Singapore Convention on Mediation Bill

Order for Second Reading read.

6.11 pm

The Senior Minister of State for Law (Mr Edwin Tong Chun Fai) (for the Minister for Law): Mr Deputy Speaker, on behalf of the Minister for Law, I beg to move, "That the Bill be now read a Second time."

Sir, this Bill implements the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation.

One of Singapore’s strengths lies in our being a vibrant international business and commercial hub that is open and connected to the world. We must continue to be so, to ensure that our economy remains vibrant and growing, amidst global uncertainties and disruptions.

Against this backdrop, one key area of focus in my Ministry's work has been to strengthen Singapore's legal and dispute resolution framework, to better serve the needs of international businesses that use Singapore as a base for their international commercial transactions. Singapore is one of the leading cross-border dispute resolution centres in the world and undergirding this is our trusted legal system and a strong rule of law. We also provide a comprehensive suite of international dispute resolution services to meet the varying needs of businesses. These include litigation, arbitration and increasingly mediation.

As part of efforts to strengthen our dispute resolution ecosystem, Singapore has invested in the development of international commercial mediation, including through building up institutions, developing capabilities and also updating our laws. For instance, the Mediation Act was enacted in 2017 to establish a framework for mediation, and to provide a more conducive environment in Singapore for international commercial mediation.

In the same vein, the Singapore Convention Signing Ceremony and Conference held in August last year was an important milestone for Singapore’s efforts in developing the dispute resolution landscape, on at least two levels. First, on a broader level, the Convention demonstrated Singapore’s thought leadership in international rule of law efforts and helped raise our position as an international dispute resolution hub to a new level.

Let me bring Members briefly through the steps which gave rise to the Convention. In February 2018, the UN Commission on International Trade Law or UNCITRAL Working Group on Dispute Settlement finalised the text of the Convention and the corresponding Model Law. Singapore contributed significantly to the development of the Convention at UNCITRAL. The Working Group was chaired by a Singaporean, and the Singapore delegation participated actively in the negotiations. Local industry experts were involved in shaping Singapore’s positions on the Convention, and also played an active role in contributing to the final outcome.

It took only three years – between 2015 and 2018 – to conclude an instrument dealing with enforcement of international settlement agreements resulting from mediation, when several past attempts failed. This exhibited the Working Group’s dedication to constructive and open dialogue in the face of numerous delegations coming from different backgrounds and having different perspectives. This is really, the same spirit of mediation that the Convention itself seeks to encourage.

On 20 December 2018, the UN General Assembly, in a momentous decision, adopted the Convention. It also authorised the signing of the Convention to be held in Singapore and authorised the Convention to be known henceforth as the “Singapore Convention on Mediation”. This is the first treaty named after Singapore among those concluded under the auspices of the United Nations, and bears testament to our extensive contributions to the development of international commercial mediation globally.

On 7 August 2019, the Singapore Convention Signing Ceremony and Conference was held in Singapore. Singapore hosted more than 1,500 delegates from 70 countries at the event. Forty-six countries signed the Convention on the day it opened for signature, while another 24 countries attended the signing ceremony to show their support for the Convention. The signatories included the world's two largest economies – the US and China; three of Asia's four largest economies – China, India and South Korea; and five of 10 ASEAN countries – Brunei, Laos, Malaysia, Philippines and Singapore.

The overwhelming response and turnout at the event was a powerful statement in support of multilateralism and a rules-based international order.

Subsequently, six other countries signed onto the Convention at the UN headquarters in New York, bringing the total number of signatories to the Convention today to 52.

Second, on a more specific level, the Convention is the missing third piece in the international dispute resolution enforcement framework, as many businesses today rely either on arbitration, enforced via the New York Convention, or on litigation, for cross-border disputes.

Mediation is rising in popularity due to a growing recognition of its benefits. It is cost-effective, flexible, efficient and also confidential. It allows parties to retain control over the outcome of their disputes. They control and in fact, design the architecture of the terms on which they come and reach a settlement on their dispute. It is attractive for businesses who wish to resolve their commercial disputes with an outcome that is mutually acceptable to both sides whilst preserving their long-term relationships and leaving open the possibility of working together in future. The conciliatory nature of mediation reduces the instances where a dispute leads ultimately to a complete termination of commercial relationships. Mediation therefore complements other modes of dispute resolution, as it can be used in conjunction with litigation or arbitration, and increasingly, it often is embedded into the system and it appears in both types of dispute resolution mechanisms.

