International Commercial Mediation Research Articles

Research on Foreign-Related Commercial Dispute Settlement Mechanism of the Belt and Road Initiative

This paper examines the current mechanisms and challenges in resolving foreign-related commercial disputes under the Belt and Road Initiative (BRI). It begins with an overview of the existing dispute resolution mechanisms, including the China International Commercial Court (CICC) and the "One-Stop" platform, highlighting their roles and limitations. The study then explores the differences between domestic and international mediation enforcement systems, the obstacles faced by foreign arbitration institutions entering the Chinese market, and the jurisdictional and functional limitations of the CICC. Drawing lessons from the WTO and the Singapore Convention on Mediation, the paper proposes several improvements: establishing a national-level BRI International Commercial Mediation Center, developing a comprehensive online dispute resolution platform, and enhancing the training and integration of foreign-related legal talents. By implementing these recommendations, the BRI dispute resolution mechanism can become more effective, fair, and internationally credible, thus supporting the smooth progression of the BRI.

Views from the Coal Face: the Development of International Commercial Mediation

Views from the Coal Face: the Development of International Commercial Mediation

A Study on the Linkage Between China's Commercial Mediation System and the Singapore Mediation Convention

In order to establish a unified and effective cross-border enforcement mechanism to promote the efficient development of international commercial activities, the United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Mediation Convention” or “The Convention”) officially entered into force on September 12th, 2020. The Convention for the first time explicitly provides for the direct enforceability of settlement agreements, addressing the issue of cross-border enforcement of such agreements. It improves the system of diversified dispute resolution mechanisms including litigation, arbitration, and mediation. As one of the first signatory countries of the Convention, China has expressed its goal and determination to establish an international commercial mediation system. In recent years, Chinese scholars have made rich research achievements on this subject, but China lacks legal norms for commercial mediation and corresponding mediation procedures still need to be developed. The implementation and enforcement of the Convention will pose new challenges to the legislation and institutional construction of commercial mediation in China. This article starts from the current status of the commercial mediation system and the Convention, combines the difficulties of China's existing mediation system, and puts forward reflections and suggestions on the institutional linkage of the Convention. This article is divided into five parts: the first part analyzes the current status of the commercial mediation system, summarizes its origin and development, studies the characteristics of the Convention, and discusses the significance of China's signature of the Convention. The second part summarizes the current status of commercial mediation in China and analyzes the issues of inconsistency and difficulty in aligning China's current commercial mediation system with the Singapore Mediation Convention. The third part explains the necessity and legitimacy of aligning China's current system with the Convention. The fourth part points out the realistic dilemmas of aligning the Convention based on the current development status of China's commercial mediation system. The fifth part presents reflections and suggestions on the dilemmas.

Требования к международному коммерческому соглашению, заключенному в результате медиации: Сингапурская конвенция и российское законодательство

Once Singapore Convention on Mediation was adopted in 2018 and it has become possible to facilitate performance of the international commercial settlement agreements resulting from mediation abroad interest to mediation as a means of settlement of the international commercial disputes started to grow. In the eyes of the lawyers such mediated settlement agreements have much in common with the awards of international commercial arbitration, the most popular dispute resolution tool for disputes arising during foreign trade activities. Today in the age of turbulence and chaos mediated settlement agreements allow to satisfy the needs of business in the expediate settlement of foreign trade conflicts on the terms acceptable for the parties and to obtain guarantee of quick, simple and cost-efficient performance of the agreements reached. For this reason, it is worth considering adjustment of the internal laws to the best world practices. Article considers the means available under the Russian laws to make mediated settlement agreement enforceable and the tests it would have to undergo on the way. Deeming it advisable for Russia to join the Singapore convention on mediation, author concludes that it is necessary to prepare the internal legislation for such step as it was done, e.g., in Belorussia. Possible solution could consist either in introduction of a special chapter on granting relief in connection with the performance of international commercial mediated settlement agreements corresponding to the provisions of the Singapore Convention on mediation and the UNICTRAL Model law on mediation in the Russian Code of Procedure with Commercial Courts or in the adoption of a separate law on international commercial mediation. Since international commercial arbitration and the internal arbitration are regulated in Russia by two separate laws taking into account the special features of the disputes resolved, it would be logic to keep dualistic regulation for mediation as well.

