INTRODUCTION
The contemporary era is one of globalisation, where no state is isolated from international trade. Whenever we talk about global trade and state relations, we can’t ignore disputes arising from the same relation; hence, dispute resolution is one of the points that has always been at the centre. Historically, disputes are settled by litigation and arbitration, which provide results that are final and enforceable. Both litigation and arbitration involve complex procedures, take time, and are inherently expensive. The nature of litigation and arbitration can break commercial relationships and affect the reputation of parties in the market. In light of this, mediation has gradually become a more adaptable, cost-saving, and relationship-preserving alternative.1
The adoption of the Singapore Convention on Mediation, also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation, was a significant development in international dispute resolution. The convention was adopted by the UN General Assembly in December 2018 and signed in Singapore on 7 August 2019. The convention aims to promote mediation among commercial parties and provide the legal certainty to facilitate mediation as an alternative to the dispute resolution process. It provides a uniform framework for the recognition and enforcement of settlement agreements reached through mediation in international commercial disputes. The convention is seen as the “third missing pillar” of the international dispute resolution framework after the New York Convention on Arbitration and the Hague Convention on Choice of Court Agreements.2.
Mediation is one of the forms of alternative dispute resolution mechanisms where a neutral third party, i.e., the mediator, facilitates dialogue between parties in dispute. The mediation helps them to reach a voluntary and mutually acceptable agreement. The mediator is the one who makes a comfortable and safe environment for parties to have an amicable conversation. Mediation is different from litigation or arbitration, as it does not impose binding decisions. Rather, it provides parties the freedom to craft innovative solutions that meet their commercial or relational needs.
Mediation is preferred over arbitration or litigation because of its progressive nature and unique characteristics, such as voluntariness, confidentiality, flexibility, being controlled by parties, cost-effectiveness, time-saving, and settlement. Through this, the relation of parties is preserved, and their reputation is retained. Despite having so much of an advantage, mediation has still not found that much recognition and appreciation as a dispute resolution mechanism.
It is a fact that before the existence of the Singapore Convention, there was the existence of mediation. The global community recognized early the potential of mediation. Article 33 of the UN Charter enumerates mediation and conciliation as peaceful alternatives to dispute resolution.3 The United Nations Commission on International Trade Law (UNCITRAL), 2002, provided guidance for the adoption of mediation-friendly models but failed to address cross-border enforcement in jurisdiction.4
By the beginning of the 21st century, dissatisfaction started to grow in global trade with the expensive and adversarial arbitration, and the momentum for mediation at the international stage gained momentum. Businesses were seeking a mechanism that could reduce costs and preserve the relationship. In the year 2014, the United Nations delegation to UNCITRAL’s working group II proposed the creation of a framework for the enforcement of agreements reached through mediation. In June 2018, following four years of negotiations, UNCITRAL Working Group II put forth the United Nations Convention on International Settlement Agreements Arising from Mediation (the Singapore Convention on Mediation) and the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Arising from Mediation, 2018.5 It was adopted by the UN General Assembly on 28 December. The convention opened for signature and was signed by 46 states on 7 August 2019, indicating wider international support for mediation. The convention came into effect on 12 September 2020, after the requisite ratifications. As of now, there are 58 signatories to the convention. Other than signatories, there are 18 contracting parties to adhere to the convention, in which Costa Rica is the most recent contracting party to adhere to the convention.6
The convention aims to promote mediation at the international stage by establishing a uniform framework for the recognition and enforcement of international settlement agreements reached through mediation. The scope of the convention is that it applies only to commercial disputes and excludes disputes relating to family, consumer, employment, and personal disputes7. The convention also provides refusal grounds to ensure fairness8 and provisions for reservation9, allowing states to restrict its application.10 It is important to note here that it is unlikely to clash with domestic laws, as the majority of the states have no existing international mediation system.11 The convention is significant in commercial dispute resolution, as it has completely changed the enforcement architecture of international alternative dispute resolution.
