CAA Newsletter

The Singapore Convention and Contributions of Academics and Experts From Taiwan


Professor Rajesh Sharma (Senior Lecturer, Global, Urban and Social Studies, RMIT University)
 
The UN Convention on the Enforcement of the International Commercial Settlement Agreements Resulting From Mediation (the Singapore Convention) was open for the signature on 7 August 2019 in Singapore in an amazingly organized ceremony which was attended by several government representatives and Mediators from around the world. A total of 46 countries signed the Singapore Convention on that day including China. As expected in the list of signatories Taiwan was missing and so as the names of Hong Kong and Macao. Nevertheless, academics and professionals from Taiwan played a very constructive role in the shaping of the Singapore Convention and this cannot be ignored when the history of drafting of the Singapore Convention will be written or recalled later.
 
On 30 May 2014, the USA proposed to the UNCITRAL (A/CN.9/822) to develop a Convention for the enforcement of settlement agreements resulting from international commercial mediation at a highest priority in the next coming session in Vienna in September of the same year. Even before the proposal of the USA, in Taiwan Professor Chang-fa Lo and Professor Winnie Ma already organized two conferences and one colloquium on this specific issue (they call it iMSA project) since 2012. They even drafted a “Convention on Cross-Border Enforcement of International Mediated Settlement Agreements” which was published in November 2014 in the Contemporary Asia Arbitration Journal. When UNCITRAL was not even sure about the future on its work plan in response to the US proposal, an instrument was already drafted in Taiwan. However, this work of art by these two legal experts were not widely known or circulated at that time.
 
In 2014-15 I was doing a small project for UNCITRAL with regards to evaluating the mediation law of Asia to find whether Mediation laws of Asia could be considered as Model Law countries which have followed the UNCITRAL Model Law on Conciliation. I started this project when I was in Hong Kong in 2014 and the next year I moved to Melbourne Australia and completed my project and submitted my report in 2015. By that time, in UNCITRAL the work on the instrument related to enforcement of mediated settlement already started and I had knowledge of the development. In 2016, I met Professor Lo in Sydney in a conference. During lunch break we sat together, and we discussed about our current work and research. I informed him about my work in the field of mediation in the context of UNCITRAL. Then he informed me about his work and the Draft Convention which he already completed with Professor Ma. I was pleasantly surprised because I was invited to give expert comments on a draft prepared by UNCITRAL for discussion in the next session in September 2016. Then and there I solicited his approval to share his draft Convention with the UNCITRAL and also to join me in the submission of his comments on the Draft instrument prepared by UNCITRAL. He immediately agreed and he also suggested to include Professor Ma in this joint response. After our meeting in Sydney, I visited Taiwan for the annual Arbitration Conference organized by Professor Lo and there we had more discussion on our response.
 
In early September 2016, we submitted our joint response on UNCITRAL draft along with the Draft Convention prepared by Professor Lo and Professor Ma. Our submission was welcomed by UNCITRAL and UNCITRAL further shared our comments and Draft Convention of Professor Lo and Professor Ma with the US representative Mr. Timothy Schnabel and the Chair of the Working Group and the delegate from Singapore Ms. Natalie Morris Sharma.  In reply, the US representative mentioned that “My thanks for providing these very helpful comments; I will happily share them informally with a number of other delegates. (Luckily, I had encountered the article by Professors Lo and Ma a year or two ago.) The continued attention to this project is very encouraging—I hope it bodes well for the instrument we are developing.” UNCITRAL representative also mentioned that “as part of our research for the preparation of an instrument on enforcement of settlement agreements, we came across the draft convention”.  These comments prove one point that the work done in Taiwan by Professor Lo and Professor Ma was noticed and appreciated.
 

After the text of the Singapore Convention was approved people from around the world whether they were involved in the negotiation of the text or not started writing informative opinion about the Convention. One Academic/expert Ms. Eunice Chua in her paper (The Singapore Convention on Mediation — A Brighter Future for Asian Dispute Resolution Asian Journal of International Law, doi:10.1017/S2044251318000309) has extensively relied the Draft prepared by Professor Lo and Professor Ma to draw the comparison and contrast with the Singapore Convention.
 
Drafting of the Convention was an intellectual work which requires lots of legal and policy harmonisations. At UNCITRAL level many experts joined together to draft the text. But in Taiwan only two people dared to draft a convention. The final text of the Singapore Convention may not reflect wordings and text of the draft prepared by academics and experts from Taiwan but such contributions raised the discussion at the UNCITRAL level. Moreover, this draft represented an Asian view which was not vocally said but tacitly it was acknowledged by all and it will remain noticed in the future. This exercise also teaches us that a good idea must be promoted and there is no reason why a good idea based on academic research and expertise from Taiwan cannot be accepted or appreciated. 
 
I can say that Professor Lo always think in advance not in terms of days but even it terms of years. For example, in 2012 he conceived the idea of drafting a Convention. Similarly, two years in advance (in 2017) he foresaw the impending problem in the WTO Appellate Body (AB) and he set up a group of academics from Taiwan and elsewhere (I am also part of that group) to draft an Agreement to Establish Asia-Pacific Regional Mediation Organisation (ARMO) to deal with the State-to-State disputes through mediation. In this regards, under his leadership an effective, efficient and practical Mediation Rules have also been drafted. If the WTO AB crisis is not averted by December 2019 then States have to look for an alternative forum to resolve their disputes. In that situation, the Agreement of ARMO and Mediation Rules of ARMO will become handy. Or at least, this work of Professor Lo could serve as the starting point of consideration. At the very minimum ARMO could provide a platform to resolve disputes through mediation.
 
The commitment of Professor Lo and Professor Ma for mediation has been continuing since 2012. Their forward-looking thinking and proposing concrete solution to a legal challenge faced by the world cannot be underestimated. We hope to see many more professional contributions of  Professor Lo and Professor Ma in the future.  




 


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