affirmed.International commercial mediation can reduce the cost of dispute settlement,maintain a harmonious atmosphere of the parties to the transaction,prevent further expansion of the dispute,and make the transaction final.While one method is developing rapidly,it is easy to expose the disadvantages,as is mediation.In practice,the parties have reached a settlement agreement.If the parties and the property are in different countries,there is a question of how the settlement agreement is implemented abroad.Regarding the nature and enforcement methods of settlement agreements,each country has different regulations,which are roughly divided into three types.First,the settlement agreement is a newly concluded contract.Second,the settlement agreement can be implemented by converting it into a civil judgment.Third,it can be converted into an arbitral award for enforcement.It can be seen from the above that the settlement agreement reached in mediation cannot be directly implemented,which makes the implementation of the settlement agreement reached in one country in practice face many difficulties.Therefore,the United Nations Convention on Settlement Agreement Resultingfrom Mediation,hereinafter called the Convention,came into being,This Convention has attracted a lot of attention from the international community since it was first drafted.It has opened a new chapter for the implementation of international settlement agreements.The Convention stipulates that the implementation mode of settlement agreements is to be directly implemented without substantive examination.This will definitely push the dispute settlement method to a climax,just as an earlier New York Convention brought the arbitration method to people’s vision.On August 7,2019,46 countries including China,the United States,India,and South Korea signed the convention in Singapore.[The list of countries is as follows(in order of signing): Singapore,Afghanistan,Belarus,Brunei,Burkina Faso,Chile,China,Colombia,Congolese Republic,Democratic Republic of the Congo,Shivadini,Fiji,Georgia,Grenada,Haiti,Honduras,India,Iran,Israel,Jamaica,Jordan,Kazakhstan,Laos,Malaysia,Maldives,Mauritius,Montenegro,Nigeria,Northern Macedonia,Palau,Paraguay,Philippines,Qatar,South Korea,Samoa,Saudi Arabia,Serbia,Sierra Leone,Sri Lanka,East Timor,Turkey,Uganda,Ukraine,United States,Uruguay,Venezuela.During the signing of the treaty,China has been actively participating in the formulation of the Convention,and domestically,discussions on the content of the Convention and its positive role in China have been very lively.The International Mediation Summit Forum,the Third Asia-Pacific Mediation Conference,and the Singapore Mediation Convention seminar all affirmed the positive role of the Convention,and put forward prospects for the implementation of the Convention in China and the convergence of China’s commercial mediation system.It can be seen that China is currently taking a positive attitude towards acceding to the Convention.The Convention has enriched and improved the diversified dispute resolution system,enhanced the mediation attractiveness and mediation rate,improved China’s commercial mediation system,forced China’s commercial legislation,and also improved the “Belt and Road” business environment.Although China is currently positive about joining the Convention,there are many obstacles to China’s accession to the Convention.This article first dissects andanalyzes the provisions of the Convention,such as the principle of enforcement of procedures and the reasons for refusal,and then compares these with the existing laws regulating commercial mediation in China to analyze the differences,and according to how the New York Convention applies,First,the Covenant stipulates that the principle of implementation of the settlement agreement is direct implementation.In China,the settlement agreement has been judicially confirmed or transformed in accordance with the provisions of Articles 194 and 195 of the Civil Procedure Law.Implementation is inconsistent with the requirements of the Convention on member states.Second,the basic law of China’s commercial mediation system is absent,and there are no provisions on mediation and settlement agreements resulting from mediation.The settlement agreement is based on the autonomy of the parties,and its content is more flexible,and it is likely to be rejected because the agreement of rights and obligations does not meet the enforcement standards of the competent authority.Therefore,in the application of the Convention,China will need to refine the landing requirements,such as the requirements of the documents provided,the cost burden of application execution,and the organization that reviews the settlement agreement.For these issues,China does not have specific regulations at present,which may make implementation difficult.Third,the specific reasons for refusing to implement the settlement agreement in the Convention are different from those in China ’s laws and regulations.For example,if the settlement agreement violates the law and the content is not clear,it cannot be implemented.However,for one of the reasons,“public policy”,China ’s In legislation,the term "public policy" did not appear.So,how to understand and apply the public policy of the Convention in China’s judicial practice?In China’s judicial review practice,under what circumstances can public policy be used as a defense and success in refusing to implement an international commercial settlement agreement? It can be seen that there is no clear standard for the definition of "public policy",which will cause a series of problems to the refusal to implement the settlement agreement.In addition,the direct implementation of the Singapore Mediation Convention has certain requirements on the quality of the settlement agreement itself.The professional quality of mediators in China’s mediationinstitutions is not high,and there are no rules and regulations on the selection,training,and work of mediators,which will lead to the achievement of The content of the settlement agreement itself may be difficult to solve or may not meet the needs of the parties.In order to give full play to the role of the Convention,China must establish a legal system that connects with it,modify the existing commercial mediation law,and make unified provisions on the understanding and application of the provisions of the Convention.These include provisions on the scope of application,provisions on enforcement procedures,and specific documents required to apply for the implementation of the settlement agreement.In addition to the documents required by the Convention,the subject applying for the implementation of the settlement agreement also needs to provide a link with the enforcement procedures of our courts.The relevant court documents;clarify the jurisdictional courts that implement the settlement agreement,and specify the circumstances under which international commercial settlement agreements can be reviewed;second,the mediator selection system should be improved,mediator certification mechanisms should be established,mediator guidelines should be formulated,and compliance with the code The situation is linked to the accreditation of mediators,and an incentive mechanism for commercial mediation to settle disputes is established.Third,the supporting mechanism for the implementation of the settlement agreement is improved,such as the establishment of an annual report system for the execution of settlement agreements,the establishment of a special settlement agreement enforcement court,and so on.Promoting the convergence of China’s legal system and supporting facilities with the Convention not only promotes the development of China’s mediation system,the better application of the Convention can also promote the rapid development of China’s international trade.