Mediation has grown in popularity and use. A survey of participants at the 2016 Global Pound Conference found that a majority believed a greater emphasis on collaborative over adversarial process is a trend that will have the most significant influence on the future of commercial dispute resolution.

However, with all of that, the one key challenge that has been hindering the growth and adoption of mediation is the oft-cited difficulty faced by a party in ensuring that its counter-party – the party with whom it enters a settlement agreement – complies with the terms of the agreement.

While a mediated settlement agreement is contractually binding, it is not itself directly enforceable in the courts, unlike a court judgment or an arbitral award. This difficulty was also highlighted by the 2016 Global Pound Conference survey, where 51% of respondents indicated that legislation or conventions that promote the recognition and enforcement of settlements, including those reached in mediation, would most improve commercial dispute resolution. There is therefore a need for an effective, efficient and harmonised framework to enforce cross-border commercial mediated settlement agreements.

In response to this, the Convention puts in place a process for a party to enforce or invoke its settlement agreement in court. It is simple to use and allows businesses to maximise the benefits of mediation. Businesses can have greater assurance and certainty that mediation can be relied on to settle cross-border commercial disputes. This, in turn, promotes investor and business confidence. The Convention therefore facilitates the administration of international transactions by commercial parties, and we are hopeful that the establishment of a framework for the enforcement of such agreements will contribute to the development of harmonious international economic relations.

The Convention attained one of the highest number of first-day signatories for any UN trade convention, reflecting a recognition by the international community of the benefits that the Convention will bring.

The signing of the Convention marks the start of a long-term commitment by Singapore to promote the Convention and its adoption. In order for the Convention and therefore this Bill to enter into force, at least three states must deposit their instrument of ratification, acceptance, approval or accession. The Convention will enter into force six months after the third state deposits its instrument.

On Singapore’s part, we aim to be amongst the first countries to ratify the Convention, and will take steps to do so once this Bill is passed and Presidential Assent is obtained.

Let me now take Members through the key features of this Bill, which seeks to implement Singapore's obligations under the Convention. In putting together these provisions, the mechanism and also the framework, we consulted various industry stakeholders, including international dispute resolution institutions and experts and received their feedback both in terms of the philosophy behind the enforcement and also the practical aspects of enforcement.

The Bill is intended to operate in parallel with the Mediation Act 2017. That is the Act which Members will be familiar with, that deals with enforcement of mediated agreements domestically. It also preserves contractual remedies, with a view to giving commercial parties a broad suite of choices to enforce or choose to invoke their international mediated settlement agreements.

The key features of the Bill include the following.

The Bill relates to the cross-border enforcement of mediated settlement agreements and the invocation of such agreements as a defence. In other words, if a party chooses to act and bring a claim in breach of a prior mediated settlement agreement to which the claim applies, then the agreement can also be invoked as a defence.

It covers international settlement agreements resulting from mediation, concluded by parties to resolve a commercial dispute.

Agreements that are excluded from the Bill are those that (a) have been approved by a court or concluded in the course of court proceedings and are enforceable as judgments; (b) are enforceable as arbitral awards; and (c) relate to certain subject matters such as family, inheritance and employment law.

As mentioned, the Bill provides a range of options for parties seeking to enforce or invoke their settlement agreements in Singapore under the Convention. These are set out in clause 4 of the Bill. With these options, parties have the flexibility to decide on the most appropriate mode for their own particular situation and circumstance. This will help them to assess the options better and also save time and costs.

The Bill provides a "court order mechanism" for parties seeking to enforce or invoke their settlement agreement. So, a party can apply to the High Court to record its settlement agreement as an order of court, which can thereafter be used for the purposes of enforcement, or as I mentioned earlier as a defence, as the case may be. The procedure and the framework is similar to the enforcement of awards under the International Arbitration Act, which the legal and business communities would already be familiar with. It also provides greater certainty if future reliance on the settlement agreement is necessary.

