Ministry Of Justice Consults On Implementation Of Singapore Convention On International Mediated Settlements

The UN Convention on International Settlement Agreements Resulting from Mediation (better known as the Singapore Convention) requires member states to enforce settlement agreements that result from mediations resolving international commercial disputes. Refusal of recognition or enforcement is possible only on limited grounds. There are currently nearly sixty signatories to the Convention, with around a third of signatories having also ratified.

The UK Government signed the Singapore Convention in May 2023. The Ministry of Justice has now opened a consultation on how the Convention might be implemented within the UK's domestic framework. It is seeking views on its proposed approach from stakeholders including mediation practitioners and organisations, international commercial law firms, business organisations and the judiciary. If you would like a copy of the consultation document, please contact PIL@justice.gov.uk. The consultation is open until 15 October.

Implementing and applying the Singapore Convention may prove more complicated than signing it. We have previously highlighted several areas where the Convention's provisions are ambiguous or else leave flexibility for enforcing courts to take different approaches. The approach proposed by the Ministry of Justice is currently light touch in several respects, with a number of areas to be left to the courts to consider in due course rather than being specifically provided for in implementing legislation.

Key areas of consultation

Responses are sought on a range of issues. We focus on three particular areas of interest below.

Registration

It is proposed that a party seeking to enforce a mediated settlement agreement in England would apply to register the agreement with the High Court. This would be a without notice application, supported by the evidence required by the Convention. The court would then have a discretion to determine the application on the information presented, or direct that the respondent be served and given the opportunity to make submissions. In circumstances where the respondent was not involved at the registration stage, they would have an opportunity to bring a challenge after registration and before enforcement.

This discretionary approach is intended to recognise that determining whether an agreement falls within the scope of the Singapore Convention may not be straightforward in every case. Closer consideration might therefore be needed at the registration stage.

It is proposed that, once a mediated settlement has been registered, all the powers ordinarily available to enforce a court order should be available to enforce it. The Ministry of Justice notes that mediating parties who wish to avoid this route to enforcement can include an express opt-out from the Singapore Convention in their settlement agreement.

Definitions

There are a number of undefined terms in the Singapore Convention which risk giving rise to satellite litigation. For example, the Convention applies to an agreement "resulting from mediation" and which resolves a "commercial dispute". It is arguably unclear, for example, whether enforcement could be refused on the grounds that a settlement was concluded some time after a mediation, but not on the day itself (as is commonly the case).

The Ministry of Justice does not propose to seek to define such terms in legislation, instead leaving it to the courts to interpret the Convention's terminology and to allow case law to develop over time.

Grounds for refusal

The Singapore Convention allows a court to refuse recognition and/or enforcement if one or more of a number of specified grounds is met.

The Ministry of Justice proposes to allow the court to consider whether any grounds of refusal might apply when it is deciding whether or not there should be a contested registration stage, and also to consider the grounds of refusal as part of its registration decision. This approach is seen as being more efficient but notably it differs from the approach taken in other enforcement regimes, such as the Hague Choice of Court Convention 2005 and Hague Judgments Convention 2019, where grounds of refusal are only considered after registration if the respondent challenges the registration decision.

The consultation considers a number of specific grounds for refusal of relief under the Convention, such as whether the mediator has breached relevant standards or failed to disclose circumstances affecting their impartiality or independence, but in general proposes to leave any issues regarding interpretation to be developed in the case law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.