Enforcing International Mediated Settlement Agreements

Abstract

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.