For the avoidance of doubt, the process of obtaining a court order under the Bill does not extinguish the underlying mediated settlement agreement. It preserves the status of the underlying mediated agreement. So, it is still an agreement after all, even if one chooses to invoke the court process for the purposes of enforcement or to raise it as a defence. Either party to the mediated settlement agreement is at liberty to use the underlying settlement agreement for enforcement or invocation in another country, which is a party to the Convention, which is precisely why there is such a Convention – for cross-border enforcement of the mediated settlement agreement. This, of course, will be subject to that country's own procedures for enforcement and/or invocation.

Next, where there are existing proceedings in the High Court or the Court of Appeal, a party can apply to court to invoke the settlement agreement as a defence, to prove that the matter in those proceedings had already been resolved by the settlement agreement, without the need to take out separate proceedings to rely on the agreement. This also helps save time and costs for parties.

Lastly, parties’ legal rights and remedies existing outside of the Convention will be preserved. This means that parties can, for instance, continue to rely on contractual principles to enforce or invoke their settlement agreement, should they prefer this route.

Next, clause 6 requires the applicant to provide certain documents and evidence to the Court with its application. The Court may also take into account an exhaustive list of grounds to refuse an application under clause 7. Where a settlement agreement has been recorded as an order of court, clause 8 enables a party to apply to set aside the court order under stipulated grounds. In Clause 9, if there are parallel proceedings in another court, tribunal or other competent authority, the Court hearing an application under the Bill may adjourn the hearing and order the other party to give suitable security for costs.

This Bill does not currently implement either of the two reservations allowed under the Convention. The effect of this non-implementation of the reservation is that firstly, the Convention and the Bill will apply to settlement agreements that the Government is a party to; and two, the Convention and the Bill will apply automatically to parties to a settlement agreement who may wish to enforce or invoke their agreement in a Singapore court under the Convention. Parties may however agree, through the terms of their settlement agreement, to opt out of the Convention. That is a choice given to the parties – you might decide that you wish to opt out of the modalities set out in the Convention.

Finally, the Bill makes related amendments to the Mediation Act 2017, which I mentioned earlier, and also to the Supreme Court of Judicature Act (SCJA).

The related amendments to the Mediation Act 2017 provide that a settlement agreement within the scope of the Bill is not precluded from the Mediation Act 2017, if that settlement agreement also qualifies under that Act. In other words, it preserves a party's rights to go under the Mediation Act 2017 if you also qualify under the framework of that legislation.

The amendments to the SCJA provide the High Court with the jurisdiction to grant applications under the Bill.

Sir, in conclusion, let me reiterate that in developing our dispute resolution regime, we have sought to provide businesses with a full suite of user-centric options to resolve their cross-border disputes, whether through litigation, arbitration or mediation. With the introduction of the Convention, it is anticipated that more businesses will seek to avail themselves of the benefits that the mediation process provides, as adoption of the Convention becomes more prevalent globally. This Bill is an essential instrument that will enable parties to benefit from the framework that is already set out in the Convention, and it is a significant step in our overall efforts to strengthen Singapore’s dispute resolution framework. Sir, with that, I beg to move.

Question proposed.

6.27 pm

Prof Fatimah Lateef (Marine Parade): Mr Deputy Speaker, first and foremost, let me declare my role as the advisor to the International Institute of Mediators (IIM).

This is a landmark Bill. It represents a significant major step for cross-border resolution of commercial disputes. This is with the hope that businesses will benefit with more certainty and assurance.

Sir, it is also about our Singapore branding, our badge as a global arbitration and mediation hub. Singapore had a major role in drafting the document. And what more, the Singapore Convention on Mediation was opened for signature on 7 August 2019, our Bicentennial year, and also named after us. It is an honour indeed.

Mediation is now getting more popular and thus more frequently used at both domestic and international platforms. Reading through the Bill, there are some unique pointers unlike other multilateral enforcement regimes, such as that it does not operate based on reciprocity between member states.

I have, Sir, several clarifications and queries.

