Book review by Michael Leathes. Book by Nadja Alexander and Shouyu Chong. Article published by Wolters Kluwer, October 2019
This is a review of the book The Singapore Convention on Mediation: A Commentary, by Nadja Alexander & Shouyu Chong
Anyone managing international business disputes needs to understand the Singapore Convention on Mediation. Not just its terms and limitations, but the reasons why certain matters are included and why others are omitted, as well as how to interpret and apply it. All mediated business settlements with an international angle that are concluded from now on need to take account of this Convention and assume its widespread ratification. In about 200 pages, this work covers all the principles and details we need to negotiate and draft international mediated settlement agreements, or iMSAs.
Because by their nature iMSAs are consensual, they tend to endure. But there’s always the risk that parties in different jurisdictions fail to perform or respect them. Enforcing commercial agreements in a jurisdiction that does not apply the law of the contract, is always challenging. It’s a key reason why companies embroiled in international disputes hesitate to mediate, often preferring an arbitral award that can be enforced practically anywhere under the New York Convention. The Singapore Convention on Mediation of 2019 sets out to correct the enforcement dilemma for iMSAs. It will thereby strongly encourage more international mediations and iMSAs.
Authors Nadja Alexander and Shouyu Chong do not make the error of assuming the reader’s familiarity with mediation or private international law. The Convention’s context and application are clearly and comprehensively explained. The background, including the deliberations of UNCITRAL’s Working Party II which negotiated and drafted the Convention, is fully covered. The Convention itself is set out in the first Annex, but the book devotes an entire Chapter to each of the Convention’s 16 Articles. Every critical term is forensically analysed and interpreted. The book is replete with enlightening commentary and practical case examples. For example, there is an explanation for why Mediation Agreements (i.e. agreements by which parties undertake to resolve a dispute by mediation) are not covered by the Convention when agreements to refer disputes to arbitration are covered by the NY Convention. Relevant case law is mentioned as a guide, the case studies are relevant and practical and the book effectively steers the reader on what to consider when negotiating a settlement in an international commercial mediation.
A default enforcement Convention is not just about how and when it applies, but also when it doesn’t. Article 5 (Grounds for Refusing to Grant Relief) may be only a page long with just eight specified grounds, but the authors have rightly taken 60 pages of commentary, and ten case examples, to explain and illustrate it in detail. There is full treatment of the Convention’s direct enforcement mechanism and how it applies by default to any iMSA without requiring the parties to consciously opt into its application. But the authors also explain why and how parties may opt out of the Convention in their settlement agreement.
This book explores the achievements and limitations of this Convention and addresses its scope and interpretation. Litigators, including those familiar with the New York Convention on Arbitration, may be less acquainted with mediation. For them, the book explains the reasons why there is no provision for a “seat” of mediation, and why, to the dismay of many (and unlike the New York Convention), the Convention excludes contractual mediation clauses and Mediation Agreements.
This thorough book is enlightening, practical, clear and readable. It is both a reference work and, in a way, a storybook. As international commercial disputes become more frequently mediated than litigated or arbitrated, The Singapore Convention: A Commentary is essential knowledge for every party, practitioner and dispute resolver. The authors have done an outstanding job.
Nadja Alexander is a Professor of Law and Director of the Singapore International Dispute Resolution Academy (SIDRA) at the Singapore Management University. She is a Senior Fellow of the Dispute Resolution Institute at Hamline University in the United States.
Nadja Alexander is an award winning author (2020, 2011) and educator (2018, 2007, 1997), and >has been recognized as a global thought leader in the field of mediation (Who’s Who Legal). She has been engaged in diverse dispute resolution settings in more than 40 countries.
Shouyu Chong, LLM (National University of Singapore) is a PhD Research Student at the Centre of Construction Law and Dispute Resolution, The Dickson Poon School of Law, King’s College London. He was formerly a Research Associate at Singapore International Dispute Resolution Academy. He researches on private international law and cross-border dispute resolution mechanisms, including litigation, arbitration and mediation, and has been published internationally. He is funded by the Centre of Construction Law and Dispute Resolution, as well as the Society of Construction Law, to research on jurisdiction and arbitration clauses in King’s College London. He continues to research and write extensively on the Singapore Convention on Mediation.
Michael Leathes is a former in-house counsel and in that capacity a frequent user of mediation services. After retiring in 2007, Michael helped establish the International Mediation Institute (IMI) as a charitable institution and served in a pro bono capacity as the first Executive Director of the IMI. He stepped down from the IMI Board in 2015. Michael is the author of Negotiation: Things corporate counsel need to know but were not taught (Wolters Kluwer, 2017).