Enforcement of International Mediated Settlement Agreements in Asia - A Path Towards Convergence

Enforcement of International Mediated Settlement Agreements in Asia - A Path Towards Convergence
Author: Eunice Chua
Publisher:
Total Pages: 0
Release: 2019
Genre:
ISBN:

In 2014, the United Nations Commission on International Trade Law (UNCITRAL) first considered a proposal for the development of a multilateral convention on the enforceability of international commercial settlement agreements reached through conciliation (defined to include mediation). The goal of this project was to encourage international mediation in the same way that the New York Convention facilitated the growth of arbitration. UNCITRAL Working Group II has since completed its work on a convention on international settlement agreements resulting from mediation and amended model law on international commercial mediation and international settlement agreements resulting from mediation. The UNCITRAL Commission has also approved these instruments. In Asia, where continued growth of cross-border trade is expected, the potential for these UNICTRAL instruments to facilitate the resolution of cross-border commercial disputes and support economic growth is immense. With a focus on jurisdictions such as China, India, Hong Kong and Singapore, this paper discusses the convention and amended model law, and examines how far down Asia is on the path towards convergence in the enforcement of international mediated settlement agreements.

The Singapore Convention on Mediation

The Singapore Convention on Mediation
Author: Nadja Alexander
Publisher: Kluwer Law International B.V.
Total Pages: 432
Release: 2022-08-11
Genre: Law
ISBN: 9403528230

The Singapore Convention on Mediation is just beginning its life as an international legal instrument. How is it likely to fare? In the second edition of this comprehensive, article-by-article commentary, the authors provide a robust report on the features of the Convention and their implications, with an analysis of potential controversies and authoritative clarifications of particular provisions. The book’s meticulous examination considers these issues and topics: international mediated settlement agreements as a new type of legal instrument in international law; types of settlement agreements that fall within the scope of the Convention; how the Convention’s enforcement mechanism works; the meaning of ‘international’ and the absence of a seat of mediation; the Convention’s approach to recognition and enforcement of international mediated settlement agreements; the grounds for refusal to grant relief under the Convention; mediator misconduct as a ground for refusal to grant relief; the role of confidentiality in granting relief for international mediated settlement agreements; the impact of the Convention on private international law; the relationship of the Singapore Convention to other international instruments such as the UN Model Law on International Commercial Mediation and the New York Convention on Arbitration; possibilities for Contracting States to declare reservations; court decisions from around the globe on the recognition and enforceability of international mediated settlement agreements; and domestic mediation legislation including domestic laws that implement the Singapore Convention. This book takes a giant step towards relieving the inherent uncertainty associated with how this newly constituted instrument may operate, and how States may become ‘Convention ready’. It is an essential reference for international lawyers, mediators and government officials as the Convention proves itself in the coming years.

The Singapore Convention on Mediation

The Singapore Convention on Mediation
Author: Nadja Alexander
Publisher:
Total Pages: 0
Release: 2022-08-11
Genre: Law
ISBN: 9789403528250

The Singapore Convention on Mediation is just beginning its life as an international legal instrument. How is it likely to fare? In the second edition of this comprehensive, article-by-article commentary, the authors provide a robust report on the features of the Convention and their implications, with an analysis of potential controversies and authoritative clarifications of particular provisions. The book''s meticulous examination considers these issues and topics: international mediated settlement agreements as a new type of legal instrument in international law; types of settlement agreements that fall within the scope of the Convention; how the Convention''s enforcement mechanism works; the meaning of ''international'' and the absence of a seat of mediation; the Convention''s approach to recognition and enforcement of international mediated settlement agreements; the grounds for refusal to grant relief under the Convention; mediator misconduct as a ground for refusal to grant relief; the role of confidentiality in granting relief for international mediated settlement agreements; the impact of the Convention on private international law; the relationship of the Singapore Convention to other international instruments such as the UN Model Law on International Commercial Mediation and the New York Convention on Arbitration; possibilities for Contracting States to declare reservations; court decisions from around the globe on the recognition and enforceability of international mediated settlement agreements; and domestic mediation legislation including domestic laws that implement the Singapore Convention. This book takes a giant step towards relieving the inherent uncertainty associated with how this newly constituted instrument may operate, and how States may become ''Convention ready''. It is an essential reference for international lawyers, mediators and government officials as the Convention proves itself in the coming years.

