Author: Timothy Schnabel*
Published: March 2020
Grounds for Refusal of Enforcement
States as Parties
Description: The Singapore Convention on Mediation (more formally titled the United Nations Convention on International Settlement Agreements Resulting from Mediation) is a new multilateral treaty produced by the U.N. Commission on International Trade Law (UNCITRAL). The Convention contains a framework for the cross-border recognition and enforcement of mediated settlements, designed to provide mediation with an analogue to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Convention opened for signature on August 7, 2019, with a record 46 countries (including the United States) signing on that day and five more signing in the next few months. Thus, countries need to begin considering how to implement the Convention’s obligations in their domestic law.
This article addresses the important question of implementation from the perspective of United States law and practice, seeking to identify the most appropriate method for U.S. implementation of the Singapore Convention by situating it among other private law treaties, for which implementation has been pursued in one of three ways. First, for some private law treaties, clarification has been needed regarding the treaty’s interaction with existing federal law or uniform state law. In such cases, federal legislation to implement the treaty has been used (or proposed) to integrate the treaty’s rules with the earlier statutory regime. Second, some private law treaties may be perceived to alter the balance between state and federal law significantly enough that a cooperative federalism approach—incorporating both state and federal legislation using conditional preemption—may be seen as the most prudent course for implementation. Third, any other private law treaties not falling into either of the first two categories have been treated as self-executing.
*Former U.S. head of delegation to UNCITRAL’s Working Group II. Although the author proposed and negotiated the Singapore Convention on behalf of the United States, this article expresses his personal views and should not be read as representing the views of the U.S. Department of State nor of the Uniform Law Commission. The author would like to thank Ron Brand, Bill Henning, David Stewart, and Stacie Strong for comments on earlier drafts of this article. All remaining errors are solely the responsibility of the author. Finally, the author would like to express his gratitude for the leadership exerted on these issues by John Kim, who during his time as Assistant Legal Adviser for Private International Law spearheaded an unprecedented initiative on U.S. domestic implementation of private law treaties that resulted in ratification of the Hague Securities Convention and transmittal of four other private law treaties to the Senate (one of which recently received advice and consent, although sadly too late for John to be present for that achievement).