조정제도의 혁신을 위한 법정책적 과제

Mediation, a flexible method of ADR (Alternative Dispute Resolution) is increasingly being recognized as an essential means in resolving various disputes. This is due to the fact that arbitration, which is thought to be the leading form of ADR has lost much of its initial advantages in time and cost, since it’s procedure has become rather complex, something more akin to litigation.
 First, legislative measures for the domestic implementation of the Singapore Mediation Convention include amending existing laws and enacting new laws. Synchronizing the enforcement date of the new law with the timing of ratifying the Singapore Mediation Convention is not enough to prevent a gap in regulation from arising. In this regard, it is preferable to enact new laws rather than amending existing laws. Moreover, it would be a more rational approach to enact a framework act on mediation or an act specifically designed to facilitate civil mediation, as opposed to limiting ourselves only to regulating international commercial mediation with the implementation of the Singapore Mediation Convention.
 As for administrative mediation, currently there are about 70 Dispute Mediation Committees in various government and administrative agencies based on individual laws. Although there are Dispute Mediation Committees that do not have a secretariat, many have secretariats that conduct factual investigations, after which the agenda is presented to the Mediation Committee or a Mediation Division. The legal effect of administrative mediation is also problematic. Some mediation agreements have the same legal effect as settlement in court, while others are similar to civil settlement. At some Dispute Mediation Committees the parties are obliged to participate in mediation and fines are imposed in case of violation, while at other Committees, no such obligation is recognized. Uniformity or consistency are also lacking in respect of grounds for disqualification, and rules on exclusion, challenge, and avoidance. A framework act on administrative mediation should be enacted so as to uniformly regulate the basic elements of the mediation procedure.
 Arbitration and mediation are the two main forms of ADR. And for both, private autonomy is the essential foundation. A Task of innovating mediation is pursuing the effective resolution of disputes by way of combining arbitration and mediation. Although the two forms can be practiced separately, there are hybrid forms that combine the two, and here private autonomy remains critical.
 Our mediation system should allow for connecting mediation and arbitration and create a hybrid form. In civil law countries such as Germany, given the consent of the parties, there is no problem, from the standpoint of private autonomy, in recognizing the same person as a mediator and an arbitrator. Mediation and arbitration do not have to be kept separate. Not only is a hybrid form possible, it is desirable, and should be actively pursued.
 Ratifying the Singapore Convention on Mediation and introducing legislation on its domestic implementation should, in the advent of the Era of Mediation, serve as an opportunity for fundamentally reforming and innovating mediation by proactively preparing the legal framework for training and educating mediators, and enhancing their competencies.

The Synergistic Development of People’s Mediation and Commercial Mediation in China

It is a general trend for the synergistic development of people’s mediation and commercial mediation in China. Given the current operations of people’s mediation and commercial mediation in China, and in conjunction with the overseas experience of alternative dispute resolution, this paper proposes to consolidate the advantages of people’s mediation, cultivate and promote commercial mediation organizations and commercial mediators, facilitate more professional, high-end and international commercial mediation, and cultivate high-level and professional international commercial mediators. Moreover, it is proposed that joint efforts should be made to promote the synergistic development of people’s mediation and commercial mediation and clarify the regulation of false mediation as the path of synergistic development of people’s mediation and commercial mediation in China.

Construction of the International Commercial Mediation Mechanism under BRI

Construction of the International Commercial Mediation Mechanism under BRI

In Pursuit of the Right Path: The Promise of Islamic Leadership in the Post-Singapore Convention World of International Commercial Mediation

In Pursuit of the Right Path: The Promise of Islamic Leadership in the Post-Singapore Convention World of International Commercial Mediation