Because of its attractive provisions, the convention was signed by states from Asia, the Middle East, and Africa to enhance investor confidence and to promote cross-border trade at the international stage. But the same support was not seen from the European Union and its member states. They haven’t signed the convention, citing concerns about the overlap with the 2008 EU Mediation Directive, possible conflict with national autonomy, and uncertainties about harmonisation across diverse legal structures. It is argued by the experts that continued EU hesitation could drive away international commerce that is dependent on the enforcement of settlement agreements reached through mediation.
With reference to the Investor-State dispute resolution (ISDS), mediation has been traditionally underutilized. Since its introduction, ISDS has recorded only a handful of conciliation cases. The recent development in news about ISDS mediation rules and references to the Singapore Convention imply a shift towards seeing mediation as an effective alternative to arbitration for dispute resolution.12
India has always been a strong supporter of alternative dispute settlement mechanisms; mediation is gaining acceptance along with arbitration and conciliation. The Arbitration and Conciliation Act of 199613 had introduced provisions for mediation in India, which is based on the UNCITRAL model law.
India signed the Singapore Convention on 7 August 2019, marking its commitment to international mediation. With the introduction of the Mediation Act, 2023, an attempt is made domestically to push mediation and make it more formal. The act makes mediation institutionalized and requires pre-litigation mediation to be mandatory for specific disputes and reinforces the enforceability of settlements arrived at through mediation. With its domestic and international commitments, India is emerging as a regional centre for mediation, addressing its congested judiciary and aligning with global best practices.
In this essay, we are going to critically analyze the Singapore Convention on Mediation, the purpose for which it is framed, and its significance in cross-border trade disputes by exploring the provisions of the Convention. We will try to find out the loopholes present in the convention. And to understand better, we will be doing a comparative study of the Singapore Convention and the New York Convention. The paper concludes with some suggestions to improve the Singapore Convention for the better, and hence, making mediation a highly preferred mode of dispute resolution in the most amicable way possible.
LEGAL ANALYSIS OF THE SINGAPORE CONVENTION
The Singapore Convention does not establish itself as a competitor to international arbitration; on the contrary, it offers an alternative dispute resolution method for parties to international commercial disputes that ensures recognition and implementation of mediated settlement. The convention aims to address the lack of a cross-border mechanism for giving effect to mediated settlement agreements by providing a uniform legal framework to the global trade community, reinforcing their trust in the mediation process.
The key provisions of the Singapore Convention are discussed below: –
Article I of the Convention14 Defines the scope of the Convention, which applies to international settlement agreements resulting from mediation in commercial disputes. The article defines an international agreement as an agreement between two parties having a place of business in different States, or a substantial part of the obligation under the settlement agreement is performed in a different state from the place of business. It excludes the settlement agreements approved by the court, recorded and enforceable as arbitral awards, and the agreements in which subject matters are related to family, inheritance, or employment.
Article II of the convention15 defines Mediation as a process… whereby the parties attempt to reach amicable settlement of their dispute with the assistance of a third person or persons (“the mediator”) lacking the authority to impose a solution upon the parties.16 To be recognized and enforced under the convention as a settlement agreement, the agreement should be in writing or recorded in a manner that reflects the agreement.
Article III17 Is the foundational article of the conventions, which mandates the Parties to the convention to enforce international settlement agreements resulting from mediation according to their own procedural rules. Instead of creating a new enforcement regime, the convention aims to use the existing procedures of the parties. The article also provides a settlement to be used in a dispute by providing the “Invoke” principle in order to prove that the dispute has already been solved.
Article IV18 sets out the procedural requirements to enforce a mediated settlement agreement. To avail the relief under the convention, the parties shall furnish the signed settlement agreement and the evidence, such as the mediator’s signature, institution attestation, or any other acceptable evidence.
Article V19 provides the grounds for the refusal of enforcement of the settlement agreement by the parties to the convention. The Party may refuse to enforce the agreement if the agreement is invalid, i.e., null, void, inoperative, or incapable of performance. Other grounds include incapacity of the party, agreement not binding, or it has been modified, the terms of the agreement being vague, or a serious breach of conduct by the mediator, such as failure to disclose a conflict of interest. If the subject matter is not capable of enforcement under local law or is contrary to the public policy, the party may refuse to enforce it.