Firstly, under section 6, subsection 4, pertaining to the certified translation into English of the settlement agreement if it is in other languages. Can the Senior Minister of State clarify if the service will be provided by a list of approved vendors globally or the parties involved will have to source for this themselves?

Next, can the Senior Minister of State please outline if the courts of signatory countries will handle applications to enforce or clear parties involved?

Some major nations have not ratified the Convention. Are there specific reasons or considerations for this? With a Bill as this under the umbrella of the United Nations, it would be excellent to have as many nations come on board and if not so, the reasons, perhaps could be addressed adequately. I believe there are also some inconsistencies with the fundamentals of commercial mediation in the Western jurisdiction. Perhaps the Senior Minister of State is probably more well-versed with this, and if it is possible, perhaps he can enlighten us on some of the possible reasons for this.

Can I also clarify with the Senior Minister of State that as long as a settlement is intended and will result from mediation, then that commercial case will qualify for enforcement under the Convention, regardless of its place of origin or the nation of origin?

Sir, mediation is an art, with the science part of it as well. The mediation industry is variable across different countries and jurisdictions. Its recognition is also variable. For example, in the UK, it has a well-known reputation and history of being strong in arbitration.

What is important in considering this Bill is the fact that mediation will be driven very much by the local framework, culture and emphasis. Mediator recognition, training and qualifications also vary across the globe. Cultural diversity will exist and we know that "culture can, indeed, trump strategy". In view of all these factors, how do we ensure some degree of consistency and standardisation?

Another concern is on the requirement of having "the mediator signing the document". A mediator's document is quite different from a witness' statement in Court, for example. In some places, the mediator may not be comfortable to have his or her name and documents appear and be utilised in a Court of law. Mediators may disagree to sign the Settlement Agreement and, if they are not comfortable with this, to be also subpoenaed as witnesses. How then should these cases be handled?

Some cases or disputes put up for mediation may span a period of time, maybe even years, and agreement may not have been reached at the first sitting. If an agreement is then eventually reached, how can we prove that it is actually settled through mediation and not due to other platforms, alternatives and various permutations of interventions, during the course of the matter in question?

Another query I have on this is: will an agreement arising from mediation now be enforceable with the passing of this Bill? Can the Minister please clarify as well?

Finally, will two parties in dispute seeking enforcement apply to the Courts of the State or country whereby the majority of the assets are located or can this be otherwise? Who can decide on this? And what if both parties are at loggerheads pertaining to this?

So, these are some of the clarifications I have. Pending these, I support the Bill.

6.32 pm

Mr Patrick Tay Teck Guan (West Coast): Mr Deputy Speaker, Sir, I declare my interest as an accredited mediator with the Singapore Mediation Centre as well as a Fellow in the Singapore Institute of Arbitrators. I rise in support of this Bill, which seeks to enhance the dispute resolution landscape within Singapore, by giving greater recognition towards mediation and international commercial settlement agreements.

The benefits of mediation are four-fold. First, mediation accords parties greater control over the outcome and resolution of the matter, which contrasts with long-drawn Court trials, where the outcome of a case rests in the Judge’s hands. Second, the contents of parties' disputes are kept confidential, unlike litigation where parties' dirty linen and affairs are often aired in Court. Third, legal costs are reduced, as parties no longer have to pay for their lawyers' fees and Court fees once a settlement has been reached. Lastly and most importantly, parties' relationships are preserved and this is essential where parties wish to continue business relations with each other.

As Singapore recognises the benefits of mediation and continues to develop its position as a leading global dispute resolution hub, mediation institutions and schemes will take on an increasingly important role. At present, we have the Singapore Mediation Centre (SMC), which has mediated over 4,000 matters to-date. The settlement rate is approximately 70%, with more than 90% of the settled disputes resolved within a day. To-date, the SMC has received positive feedback. Many individuals have saved time and costs and would likewise recommend the SMC to others involved in disputes.

Apart from the SMC, we also have the International Institute of Mediators (Singapore) Limited (iiM), which was established as a result of its founding members’ commitment to develop and promote the mediation profession on a global basis. Aside from the regular mediation sessions conducted by its members, the iiM additionally provides education and training for those who aspire to become trained mediators.

