The Singapore Convention on Mediation: The UK’s Serious Commitment to ADR

Following the public consultation on the United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention on Mediation”), which ran from 2 February to 1 April 2022, the UK Government signed the treaty on 3 May 2023. Once the UK has implemented the Convention into domestic legislation and deposited the instrument of ratification, it will enter into force six months later as provided in Article 14.1 of the treaty. To date, 56 countries have signed the Singapore Convention, and 11 of the signatories have also ratified it.

The Singapore Convention on Mediation was adopted by UNCITRAL in 2019 as a multilateral treaty providing a uniform and efficient framework for the enforcement and invocation of international settlement agreements resulting from the mediation of commercial disputes. Mediation is the most common form of alternative dispute resolution (ADR) and probably the quickest way of resolving disputes. As for the settlement of disputes, a neutral third party facilitates a negotiated agreement without any decision-making power.

There is a tendency in the UK to stimulate parties to mediate their arisen or potential disputes instead of litigating in courts, therefore, to immerse mediation as an integral step in the court process. In this regard, the Ministry of Justice’s Call for Evidence on Dispute Resolution in England and Wales set out the goals of the civil justice system to integrate dispute resolution processes, including resolving disputes consensually through mediation. Following this, the Government made proposals on the automatic/mandatory mediation of civil disputes valued up to £10,000 by Her Majesty’s Courts and Tribunals Service (HMCTS) as part of the court process. The latter is at the consultation stage.  

By signing the Singapore Convention, the UK has demonstrated its serious outlook for becoming a leader in the promotion of mediation as an essential part of the civil justice system. In the absence of such an international treaty, there is a process to be followed for a settlement agreement to get enforced. A party would need to make a claim for breach of contract and get a judgment that is to be enforced first unless the terms of the settlement have been recorded in a “Tomlin order”.

With the UK’s membership to the Singapore Convention, international mediation agreements or iMSAs (settlement agreements qualifying under the Convention) as well as settlements will become directly enforceable without any further need to issue a claim for breach of contract or to litigate the case on the merits. Having the Singapore Convention together with the New York Arbitration Convention and Hague Convention on Choice of Court Agreements in its armoury will enhance the UK’s credibility as an attractive dispute resolution hub as well as promote its relations with global trading partners. Furthermore, membership in these fundamental Private International Law instruments will also have serious Brexit implications. Needless to say, the UK’s plans to ratify the Hague Judgments Convention significantly contribute to these ends (for more on this see the blogpost here: The Ball is Rolling: The UK to ratify the Hague Judgments Convention? – The Institute of International Shipping & Trade Law (IISTL) Blog.

The Ball is Rolling: The UK to ratify the Hague Judgments Convention?

On 15 December 2022, the UK government published a public consultation paper on the possible ratification of the Hague Judgments Convention 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (HJC). With the UK-wide call open in all three jurisdictions by 9 February 2023, the Government is seeking expert views from practitioners, academics, businesses, and any other persons with an interest in or who may be affected by cross-border civil and commercial litigation in the UK on its very welcome plan to become a Contracting State to the Convention. Besides the open call and public responses, the officials including experts from the Lord Chancellor’s Advisory Committee on Private International Law will get involved in the consultation before the publication of the outcomes.

The Hague Conference on Private International Law (HCCH) adopted the HJC on 2 July 2019 – 27 years after the initial proposal of a mixed instrument covering both jurisdiction and recognition and enforcement rules. Indeed, to guarantee the effectiveness of court judgments similar to what the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) ensured for arbitral awards, the HJC has become a game-changer in the international dispute resolution landscape. As the HCCH announced, “the Convention will increase certainty and predictability, promote the better management of transaction and litigation risks, and shorten timeframes for the recognition and enforcement of a judgment in other jurisdictions.”

In August 2022, with the subsequent ratifications of the Convention by the EU and Ukraine, its entry into force became a long-awaited reality and indeed, the Convention is about to enter into force from 1 September 2023 (see my earlier blog post here: Hague Judgments Convention to enter into force! – The Institute of International Shipping & Trade Law (IISTL) Blog).

As the jurisdiction is well-known for its strong legal traditions and robust private international law rules, the UK instantly enhances its routes of international judicial cooperation to ensure certainty and predictability for citizens and businesses involved in cross-border commercial relationships. Most likely, the EU’s opposition to the UK’s application to ratify the Lugano Convention will impede the ratification of the HJC for the provision of continuing civil judicial cooperation.

The HJC provides recognition and enforcement of judgments given in civil and commercial cases excluding the carriage of passengers and goods, transboundary marine pollution, marine pollution in areas beyond national jurisdiction, ship-source marine pollution, limitation of liability for maritime claims, and general average. As a complementary instrument to the Hague Convention on Choice of Court Agreements 2005 (HCCCA), the HJC shares the same goals to ensure commercial certainty and access to justice, serve legal certainty and uniformity by providing free circulation of judgments and parties’ autonomy, also, advances multilateral trade, investment, and mobility. The HJC also aims at judicial cooperation and recognition and enforcement of judgments given by the courts designated in the parties’ agreement, other than an exclusive choice of court agreement whereas the HCCCA applies to exclusive jurisdiction agreements and resulting judgments.

The HJC is the only global instrument for mutual recognition and enforcement of judgments in civil and commercial disputes. It will significantly contribute to legal certainty in the post-Brexit era with its sister instrument HCCCA. Indeed, it is the UK’s turn to take appropriate measures to accede to the treaty for facilitating the free movement of judgments in civil and commercial cases between the UK and the EU.

Following the analysis, the Government will make its final decision on becoming a Contracting State to the HJC and on whether to make any reservations. If signed and ratified, the Convention would be implemented in domestic law under the terms of the Private International Law (Implementation of Agreements) Act 2020, subject to appropriate parliamentary scrutiny. As provided in Articles 28 and 29 of the HJC, the Convention would enter into force for the UK 12 months after the date it deposits its instrument of ratification.

Further details of the paper and consultation questions are available here: Consultation on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague 2019) – GOV.UK (www.gov.uk).

Peripatetic seamen and the Pensions Act 2008

In The Queen (on the application of Fleet Maritime Services (Bermuda) Ltd) v The Pensions Regulator [2015] EWHC 3744 (Admin) it has been held that the Pensions Act 2008, requiring automatic enrolment of workers into a pension scheme, does not apply to seafarers who began and ended their tours of duty outside the UK, and who spent most if not all of those tours of duty outside the UK, although they travelled to and from the UK at the start and end of their tours of duty .