Reservations have been dealt with under Article VIII of the convention20, which empowers a party to apply the conventions only to agreements where both parties have expressly agreed, or not apply the convention to settlement agreements where the state is a party.
Article XIV of the convention21 States that the relation of the convention with respect to other treaties is compatible; that is, it co-exists with other international agreements, and it supplements rather than overrides them.
LIMITATIONS OF THE CONVENTION
The purpose of this convention is to create a global framework that ensures uniformity among the nations when it comes to mediation. The Convention is a significant and positive step towards such uniformity, but it has some limitations that may hinder its effectiveness and universality. Unlike international commercial arbitral awards, which fall under the New York Convention’s enforcement regime, mediated settlement agreements have reportedly been plagued by enforcement issues.22
Limited Ratification and Implementation
The effectiveness of the convention directly depends upon the number of countries that sign and ratify it. While 55+ countries have already signed the conventions, only a handful of countries have ratified them.23. Currently, major economies and key dispute resolution hubs are missing, which reduces the global reach of the convention. Even the US, the country that proposed the idea of having such a convention in the first place, has not ratified the Convention yet, which raises big concerns about the sustainability of the convention.
Lack of uniformity
The convention remains silent on the standards and qualifications of mediators or their conduct during mediation. This opens the floodgates of inconsistencies and uncertainties, as different countries may interpret the provisions differently. The discretion is upon the State to apply its law of the land, which will undermine the uniformity that the convention aims to achieve. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought proof that: . . . (e) The award . . . has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.24
Exclusion of certain types of disputes
The convention covers only international commercial disputes and explicitly excludes disputes related to family, Inheritance, and employment, which can act as a barrier to the global outreach of the act, as mediation can be highly effective in these matters as well.
Enforcement is subject to Public Policy
The convention provides an exception under Article 5(2)(a)25 to “public policy” without explicitly defining the term, which can then be widely interpreted and thus can be termed as a vague provision.
The “Opt-Out” Clause
A significant drawback is the provision in Article 5(1)(d)26, which allows a party to refuse the enforcement if it is against the terms of the settlement agreement. This provision gives parties the right to “contract out” of the convention by simply relying on a pre-existing clause. This not only defeats the purpose of having an international convention but also undermines the basic principle of uniformity. This provides a wide range of discretionary power to the parties and makes the convention toothless.
Limited Applicability to Hybrid Model
The Convention, under Section II, has defined mediation as a process in which there is an intervention of a third party who does not have the authority to impose solutions. This exclusion could create legal issues for the hybrid dispute resolution methods, such as “med-arb”, mediation followed by arbitration. In such cases, the mediator, who is acting as a third party, can also serve as the arbitrator, which could then lead to legal ambiguity, and there will be a very thin line between impartiality and authority.
The “patchwork” system of enforcement could be the biggest drawback of the Singapore Convention. One country adopting it while others do not will create an uneven enforcement regime in mediation. Until the Singapore Convention is almost universally adopted, parties might still prefer to use traditional methods or their own jurisdiction’s mediation frameworks.
PARALLELS AND CONTRASTS: INSIGHTS FROM THE NEW YORK CONVENTION
The New York Convention of 1958 is considered one of the most successful international arrangements of all time, as more than 80% of countries are its signatories at present.27 It carries with it 60 years of experience, whereas the Singapore Convention is more recent, as it opened for signature in 2019 only. Both conventions are revolutionary steps in the field of alternative dispute resolution at the international level. The Singapore Convention has followed some of the footsteps of the New York Convention and has made its own way on other matters.