싱가포르 조정협약과 대한민국 조정의 국제적 허브로서의 선도방안

Multinational corporations around the world are very positive about the use of mediation, rather than costly litigation, if enforcement is guaranteed. Among these trends, the Singapore Mediation Agreement was prepared, and it is encouraging that the core of this agreement is that it also grants enforcement power to mediation. In Korea, at least in Asia, it is prominent in the field of international arbitration, and in the field of cutting-edge technologies such as semiconductors and various 4th industrial revolution industries, Korean companies are in a world-leading position. Based on these points, it is expected that Korean companies will be able to play a driving role in revitalizing Korean mediation under the Singapore Mediation Agreement. This will allow our coordination to play a leading role as an international hub as well. From this point of view, it is necessary for the Republic of Korea to prepare the Mediation Procedure Act (tentative name), which is a domestic implementation law, in order to accept the Singapore Mediation Convention. When preparing the Mediation Procedure Act, the legislative proposals were reviewed from the viewpoint of effectiveness and effectiveness. In preparing the Mediation Procedure Act, from the viewpoint of utility and accessibility, the plan to improve the mediator system through the success of international commercial mediation was reviewed. Also, the introduction of the online coordination system under the Covid-19 Pandemic was reviewed, and the limitations from this introduction were attempted to be solved by grafting Germany s Demail system. In preparing the Mediation Procedure Act, from the viewpoint of strengthening the effectiveness and substantive power, the possibility of harmonization with the domestic enforcement system of the mediation agreement under the Singapore Convention was reviewed, and the requirements for granting the enforcement authority of the mediation agreement were also prepared. In addition, a three-step plan that can grant the enforcement authority of a mediation agreement was reviewed, and the limitations of this three-step plan and supplementary measures were also developed. If the mediation procedural law is prepared from the viewpoint of such utility and accessibility and from the viewpoint of strengthening effectiveness and practical power, I am sure that the Korean mediation will be able to play its role as an international hub by maximizing the merits of the Korean mediation.

Singapore Convention on Mediation and Its Ratification in China

China has signed the United Nations Convention on International Settlement Agreements Resulting from Mediation, namely the Singapore Convention on Mediation, on August 7, 2019, making it possible for China’s domestic courts to resolve international commercial disputes by implementing settlement agreements resulting from international commercial mediation. Relying on the Belt and Road Initiative (BRI), numerous commercial mediation organizations have successively established and integrated mediation into the international commercial dispute resolution mechanism in making effort for the internationalization of China’s commercial mediation system under the background of improving diversified dispute resolution mechanisms. Based on the status quo of commercial mediation in China, this article focuses on the connection and convergence between China’s practice and the principle of the Convention, as well as discusses the rationality for its ratification.

Construction of Cross-border International Commercial Mediation Mechanism Based on Blockchain Technology

With the development of economic globalization, international commercial disputes are increasing day by day, and international commercial mediation has gradually become an important part of the dispute resolution mechanism. At the same time, digital currency, which relies on blockchain technology, has brought unprecedented changes to international commercial exchanges and has been applied in many fields of international commercial affairs. However, there are difficulties in the application of blockchain in international commerce. At present, there is no relevant law to regulate the judicial use of blockchain, which brings risks to CNC security and personal privacy protection. Based on this, this paper aims to study the construction of a cross-border international commercial mediation mechanism based on blockchain technology. First, it analyzes the characteristics of blockchain and international commercial mediation and the advantages of international commercial mediation. Then, through a questionnaire survey of law students from three universities, the deficiencies of China’s International Commercial Mediation mechanism and the difficulties in the application of blockchain in International Commercial Mediation are understood. Finally, according to the survey results, suggestions on the construction of cross-border International Commercial Mediation mechanism based on blockchain technology are put forward. The investigation results show that the application of blockchain in international commercial mediation faces many legal problems, and current international commercial mediation lacks a unified law to regulate the use of blockchain, which will cause some complexity in the application of laws, jurisdiction, and other issues.

Construction of Cross-border International Commercial Mediation Mechanism Based on Blockchain Technology

With the development of economic globalization, international commercial disputes are increasing day by day, and international commercial mediation has gradually become an important part of the dispute resolution mechanism. At the same time, digital currency, which relies on blockchain technology, has brought unprecedented changes to international commercial exchanges and has been applied in many fields of international commercial affairs. However, there are difficulties in the application of blockchain in international commerce. At present, there is no relevant law to regulate the judicial use of blockchain, which brings risks to CNC security and personal privacy protection. Based on this, this paper aims to study the construction of a cross-border international commercial mediation mechanism based on blockchain technology. First, it analyzes the characteristics of blockchain and international commercial mediation and the advantages of international commercial mediation. Then, through a questionnaire survey of law students from three universities, the deficiencies of China’s International Commercial Mediation mechanism and the difficulties in the application of blockchain in International Commercial Mediation are understood. Finally, according to the survey results, suggestions on the construction of cross-border International Commercial Mediation mechanism based on blockchain technology are put forward. The investigation results show that the application of blockchain in international commercial mediation faces many legal problems, and current international commercial mediation lacks a unified law to regulate the use of blockchain, which will cause some complexity in the application of laws, jurisdiction, and other issues.

