Challenges of Executive Support for Settlement Agreements Reflected in Arbitration Award with a Comparative Study in the New York Convention 1958

Document Type : Original Article

Authors

1 Assistant Professor of Law Ferdowsi University of Mashhad

2 Ph.D. Candidate of Private Law, Ferdowsi University of Mashhad

10.29252/jlr.2021.185350.1727

Abstract

Mediation, as one of the well-known and old methods of dispute resolution, unlike arbitration and litigation, does not have enforceable results in international cases. Notwithstanding of the ratification of the United Nations Convention on International Settlement Agreements Resulting from Mediation, due to its young age and a small number of members, it has not yet been able to overcome the important shortcoming of Mediation, namely the lack of compulsory enforceability. So one way to give enforceability to a settlement is to insert it into an arbitration award so that the executive support of the New York Convention can be exploited. On the other hand, due to the consensual nature of the mediation and the adversarial nature of the arbitration, there are questions and problems with the possibility of applying the New York Convention to the conciliations reflected in the arbitration award. These problems are mentioned in these clauses in the present article: "possibility of the non-existence of arbitration agreement", "lack of dispute between the parties", "possibility of violation of the defense rights of the parties ", and "exceeding the limits of the arbitrators' authority", "lack of seat for an arbitral award", "lack of some arbitration standards, including reasoning". Finally, this article concludes that it is certainly not possible to guarantee the enforcement of an arbitration award that reflects conciliation between the parties under the New York Convention, but it is possible to increase the chance of enforcement of such an arbitration award by applying some considerations in the proceedings.
 

Keywords

Main Subjects

References

  1. Books

    1. Chern, C. Dispute Resolution Guides: International Commercial Mediation, First ed, London: Informa Law. 2008.
    2. Gaillard, E.; Di Pietro, D. What Constitutes an Arbitral Award Under the New York Convention?, Enforcement Of Arbitration Agreements And International Arbitral Awards: The New York Convention In Practice, First Ed. London: Cameron May. 2008.
    3. MustIll, M.J; Boyd, S.C. The Law and Practice of Commercial Arbitration in England, 2nd ed, London: Butterworths. 1989.
    4. Nigmatullina, D. Combining Mediation and Arbitration in International Commercial Dispute Resolution, First Ed, New York: Routledge. 2019.
    5. Zekos, G. International Commercial and Marine Arbitration, First Ed. New York: Routledge-Cavendish and Taylor & Francis e-Library. 2008.

     

    Articles

    1. Chahine, J.; Lombardi, E.; Lutran, D; Peulvé, C. “The Acceleration of the Development of International Business Mediation after the Singapore Convention”, Wolters Kluwer (Wolters Law International), 4, 2020.
    2. Chua, E. “Enforcement Of International Mediated Settlements Without The Singapore Convention On Mediation”, Singapore Academy of Law Journal, 31, 2019.
    3. Deason, E.“Combinations of Mediation and Arbitration with the Same Neutral: A Framework for Judicial Review”, Yearbook on Arbitration and Mediation, 5, 2013.
    4. Edna S. “The Final Step: Issues in Enforcing the Mediation Settlement Agreement in Contemporary Issues in International Arbitration and Mediation’, The Fordham Papers Martinus Nijhoff Publishers, 2008: 24.
    5. Herisi, A.; Wendy, T. "Aftermath of the Singapore Convention: A Comparative Analysis between the Singapore Convention and the New York Convention." American Journal of Mediation, 12, 2019.
    6. Kryvoi, Y.; Davydenko, D. “Consent Awards in International Arbitration: From Settlement to Enforcement”, Brooklyn Journal of International Law, 40, 2015.
    7. Ma, W. "Enforcing Mediated Settlement Agreements under the New York Convention: From Controversies to Creativities," Contemporary Asia Arbitration Journal (CAA Journal,) 7, 2014.
    8. Ming, C; Iovene, C. “Advantages and Benefits of the Revised Swiss Rules of Mediation 2019 – in Light and in Line with the Singapore Convention”, ASA BULLETIN, 382, 2020.
    9. Morris-Sharma, N. “Constructing The Convention On Mediation The Chairperson’s Perspective”, Singapore Academy of Law Journal, 31, 2019.
    10. Newmark,, Hill, R. “Can a Mediated Settlement Become an Enforceable Arbitration Award?”,Arbitration International Law Journal, 83, 2000.
    11. Resnick, J. "Uncovering, Disclosing, and Discovering How the Public Dimensions of Court- Based Processes Are At Risk", Chicago-Kent College of Law Review, 81, 2006.
    12. Rosoff, J. “Hybrid Efficiency in Arbitration: Waiving Potential Conflicts for Dual Role Arbitrators in Med-Arb and Arb-Med Proceedings”, Journal of International Arbitration, 26, 2009.
    13. Ross, D. “Med-Arb/Arb-Med: A More Efficient ADR Process or an Invitation to a Potential Ethical Disaster?”, Contemporary Issues in International Arbitration and Mediation: The Fordham Papers, 1, 2012.
    14. Schnabel, T. “Implementation Of The Singapore Convention: Federalism, Self-Execution, And Private Law Treaties”, American Review of International Arbitration, 30, 2019.
    15. Schnabel, T. “The singapore convention on mediation: framework for the cross-border recognition and enforcement of mediated settlements”, Pepperdine Dispute Resolution Law Journal, 19, 2019.
    16. Senties, H. "Grounds to Refuse the Enforcement of Settlement Agreements under the Singapore Convention on Mediation: Purpose, Scope, and Their Importance for the Success of the Convention.", Cardozo Journal of Conflict Resolution, 20, 2019.
    17. Serbenco, E. "Bargaining in the Shadow of Arbitration: When Mediation Settlements become Enforceable Arbitral Awards," Romanian Journal of International Law ,14, 2012.
    18. Silvestri, E. “The Singapore Convention On Mediated Settlement Agreements: A New String To The Bow Of International Mediation?”, Access To Justice In Eastern Europe Journal, 4, 2019.
    19. Steele B. "Enforcing International Commercial Mediation Agreements as Arbitral Awards under the New York Convention", UCLA Law Review, 54, 2007.
    20. Strong, S.I. “Beyond International Commercial Arbitration? The Promise of International Commercial Mediation”, Washington University Journal of Law and Policy, 21, 2014.
    21. Sussman, E. "The New York Convention through a Mediation Prism." Dispute Resolution Magazine, 15, 2009.
    22. Sussman, E. “The Final Step: Issues in Enforcing the Mediation Settlement Agreement in Contemporary Issues in International Arbitration and Mediation’, The Fordham Papers Martinus Nijhoff Publishers, 2008
    23. Treichl, C. “The Singapore Convention: Towards a Universal Standard for the Recognition and Enforcement of International Settlement Agreements?”, Journal of International Dispute Settlement, 20, 2020.
    24. Wolski, B, "Enforcing Mediated Settlement Agreements (MSAs): Critical Questions and Directions for Future Research", Contemporary Asia Arbitration Journal (CAA Journal), 7, 2014.
    25. Wolski, B. “Arb-Med-Arb (and MSAs): A Whole Which Is Less Than, Not Greater Than, the Sum of its Parts?”,Contempory Asia Arbitration Journal, 249, 2013.

     

Files

History

  • Receive Date: 20 September 2020
  • Revise Date: 01 June 2021
  • Accept Date: 26 August 2021

Share

How to cite

Statistics