The mediation being a flexible and informal process, it doesn’t require any prior agreement like the arbitration; hence, the Singapore Convention has provided for the evidence to prove that the settlement is the result of a mediation.28 The Singapore Convention mirrors the New York Convention by not providing any specific enforcement methods, leaving it to the states to develop their own domestic legal rules meeting the conditions of the convention. This approach has proven successful in the case of arbitration, and it is hoped that the mediation will also taste the same acceptance. As a learning from the New York Convention, unlike it, the Singapore Convention has avoided the use of the term “recognition and enforcement” as the process of recognition is interpreted differently across nations and has only adopted enforcement to attain some sort of common understanding in different jurisdictions.29 The Singapore Convention borrows heavily from the New York Convention’s Article V while adapting the grounds of refusing enforcement and includes incapacity, agreements being null or void or incapable of performance, enforcement contrary to public policy or unsuitability of the subject matter, but along with these, it also includes mediator misconduct in the form of breach of standard or his failure to disclose instances raising reasonable doubts about his impartiality or independence30 considering the voluntariness and the party autonomy involved in the process of mediation. The New York Convention permits reservations based on only reciprocity and commercial relationship, whereas the Singapore Convention extends reservations to declarations for excluding agreements where a state or any of its agencies is a party or declaring the applicability to the extent to which parties to the agreement agree, which seems to be an attempt to emphasize the consensual nature of mediation.31 The Singapore Convention explicitly excludes the agreements enforceable as awards to avoid the overlapping and hence complement the New York Convention instead of competing.
The Singapore Convention has been drafted in such a way that it retains the tested provisions of the New York Convention, but at the same time, it doesn’t forget to improve in the areas where the New York Convention faced challenges, along with preserving the unique consensual nature of the process of mediation. Both conventions are equally important in the contemporary international dispute resolution ecosystem. The Singapore Convention is yet to achieve the widespread ratification and effectiveness of the New York Convention, but the ultimate success lies in where both these conventions, while retaining their unique and specific features, team up and focus on resolving disputes amicably.
ENHANCING THE CONVENTION’S EFFECTIVENESS AND UNIVERSALITY
The Convention, with its immense potential, is a significant step towards cross-border enforceability of mediated settlement agreements. But as discussed above, it faces certain lacunae that need attention to fulfil the promises of the Convention. Based on the limitations discussed, the following are certain recommendations to enhance the effectiveness and universality of the Convention:
Clarifying the Grounds for Refusal
One of the essential provisions of the Singapore Convention is Article 532 which provides an exhaustive list of the grounds on which enforcement of a mediated settlement agreement can be denied. In spite of attempts to achieve balance between flexibility and uniformity, operational difficulties remain in terms of how the grounds are expressed and interpreted. For instance, overlap and possible ambiguities between different grounds, such as between nullity, ambiguity, and inconsistency with terms, leave courts and parties in uncertainty. This mirrors discussions during UNCITRAL Working Group II negotiations, where efforts to further define and regroup the grounds failed due to inconsistent domestic practices and priorities.33. As we move further, the Convention might be improved by having an official interpretive guide (as with the UNCITRAL Guide to the New York Convention) in order to promote consistent application, notably in jurisdictions that are less experienced. Furthermore, the reach of “public policy” exceptions is itself an ongoing source of uncertainty in international enforcement. Due to the lack of additional guidance by using either model legislative guidelines or illustrative examples, states are free to apply overly broad or narrow interpretations, undermining the Convention’s pro-enforcement principle.34 As the Convention is new and there is a lack of precedents to define the scope of “public policy”, there needs to be certain guidelines to ensure a uniform and limited standard.