The Singapore Convention on Mediation and the New York Convention on Arbitration - Comparing Enforcement Mechanisms and Drawing Lessons for Asia

The Singapore Convention on Mediation and the New York Convention on Arbitration - Comparing Enforcement Mechanisms and Drawing Lessons for Asia
Author: Eunice Chua
Publisher:
Total Pages: 0
Release: 2021
Genre:
ISBN:

This article considers the enforcement mechanism for international mediated settlement agreements proposed by the Singapore Convention on Mediation and critically examines this mode of enforcement as against enforcement as an arbitral award in Asia, including through a hybrid process like Arb-Med-Arb. Similarities and differences between the New York Convention and the Singapore Convention on Mediation will be discussed and used to consider how Asian jurisdictions may respond to the Singapore Convention on Mediation and what lessons may be learnt from the arbitration context.

The Future of International Mediated Settlement Agreements

The Future of International Mediated Settlement Agreements
Author: Eunice Chua
Publisher:
Total Pages: 0
Release: 2019
Genre:
ISBN:

In 2002, UNCITRAL developed the Model Law on International Commercial Conciliation. Although at that stage there was a strong effort to develop a uniform enforcement mechanism, the ultimate conclusion was that because of the great variance in the technicalities of domestic procedural laws, harmonisation by way of uniform legislation was not feasible. Nevertheless, in 2014, the United States put forward a proposal to UNICTRAL, calling for the development of a multilateral convention on the enforceability of international commercial settlement agreements reached through conciliation, with the goal of encouraging conciliation in the same way that the New York Convention facilitated the growth of arbitration. This article considers whether such a multilateral convention is the best way forward, through an examination of both scholastic and empirical research. It also discusses the challenges that will be faced by an enforcement convention. However, before an enforcement convention comes to pass, various mechanisms are already available for parties to choose from to enforce their mediated settlements, including recording the settlement as an order of court and an arbitral award.

Enforcing International Mediated Settlement Agreements

Enforcing International Mediated Settlement Agreements
Author: A. K. C. Koo
Publisher:
Total Pages: 16
Release: 2018
Genre:
ISBN:

At the UNCITRAL forty-seventh session in July 2014, a US proposal was tabled which suggested to develop a multilateral convention on conciliation modelled on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”), on the grounds that the lack of easy enforceability of international commercial settlement agreements may impede greater use of the process and lead to duplicative litigation. The UNCITRAL took the US proposal seriously. At the forty-eighth session in June/July 2015, it mandated its Working Group II (the “Working Group”) to identify relevant issues on the topic of enforcement of settlement agreements resulting from international commercial conciliation and develop possible solutions, including the possible preparation of a convention, model provisions or guidance texts. In September 2015 and February 2016, the Working Group elaborated on six issues that the intended instrument would need to address: (i) the nature, content, formalities and other requirements of settlement agreements; (ii) agreement to submit a dispute to conciliation; (iii) recognition of settlement agreements; (iv) direct enforcement or review mechanism as a prerequisite for enforcement; (v) defences to enforcement of settlement agreements; and (vi) possible form that the instrument could take. This chapter explores the bases for favouring mediated settlement agreements over ordinary contracts. It then scrutinises the justifications for establishing an international legal framework for enforcement of mediated settlement agreements and the Working Group's views on the critical issues to be addressed in the proposed instrument. It concludes by considering how such an instrument would perform better than existing domestic regimes in terms of form and content.

Multi-Tier Approaches to the Resolution of International Disputes

Multi-Tier Approaches to the Resolution of International Disputes
Author: Anselmo Reyes
Publisher: Cambridge University Press
Total Pages: 545
Release: 2021-12-16
Genre: Law
ISBN: 1108846513

Multi-tier dispute resolution (MDR) entails an early attempt at mediation followed by arbitration or litigation if mediation is unsuccessful. Seemingly, everyone acknowledges MDR's attractiveness as a means of resolving disputes due to its combination of the flexibility and informality of mediation with the rigour and formality of arbitration or litigation. Yet, the question is why, except in China and some Asian jurisdictions, MDR is not resorted to around the world and MDR clauses in commercial contracts remain relatively uncommon. This book responds to that question by (1) surveying global regulatory approaches frameworks for MDR, (2) comparing MDR trends in Asia and the wider world, (3) identifying MDR's strengths and weaknesses, and (4) prescribing ways to address MDR's weaknesses (the enforceability of MDR clauses, the difficulties arising when the same person acts as mediator and decision-maker in the same dispute, and the enforcement of mediated settlement agreements resulting from MDR).

