From my colleague, Professor Ellen Deason:
Last week, UNCITRAL (United Nations Commission on International Trade Law) Working Group II (Arbitration and Conciliation) met in New York at the United Nations. I was privileged to attend as an observer sponsored by the Private International Law Interest Group of the American Society of International Law. Thank you PILIG!
One of the main items on the agenda was the enforcement of settlement agreements resulting from conciliation proceedings (with conciliation defined as equivalent to mediation). In order to encourage the use of mediation in cross-border cases, the United States delegation to the Working Group proposed that UNCITRAL develop a convention on the enforcement of settlement agreements resulting from international commercial conciliation. They suggested modelling this convention on the highly successful 1958 UN Convention on Recognition and Enforcement of Arbitral Awards (the New York Convention).
The Working Group debated the proposal and the feasibility of moving forward for two days. It decided to suggest to the Commission that the Working Group continue to consider a convention. In the words of a draft report on its deliberations, the Working Group will seek a broad mandate “to work on the topic of enforcement of settlement agreements, to identify the relevant issues and develop possible solutions, including the preparation of a convention, model provisions or guidance texts.” The Commission will consider the Working Group’s recommendation at its next meeting, in July 2015, and then the Working Group is scheduled to meet in September in Vienna.
Reaching agreement on the issue of enforcement of mediated settlement agreements has proved difficult in the past. Neither the 2002 UNCITRAL Model Law on Conciliation nor the Uniform Law Commission’s Uniform Mediation Act (now adopted in 12 U.S. jurisdictions) contains an enforcement provision. The language of the Working Group’s recommendation reflects this difficulty – although many delegations were supportive of developing a convention and thought it would be feasible to do so, some delegations called for a greater definition of the problem, and others urged consideration of vehicles other than a convention.
The Working Group operates by consensus. It was fascinating from a dispute resolution perspective to see how the Chair was able to define issues and articulate a consensus to proceed with deliberations from the diverse viewpoints expressed by the distinguished delegations.
The issues voiced by delegations with regard to developing a convention reflected a wide variety of perspectives associated with different legal cultures. They included whether a convention would limit the flexibility that is the hallmark of mediation; conceptual and practical difficulties in distinguishing enforcement of settlement agreements resulting from mediation from those reached without third-party assistance, and more generally from ordinary contracts; how an international instrument would interact with domestic legislation on conciliation; enforceability of non-monetary provisions in agreements in light of certain domestic restrictions on such enforcement; and the potential need for a control mechanism such as an authentication of a settlement agreement as a prerequisite to an international enforcement procedure.
There was general agreement that any convention should be simple, but questions as to whether the New York Convention is the best model for a conciliation convention. Certainly the grounds to avoid enforcement of arbitral awards would need to be adapted to the different situation of conciliation. There was also a suggestion that in order to respect party autonomy consent should be required to make any settlement agreement directly enforceable, and a related discussion of structuring an opt-in or opt-out system.
The Working Group devoted the second half of the week to revising the UNCITRAL Notes on Organizing Arbitral Proceedings. This is an update to reflect the 2010 revision of the UNCITRAL Arbitration Rules and developments in the practice of arbitration since the original notes were adopted in 1996. The notes are not intended to prescribe best practices, but rather to provide information for both arbitrators and parties in a way that reflects the global diversity in arbitration proceedings.