Mediator’s Standards Harmonization
The adoption of international standards for mediators should be the Convention’s highest reform priority. The Convention should be supplemented with an extensive appendix stating minimum mediator qualifications and behaviour standards. Such standards must consider essential competencies such as neutrality, impartiality, confidentiality, and disclosure duties. The approach should differentiate between aspirational standards that inform ethical decision-making and minimum standards whose violation would render refusal of enforcement under Article 5(1)(e) justified.35 Though the Model Law deals with requirements such as disclosure of information and confidentiality36 in a limited and general manner, the standard requirements need to clearly deal with cross-border mediation issues such as cultural sensitivity, awareness of multiple jurisdictions, and conflict of interest detection in diverse legal systems. International commercial mediators must be competent to handle disputes between parties of various legal traditions and cultures. The requirements should mandatorily demand the disclosure of all situations that could reasonably lead to the raising of questions regarding impartiality, with specific guidelines for conflict assessment in a multi-jurisdictional context.37 Implementation of these standards can be through a hybrid system using international certification coupled with domestic recognition through accreditation. The Convention can attempt to create an international mediator certification organization that creates and sustains core competency standards while recognizing similar domestic certification programs.38 This would encourage harmonization while considering the existing national regulatory systems. The certification program should contain continuing education mandates and regular recertification to ensure professional standards.
Limiting Reservations
The Convention’s opt-in regime, where a state can declare that it will only apply the Convention where the parties have agreed to do so in express terms, is designed to balance party autonomy and predictability. But this questions the wide adoption and automatic enforceability of the Convention. The purpose of the Convention is to have a substantive and uniform enforcement mechanism for international commercial mediation settlements. This diversity in the extent of its applicability narrows down its enforcement and reliability. In time, a step towards restricting or narrowing such reservations, or persuading more states to accept the Convention’s default automatic application, would assist the Convention in realizing its intended purpose as an enforcement regime of genuine universality.39
Expanding Utility: Model Hybrid Dispute Clauses
Article 1(3)(b)40 excludes MSAs that are enforceable as arbitral awards, a precaution against overlap with the New York Convention. In practice, however, advanced parties nearly always include arbitration clauses in settlements to deal with future disputes. Ironically, this practice eliminates most high-value mediation settlement agreements from the Convention’s ambit, limiting its utility to straightforward cases. UNCITRAL must publish model hybrid clauses showing how parties may gain from both governments: simple obligations (e.g., terms of payment) enforceable under the Singapore Convention, with complicated disputes relegated to arbitration. Such advice would bring the Convention’s architecture into line with commercial realities, making it relevant for the very same parties it was meant to serve.41
Need for Data to Ensure Relevancy
Since the Singapore Convention is new, empirical evidence of its operation in practice is currently limited, particularly with respect to contested enforcement proceedings. Continued UNCITRAL and mediation sector support for systematic data gathering, observational research, and feedback loops is critical. Such an evidence base could inform future amendments, learner guides, and in the long term could ensure more harmonization, just as the New York Convention was informed by international study and iterative reform.42 Establishing a periodic review mechanism (every five years, for example) requiring the Parties to present a report on implementation issues and challenges for UNCITRAL or a conference of parties to analyze, suggest, and adopt improvements can be a useful measure. Challenges with the adoption and implementation will continue to emerge with time as we encounter more commercial disputes; hence, having a regular and transparent review system can ensure that the Convention continues to adapt and maintain its relevance.
CONCLUSION
The Singapore Convention is a game-changer in international commercial laws, especially when it comes to cross-border trade disputes. It is a landmark development in international dispute resolution. Once the gap of enforceability is bridged, it will promote the credibility and desirability of mediation as a global mechanism. The Convention provides a predictive, effective, and amicable dispute resolution process for businesses, states, and individuals involved in cross-border business. The power lies in its flexible structure, which takes advantage of the established success of the New York Convention while adapting to mediation’s distinctive consensual nature. Nevertheless, there remain critical shortcomings, such as limited ratification by, uneven mediator standards, and excessively expansive discretionary provisions that have the potential to dilute enforcement consistency. Other than enforceability, the success of the Singapore Convention depends upon the ratification by parties, effective domestic implementation, and cultural acceptance of mediation as a mainstream mechanism for dispute resolution. States like India have demonstrated leadership by embracing the convention and making domestic reforms. Lastly, in the contemporary era, the Singapore Convention promotes multilateralism and a culture of dialogue, compromise, and cooperation.