International Commercial Mediation and Dispute Resolution Contracts

Every transaction has the potential to go wrong and international commercial contracts are not spared this plight. It is when an international commercial contract fails – irrespective of the reasons, that the impact of different legal and cultural backgrounds of the parties come to light. The obvious venue for commercial disputes to be decided is generally understood to be in court (litigation) or before an arbitral tribunal (arbitration). However, there are numerous other alternative dispute mechanisms4 available to parties that are less well known and also deserve consideration; not least because they offer parties methods of resolving the dispute between them in a more time and cost-efficient manner, and with a stronger focus on the commercial interest of the parties. Mediation is one of these mechanisms. This chapter provides an overview of the basic concepts of mediation; how it distinguishes itself from but can also be employed together with other dispute resolution mechanisms such as, in particular, arbitration; the legal framework; and practical guidelines when drafting a mediation agreement in the context of international commercial contracts.

International Dispute Resolution Survey: 2020 Final Report

The International Dispute Resolution Survey: 2020 Final Report presents the findings of the Singapore International Dispute Resolution Academy’s inaugural examination into the preferences, experiences, practices and perspectives of international dispute resolution users around the globe. The survey examined three major international dispute resolution mechanisms: international commercial arbitration, international commercial mediation, international commercial litigation, as well as hybrid dispute resolution mechanisms such as mediation-arbitration and arbitration-mediation. The survey also inquired into the use of technology in international dispute resolution, such as predictive analytical tools and negotiation support systems, and asked the users to express whether they were satisfied with the use of technology. The report summarizes findings from each mechanism in turn and explores the key trends drawn from the data, identifying currents of change that impact international dispute resolution.

Singapore Convention on Mediation: Should Iran Follow the Position of Qatar?

Abstract Following the recent accession of Qatar, the United Nation Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation) will come into force on 12 September 2020. As a Signatory State, Iran is assessing whether to ratify the Singapore Convention. This article illustrates and discusses the challenges and opportunities that Iran and Qatar may face in light of the Singapore Convention. The main focus of this article is on problems facing Iran in relation to the possible ratification of the Singapore Convention. Finally, it determines whether Iran would benefit from the possible implementation. It concludes that, while Qatar may benefit from joining the Singapore Convention, the possible ratification of the Convention in Iran will lead to more challenges than opportunities. For the purpose of developing international commercial mediation in Iran, the UNCITRAL Model Law on Mediation will be an appropriate alternative.

Expanding Asia-Pacific Frontiers for International Dispute Resolution: Conclusions and Recommendations

Asia’s emergence as a global economic powerhouse has corresponded with a prolonged upward trend in international commercial arbitration (ICA) cases involving Asian parties, as well as a belated expansion of investor-state dispute settlement (ISDS) arbitrations involving Asian states or investors. Further accelerating the eastward shift in international dispute resolution, various initiatives to improve support for ICA and ISDS have been taken and alternatives (such as international commercial courts and international commercial mediation) have been promoted. This book aimed to examine significant ‘new frontiers’ for Asia-Pacific cross-border business dispute resolution, focusing on major economies in East and South Asia and countries (such as Australia) that are closely linked economically and geographically. The principal questions posed were: (1) whether existing and new venues for ICA could improve their attractiveness through law reform, case law development, and other measures, despite worries about cost and delay; (2) whether emerging concerns about ISDS-backed investment treaty commitments would prompt Asian states to become rule-makers in international investment law, rather than be mere rule-takers; and (3) whether innovations in existing or new fields might assist the Asia-Pacific region to develop international dispute settlement further. The foregoing chapters have discussed these broad themes, focusing on developments in Australia, Japan, Hong Kong, China, India and Malaysia, while paying attention to broader regional initiatives (such as China’s Belt and Road Initiative (BRI)) and recent international instruments (such as the Singapore Convention on Mediation (entering in force from 12 September 2020 )). This concluding chapter highlights key findings in the individual chapters and identifies some challenges for the post COVID-19 era.

