QATAR’S AND KSA’S RATIFICATION OF THE SINGAPORE CONVENTION ON MEDIATION HAS REASSURED THE CROSS-BORDER MEDIATED OUTCOME. By Fawzan Rafeek MRICS MCIArb

QATAR’S AND KSA’S RATIFICATION OF THE SINGAPORE CONVENTION ON MEDIATION HAS REASSURED THE CROSS-BORDER MEDIATED OUTCOME.

By Fawzan Rafeek MRICS MCIArb 

The Singapore Convention on Mediation facilitates international trade and promotes mediation as an alternative and effective method of resolving commercial disputes by providing an effective mechanism for the enforcement of international settlement agreements resulting from mediation and making it one of the most successful multilateral treaties prepared by the United Nations Commission on International Trade Law (UNCITRAL). 

Mediation is a structured process in which the parties discuss their disputes with the assistance of a trained impartial third person(s) who assists them in reaching a settlement and the process is confidential and without prejudice.

Mediation has a rich heritage in the Middle East region. Islamic Law recognises the concept of an independent mediator through the practice of Al Wasata. Al Wasata is the practice of one or more persons intervening in a dispute, either at the request of one or both parties or, interestingly, on their own initiative.

The Convention gives reassurance that a cross-border mediated outcome will have the same protection as international arbitration such as the New York Convention, The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), was adopted by a United Nations diplomatic conference on 10 June 1958 and entered into force on 7 June 1959, 166 states have signed the Convention.

The Singapore Convention was adopted on 20 December 2018 and opened for signature on 7 August 2019. To date(12 February 2021), 53 states have signed the Convention including China, India, Iran, Israel, Jordan, Malaysia, Philippines, Qatar, Republic of Korea, Kingdom Saudi Arabia (KSA), Singapore, Sri Lanka, Turkey and The United States of America (USA).

Qatar’s and KSA’s Ratification of the Convention 

Qatar is the third State to ratified Singapore convention on mediation on 12 March 2020, which has entered into force in Qatar on 12 September 2020. On 5 May 2020, Saudi Arabia ratified the Singapore convention on mediation, which has entered into force in Saudi Arabia on 5 November 2020. 

Key Features of the Convention

Scope of Application covered under Article 1, the Convention applies to international agreements resulting from mediation and concluded in writing by parties to resolve a commercial dispute. Furthermore, lists the exclusions from the scope of the Convention also included in Article 1. Specifically, the Convention excludes settlement agreements concluded by a consumer for personal, family or household purposes, or relating to family, inheritance or employment law, as well as settlement agreements that are enforceable as judgments or as arbitral awards.

Further, General Principles covered under Article 3, that the Parties to the Convention with respect to both enforcement of settlement agreements and the right of a disputing party to invoke a settlement agreement covered by the Convention. It essentially provides that a state that is a party to the Convention shall enforce international settlement agreements in accordance with its rules of procedure and under the conditions laid down in the Convention.

Additionally, Article 4 covers the formalities for relying on a settlement agreement, a party relying on a settlement agreement must supply to the competent authority the settlement agreement signed by the parties and evidence that the settlement agreement resulted from mediation.

Similar to the New York Convention Article 5 of the Convention sets out grounds upon which a court may refuse to grant relief at the request of the disputing party against whom it is invoked. These include cases where:

(i) the incapacity of a party; 

(ii) nullity of the settlement agreement, its lack of binding and final character or its subsequent modification; 

(iii) the obligations in the settlement agreement have been performed or are unclear; 

(iv) the requested relief would be contrary to the settlement agreement; 

(v) breach by the mediator of standards applicable to the mediator or the mediation;

(vi) failure by the mediator to disclose circumstances raising justifiable doubts as to the mediator’s impartiality or independence.

Article 5 also includes two additional grounds upon which the court may, on its own motion, refuse to grant relief. Those grounds relate to public policy and the fact that the subject matter of the dispute cannot be settled by mediation.

An article 7 highlight foresees the application of the more favourable law or treaty and Article 8 includes reservations.

As a result, the government of Qatar in the early stage of preparation of draft domestic mediation law to cover Singapore Convention on Mediation. Mediation settlement agreements agreed in the KSA can be invoked and enforced in other signatory states, vice versa Mediation settlement agreements agreed in other signatory states may be enforced directly by the courts of Kingdom of Saudi Arabia.