A uniform and effective framework for international transaction agreements arising from mediation, as noted by the International Mediation Institute and UNCIT, is mediation as a means of resolving international disputes, unlike disputes or arbitration procedures. The perceived benefits of mediation are that it is faster, less costly and more likely to maintain commercial relationships than international arbitrations or litigation. The international implementation of these negotiated comparisons is now facilitated by the Singapore Convention on Mediation, which is particularly important in times of uncertainty in international affairs, such as the COVID 19 pandemic. Several other important factors have influenced the growing use of mediation in international dispute settlement, including china`s Belt and Road initiative, a multi-billion euro infrastructure development strategy in Asia and Europe, and increased trade and investment related to the Trans-Pacific Partnership. However, it is not clear how the courts will set out the Singapore Convention or how often it is invoked in practice. As one commentator notes, a 500-member poll from the region, commissioned in 2016 by the Singapore Academy of Law, showed a clear preference for international trade arbitrations, with 71% preference for arbitrations, 24% in favour of mediation. Interviewees noted opposability, confidentiality and fairness as key factors in the mediation arbitration decision. Article 5 of the Convention defines the reasons why a court may, at the request of the party to the dispute against it, refuse the granting of the right. These reasons can be divided into three main categories: the parties to the dispute, the transaction treaty and the mediation procedure. Article 5 contains two other grounds why the Tribunal may automatically refuse to grant discharge. These grounds relate to public policy and the fact that the subject matter of the dispute cannot be resolved through mediation. In order to provide for the most favourable framework for transaction agreements, Article 7 provides for the application of the law or contract more favourable.
The proof that the transaction was the result of mediation could be the signing of the mediator on the transaction document, a document signed by the Ombudsman attesting that the mediation was carried out, a certificate from the body that managed the mediation or, failing that, other evidence acceptable to the competent authority. Like the New York Agreement, the refusal to implement a transaction agreement negotiated under the Singapore Agreement is limited. These include cases in which: the courts of a contracting party to the convention are likely to deal with applications: in addition, Article 5 of the Singapore Agreement includes defences similar to those provided in Article V of the New York Convention, including (i)) inability to enter into an arbitration agreement and (ii) where the subject matter of the dispute is not in a position to arbitrate under the law of the country in which recognition or performance is not in a position to be sought. In addition, the Singapore Agreement also contains a provision that reflects the defence of application by the New York Convention: (iii) the defence of “public order”. It is not surprising that Singapore is playing a pioneering role in Asia in promoting agreement and mediation in order to consolidate Singapore`s position as an international centre for dispute resolution. Its proactivity is likely to pay off to consolidate this position in the long term, not least because mediation is seen as a means of resolving disputes in accordance with the Asian corporate culture, as it encourages the parties to work towards an acceptable outcome that preserves the face and maintains commercial relations.