International Arbitration: When East Meets West

International Arbitration: When East Meets West
Author: Neil Kaplan
Publisher: Kluwer Law International B.V.
Total Pages: 310
Release: 2020-10-09
Genre: International commercial arbitration
ISBN: 9403520620

As Asia, China, in particular, gains economic momentum and increasingly attracts global attention, disputes between Asian and Western parties will inevitably increase. This book, the first to address issues arising from these types of disputes in depth, collects incisive articles by both well-known Asian arbitrators and non-Asian practitioners with extensive experience dealing with arbitrations involving Asian parties, all under the aegis of Michael Moser, a Western-trained lawyer who had the foresight to build a China-focused dispute resolution practice at a time when it was not fashionable to do so. The articles reflect Moser’s exemplary career as an independent arbitrator who has navigated between Asian and Western legal cultures seamlessly for decades. The upshot is an authoritative investigation of the differences and similarities of international arbitration between two contrasting cultures–both from a legal and social perspective– as well as a consideration of how each culture has influenced international arbitration practice overall. Issues covered include the following: interim measures in support of arbitration; the hybrid arbitration-mediation mode of dispute resolution; what China’s investment treaties have to offer; Moser’s ‘Triple A’ approach to mediation; witness conferencing; influence of of rang (¿), or exercise of altruism; Chinese courts’ approach to international arbitration; evolution of investment protection between China and Europe; disclosure versus state secrecy laws in China; and the standard for disclosure in rules of evidence. Given the increasing prevalence of arbitrations seated in Asia and the number of new players engaged in arbitration in Asia, this book is certain to attract a wide range of arbitration practitioners, especially those engaged in arbitrations involving Asian parties. As a comparative study of Asian and Western arbitration theory and practice, it is peerless. Scholars of arbitration worldwide are sure to learn from the insights detailed here of practitioners with consummate experience in arbitrations involving cross-cultural parties. “This is an excellent and wide ranging publication that rightly pays tribute to Michael’s career as a multi-faceted doyen of international arbitration; he has had his base in Asia but at all times he has held a global and even minded view. Many of us – and the overall institution of international arbitration - owe so very much to him.” Matthew Gearing, QC, former Chair of HKIAC “This wide-ranging and insightful volume pays tribute to the distinguished career of Michael Moser, a true Renaissance figure who has traversed both East and West and helped so many others bridge the two.” Gary Born, WilmerHale

Chinese (Taiwan) Yearbook of International Law and Affairs, Volume 39, 2021

Chinese (Taiwan) Yearbook of International Law and Affairs, Volume 39, 2021
Author:
Publisher: BRILL
Total Pages: 500
Release: 2022-12-28
Genre: Law
ISBN: 9004532064

Volume 39 of the Chinese (Taiwan) Yearbook of International Law and Affairs publishes scholarly articles and essays on international and transnational law, as well as compiles official documents on the state practice of the Republic of China (Taiwan) in 2021.

New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution

New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution
Author: Shahla Ali
Publisher: Kluwer Law International B.V.
Total Pages: 313
Release: 2020-12-10
Genre: Law
ISBN: 940352863X

International Arbitration Law Library Volume 59 The eastward shift in international dispute resolution has already involved initiatives not only to improve support for international commercial arbitration (ICA) and investor-state dispute settlement (ISDS) but also to develop alternatives such as international commercial courts and mediation. Focusing on these initiatives and their accompanying case law and trends in the Asia-Pacific region, this invaluable book challenges existing procedures and frameworks for cross-border dispute resolution in both commercial and treaty arbitration. Specially assembled for this project, an outstanding team of experienced and insightful arbitrators and scholars describes pertinent developments including: ICA and ISDS in the context of China’s Belt and Road Initiative; the Singapore Convention on Mediation; the shift to virtual hearings and other challenges from the COVID-19 pandemic; mistrust of the application of the rule of law in certain East Asian jurisdictions; growing public concern over ISDS arbitration; tensions between confidentiality and transparency; and potential regional harmonisation of the public policy exception to arbitral enforcement. The contributors chart evolving practices and high-profile cases to make informed observations about where changes are needed, as well as educated guesses about the chances of reforms being successful and the consequences if they are not. The main jurisdictions covered are China, Hong Kong, Japan, Malaysia, India, Australia and Singapore. The first in-depth study of recent trends in dispute resolution practice related to business in the Asia-Pacific region, the book’s practical analysis of new resources for dealing with the increasing competition among countries to become credible regional dispute resolution hubs will prove to be of great value to specialists in the international business law sector. Lawyers will be enabled to make informed decisions on which venue and dispute resolution methods are the most suitable for any specific dispute in the region, and policymakers will confidently assess emerging trends in international dispute resolution policy development and treaty-making.