A Study on the main contents and characteristics of the UN Convention on International Settlement Agreements Resulting from Mediation

국제교역의 확대로 국제상사분쟁이 크게 증가하면서 기존 국제소송과 국제중재를 대체할 수 있는 분쟁해결절차로서 국제조정이 새롭게 주목받고 있다. 최근, UNCITRAL에서는 국제조정에 의한 화해합의에 집행력을 부여하는 싱가포르협약을 채택함으로써, 국제조정의 실효성이 크게 높아졌다. 싱가포르협약에서는 ‘조정’에 대한 정의, ‘화해합의’의 ‘서면성’ 요건, 화해합의의 ‘국제성’ 및 ‘상사성’에 관한 내용, 화해합의 원용 위한 요건 등을 주요 내용으로 하고 있다. 싱가포르협약은 국제조정에 관한 최초의 협약이고, 수년간의 국제적인 논의를 거쳐 마련되었다는 점에서 그 성과를 인정받고 있으며, 국제협약으로서 성공 가능성을 기대해 볼 수 있다. 반면, 일부 용어에 대해 명확하지 않은 정의, 조정의 실무와 배치되는 내용의 규정, 조정의 본질인 비엄격성, 자율성의 훼손 등 협약에 대한 우려 역시 제기되고 있다. 이러한 부분은 추후 협약의 수용을 위한 국내 입법 시 깊이 있게 논의되어야 할 것이다. 아울러, 국제조정은 기존 국제중재와 더불어 많은 부가가치를 창출하는 새로운 법률서비스 산업으로 기대를 받고 있고, 싱가포르 등은 이미 조정기관을 설립하여 국제상사조정 사건의 유치에 힘쓰는 등 국제조정 산업에서 주도권을 차지하기 위한 노력을 하고 있다. 국제조정이 비용 및 시간 등 편익을 증진하는 방향으로 국제중재와 함께 검토된다면 기업들의 국제상사분쟁을 해결하기 위한 최적의 분쟁해결제도로서 위상을 확고히 할 수 있을 것이다.Recently, UNCITRAL adopted the Singapore Convention, which gives enforcement power to the settlement agreement by international mediation, greatly increasing the effectiveness of international mediation. The Singapore Convention mainly includes the definition of ‘mediation , the written requirements of ‘settlement agreement , the internationality and the commerciality of the disputes, and the requirements for the application of the conciliation agreement. The Singapore Convention is recognized for its achievements in that it is the first convention on international mediation, and has been prepared after years of international discussion, and one can expect the possibility of success as an international convention. On the other hand, there are parts that are not clearly defined for some terms, regulations that are contrary to the practice of mediation, non-strictness, which is the nature of mediation. These parts will have to be discussed in depth later in domestic legislation for acceptance of the Convention. International arbitration is expected to be a new legal service industry that creates a lot of added value along with existing international arbitration while Singapore and other countries are striving to take the lead in the international mediation industry by trying to attract international commercial mediation cases. Korea should also identify international trends surrounding international coordination and speed up related work to ensure it does not lag behind. International mediation will complement some of the negative aspects that are being raised behind the spread of existing international arbitration which will enhance the benefits of companies as a dispute settlement system to resolve international commercial disputes.

The Singapore Convention for Mediation: From Promotion to Workable Standards by Way of New York

The Singapore Convention for mediation, which will come into force in September 2020, is often compared to the 1958 New York Convention for arbitration. The treaties share the common purpose of giving the force of international law to private means of disputes resolution. Under their terms, courts will enforce arbitral awards and mediated settlement agreements that resolve international commercial disputes. The New York Convention is considered to be the primary driver behind the success of international commercial arbitration. Supporters of the Singapore Convention hope that treaty will lead to similar success for international commercial mediation. While the New York Convention inspired the Singapore Convention and influenced its terms, there are key differences between the instruments and the processes they empower. This article analyzes those differences and considers how international commercial mediation might develop under the Singapore Convention from this vantage point. The analysis has implications for participants in mediations, courts applying the convention, and states considering whether to accede to the convention and make treaty reservations. The conclusion offers three broad prescriptions that would enhance the practical benefit of the convention beyond its value as a tool of promotion.

Enforcing the Outcome of International Commercial Mediation Vis-À-Vis Singapore Convention on Mediation.

Enforcing the Outcome of International Commercial Mediation Vis-À-Vis Singapore Convention on Mediation.

국제상사조정제도의 활용에 관한 연구 - 조정에 관한 싱가포르협약을 중심으로-

국제상사조정제도의 활용에 관한 연구 - 조정에 관한 싱가포르협약을 중심으로-