© 2024 Eric S. Sherby
Regardless of one’s political leanings, there is probably unanimity that the United States Senate does not rush to ratify a unilateral treaty merely because an administration (Democratic or Republican) decided to sign it. Rather, the U.S. Senate traditionally takes the time necessary to consider the pros and cons of any proposed treaty and resists pressure to ratify merely because other countries have done so.
The recent decision by Israel’s Knesset to adopt the Singapore Convention on Mediation makes me wish that the American level of deliberation could “rub off” on Israel.
The Singapore Convention is a highly flawed international agreement. In the fall of 2020, the American Bar Association published an article of mine, entitled “The Singapore Convention: The Emperor’s New Clothes of International Dispute Resolution.” The article was published in the International Dispute Resolution Newsletter (under the sponsorship of five ABA committees).
My article argues as follows:
A. There is little empirical evidence of a genuine need for a multilateral treaty governing the enforceability of settlement agreements arrived at through mediation; the anecdotal evidence indicates that there is no such need;
B. Experienced international practitioners know that such a convention is superfluous. Settlement agreements that contain three key provisions – (i) an escrow mechanism, (ii) an arbitration clause, and (iii) a “further documents” clause – virtually never require court proceedings (other than enforcing an arbitral award, under the New York Convention) in order to be enforced. The use of these three tools renders the Singapore Convention completely superfluous;
C. Article 5, section 1 of the Singapore Convention will harm the international enforcement of mediated settlement agreements. Article 5, Section 1 authorizes a court in the state in which enforcement is sought to consider the mediator’s “breach” of applicable standards as a possible defense to enforcement:
i. The “mediator misconduct” defense invites recalcitrant disputants to raise the issue of mediator misconduct in an inconvenient forum; and
ii. The convention should have required the court in the state in which enforcement is sought to consider such defense only if the court also considers the issue of good faith reliance by the party that seeks enforcement. The convention is inexplicably silent on the issue of good faith reliance;
D. The convention’s exclusion provision regarding “employment law” is drafted in a manner likely to encompass disputes other than those between an employer and an employee. Such flaw could have been avoided if the Singapore Convention had used (more restrictive) language similar to that used in the Hague Choice of Court Agreements Convention.
Although my article was obviously controversial, and even though it was disseminated to the entire Dispute Resolution division of the ABA’s International Section (which includes dozens of mediators), almost four years later, the Editorial Board of the ABA’s International Dispute Resolution Newsletter has not received even a single piece attempting to rebut (any of) my critiques of the Convention.
What has been the reaction to the publication of the article?
Professor Bryan Clark also published an article critical of the Singapore Convention, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3720979 . After Professor Clark reviewed a copy of my article, he wrote to me as follows:
I think your analysis here is incredibly insightful particularly around the breach of mediator standards provision which is open to real exploitation. I agree with you about the potential absurdity of these arguments being heard in fora with no connection with the mediator concerned and . . . I do see the potential in fact for more problems with enforcement because these stated grounds for relief may concentrate the minds of parties and their lawyers of the potential to challenge agreements reached. . . . It is refreshing to see another piece taking a more critical and considered view of the Convention . . .
(emphasis added).
Subsequently I received additional feedback, from other ADR specialists (from different legal systems), including:
a) Rom Chung (Hong Kong, experienced arbitrator, mediator, and governmental advisor) has stated that my article makes “profound arguments” and is a “masterpiece of keen in-depth analysis of the issues.”
b) Gabor Farkas (Geneva) of the Swiss Chamber of Commercial Mediation, has stated that my article is “brilliant” and that he “fully support[s my] analysis and … conclusions.”
c) Konstantin Voropaev (Russia, experienced in-house corporate attorney) has stated that my “in depth analysis” of the Singapore Convention leaves him “astonished that [its] deficiencies had not already been addressed by ADR professionals.”
A few weeks after the ABA published my article critical of the Singapore Convention, I was contacted by a European lawyer who serves in a leadership position in an alternative dispute resolution organization. That lawyer extended an invitation to me to speak to his organization regarding my criticisms of the Singapore Convention. Days later that lawyer reached out to me to retract the invitation. He explained that one of his colleagues who also serves in a leadership role in that ADR organization had been instrumental in drafting the Singapore Convention and expressed his opposition to their organization giving a voice to anyone critical of the Singapore Convention.
Upon hearing of the cancellation of the invitation to share criticism of the Singapore Convention, I concluded that the title “The Emperor’s New Clothes of International Dispute Resolution” was even more appropriate than I had initially realized.
Shortly after my article was published, (a) the Israel Institute of Commercial Arbitration asked me to publish, on its Facebook page, a Hebrew synopsis of my article, and (b) the World Arbitration and Mediation Review contacted me to request that I consider submitting a follow up piece to that journal regarding my criticism of the Singapore Convention (which I expect to complete soon).
As an American-Israeli lawyer, I am obviously disappointed that Israel’s legislature blindly signed on to an international convention that is both superfluous and likely to cause harm to the international enforceability of settlement agreements. I remain hopeful that the Senate of the United States will continue to reject such path.