The Convention contains (article 50) a list of reasons why a Member State may refuse to recognise and implement a transaction agreement. Many of them are not surprising and know other rules of application, such as the New York Convention. Under the Singapore Convention, a Member State`s obligation to enforce negotiated transaction agreements is not limited to agreements that, to some extent, emanate from another contracting Member State, such as the place. B.dem of mediation or the place where the agreement was signed. Unlike court decisions and arbitration awards, transaction agreements under the new regime do not have “nationality.” As long as a regulation is international and the result of mediation, it (unless it falls within an excluded category) will be eligible for the application of the convention, regardless of its place of origin. In any event, it may be useful, at least for a period of time, when the parties are not yet aware of the agreement, to demonstrate, during the preparations for mediation, the intention to include such an agreement in a transaction, so that this does not prevent the development of the transaction agreement at the end of a long day of mediation. I found in a previous article that, in practice, non-compliance with transaction agreements concluded by mediation is indeed relatively unusual, at least in relation to court decisions and arbitration decisions. Given that an enforcement system will soon be in place, the parties would be well advised to think about how best to position themselves when needed to take advantage of it. Some of the issues raised below do not provide clear answers at this stage and may need to be the subject of legal proceedings, but should be considered in the organization and implementation of mediations and, above all, in the documentation of a resulting regime.
The default position of the agreement is that, when it applies, it does so automatically without the parties having to participate. However, it contains (in Article 8, paragraph 1, point a), a reserve provision allowing Member States to declare its application only to the extent that the parties to the transaction agreement concerned have agreed that the agreement applies. (For more information on this booking, check out my previous ticket). While this evidentment requirement is understandable given the scope of the convention, the need for the mediator to establish a form of certificate that must be presented to a court as evidence of the facts found is potentially problematic. In most jurisdictions where mediation is well established, the fundamental principle of trust in mediation is supported by a well-accepted principle that parties cannot call a mediator to testify in relation to mediation.