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Footnotes
1. Itai Apter, The Singapore Convention on Mediation,114, Proc. Ann. Meeting (Am. Soc’y Int’l L.), 120, (2020).
2. Edwin Tong, The Genesis of the Singapore Convention,114, Proc. Ann. Meeting (Am. Soc’y Int’l L.), 117 (2020).
3. Christina G. Hioureas, The Singapore Convention on International Settlement Agreements Resulting from Mediation, 46 Ecology L.Q. 61 (2019).
4. Tong, supra note 3.
5. Ana Ubilava, Underutilisation of ADR in ISDS,26, UCLA J. Int’l L. & Foreign Aff. 131 (2022).
6. United Nations Convention International Settlement Agreements Resulting from Mediation, Dec 20, 2018, U.N. Doc. A/73/17 [hereinafter Singapore Convention on Mediation], https://www.singaporeconvention.org/ (last visited Aug. 26, 2025).
7. supra note 7, Art. 2.
8. Id. Art. 5.
9. Id. Art. 8.
10. Itai Apter & Coral Henig Muchnik, Reservations in the Singapore Convention– Helping to Make the “New York Dream” Come True,20CARDOZO J. CONFLICT RES. 1267 (2019)
11. Apter, supra note 2.
12. Ubilava, supra note 6.
13. The Arbitration and Conciliation Act,1996, § 30(1).
14. supra note 7, Art. 1.
15. Id. Art. 2.
16. United Nations Convention on International Settlement Agreements Resulting from Mediation art. 2, Dec. 20, 2018, 58 I.L.M. 1132
17. Id. Art. 3.
18. Id. Art. 4.
19. Id. Art. 5.
20. Id. Art. 8.
21. Id. Art. 14.
22. See Christina G. Hioureas, The Singapore Convention on International Settlement Agreements Resulting from Mediation: A New Way Forward?, 37 Berkeley J. Int’l L. 215, 215-16 (2019).
23. The Singapore Convention on Mediation, Linklaters (Jan. 18, 2024) https://www.linklaters.com/insights/publications/commercial-mediation-a-global-review/global-guide-commercial-mediation/the-singapore-convention-on-mediation
24. New York Convention art. V(1)(e) (emphasis added).
25. supra note 7.
26. Id. Art. 5
27. HSF-Kramer, Join Us in Singapore to Celebrate 60 Years of the NY Convention, HSF Kramer Notes (May 24, 2018), archived at https://www.hsfkramer.com/notes/arbitration/2018-05/join-us-in-singapore-to-celebrate-60-years-of-the-ny-convention.
28. Eunice Chua, The Singapore Convention on Mediation and the New York Convention on Arbitration: Comparing Enforcement Mechanisms and Drawing Lessons for Asia, in Asian International Arbitration Journal 113, 113–38 (Lawrence Boo & Gary B. Born eds.).
29. Natalie Y. Morris-Sharma, The Singapore Convention: A Milestone for Mediation, in BCDR International Arbitration Review 261, 261–96 (Nassib G. Ziadé ed.).
30. supra note 7.
31. Morris-Sharma, supra note 28.
32. supra note 7, Art. 5.
33. Timothy Schnabel, ‘The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements’ (2019) 19 Pepperdine Dispute Resolution Law Journal 1, at 47-48.
34. Chua, supra note 26.
35. Ministry of Justice, Consultation Response: The Singapore Convention on Mediation – The United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) (2018).
36. U.N. Comm’n on Int’l Trade Law, UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, G.A. Res. 73/198, U.N. Doc. A/RES/73/198 (Dec. 20, 2018).
37. Lushna Godhia, The Ideal Global Mediator Standard – Minimum, Aspirational, Or Neither?, Kluwer Mediation Blog (Oct. 12, 2020), https://legalblogs.wolterskluwer.com/mediation-blog/the-ideal-global-mediator-standard-minimum-aspirational-or-neither/
38. supra note 33.
39. Baaldesh Singh, Singapore Convention on Mediation: The Solution to International Mediation?, 3 AIADR J. INT’l ADR F. 4 (May 2023).
40. supra note 3, Art. 1.
41. Chua, supra note 26.
42. Singh, supra note 37.