I am also pleased to share that NTUC’s Freelancers and Self-Employed Unit (UFSE) and iiM have inked a collaboration agreement in December 2019 to better serve the needs of the freelancer community in Singapore. This is one of the many initiatives illustrating the Labour Movement's commitment towards its freelancer members, ensuring that they have an appropriate avenue for amicable dispute resolution. With this collaboration, NTUC UFSE members will be able to enjoy discounted rates for mediation services provided by iiM.

Turning now to the international commercial sphere, with the increasing prevalence of global and international trade between countries, coupled with Singapore’s open and highly developed free-market economy, the need for cross-border mediation resources and enforceable international settlement agreements becomes particularly crucial. It is against this commercial backdrop that this Bill is commendable.

Under the new Bill, international commercial settlement agreements may be recorded as an order of Court which can then be more readily enforced in the same manner as a judgment by the High Court. This is an improvement from the long-standing position where mediated settlement agreements are typically only binding contractually between parties and not directly enforceable as a Court Order. By the same token, the settlement agreement may also be invoked by a party as a defence against a claim that has already been settled. This prevents settled disputes from being re-litigated, which saves parties’ time and costs as well as judicial resources.

While the Bill is no doubt commendable, I have the following questions and clarifications for the Senior Minister of State. The Bill only applies to international commercial settlement agreements resulting from mediation and does not extend to settlement agreements concluded for family, inheritance and/or employment disputes.

First, is there a reason why the Bill is not extended to these other areas of dispute? If so, would the Minister be willing to share the reasons? Also, does the Minister foresee that there should be a similar Bill covering these other areas, given today's globally interconnected world, where many individuals opt to work around the globe, having assets typically situated in different parts of the world and where transactions cut across borders?

Second, given the growing freelancer community and, especially for those who look to venture overseas, whether digitally or in person, would the Bill also cover intellectual property rights?

Third, I understand that the Court retains the discretion to refuse the application to record the agreement as a Court Order if there was a serious breach by the mediator of the applicable standards. What are some examples of serious breaches by the mediator which would warrant the Court’s refusal of the application? And is it necessary to refuse enforcement, especially if commercial entities have been properly advised and have the freedom to enter into such settlement agreements?

Fourth, we do see a greater trend towards mediation over the years, especially with the implementation of the Mediation Act in 2017 and the various mediation institutions in Singapore. I have also seen some choosing mediation over litigation, while others opt to use mediation in conjunction with litigation. Would the Minister foresee a further increase in disputes resolved as a result of the new Bill and, if so, to what extent? Would the Minister also be able to share some of the views and concerns of the legal fraternity as well as the business community, in response to this new Bill? Sir, clarifications notwithstanding, I stand in support of this Bill.

6.38 pm

Mr Douglas Foo (Nominated Member): Mr Deputy Speaker, Sir, please allow me to declare my interest as the Chairman of Sakae Holdings Limited, President of Singapore Manufacturing Federation (SMF), Vice-Chairman of the Singapore Business Federation (SBF) and Vice-President of the Singapore National Employers Federation (SNEF). I rise in support of the Bill.

As a representative of the business community, I strongly believe in the benefits of mediation. I constantly advocate mediation as the initial avenue for dispute resolution as the flexibility and advantages that mediation offers are wide-ranging. The benefits of mediation vis-à-vis arbitration and litigation are frequently cited to be time and cost efficiency, confidentiality, non-confrontational character and, many times, the business relationship may continue after a mediation settlement is reached.

I believe I can say that, lawyers apart, one of the most stressful things in life for the everyday man on the street would be to be hit with legal matters, especially a full-blown litigious trial. The stress, worry and uncertainty are exacerbated by a largely adversarial process that takes much time and, indeed, resources away from the real business of doing business.

Hence, the business community will benefit if mediation becomes a widely-accepted and recognised avenue for dispute resolution. With mediation, the options for settlement are wider in scope than the monetary compensation available through arbitration or litigation and parties have a chance to negotiate settlement options without prejudice to their legal rights and in a non-pressure cooker atmosphere.

The confidential nature of mediation also protects companies from unwanted public scrutiny. Most business relationships are complex and forged over time and, as such, I believe most would seek to preserve the relationship where possible. As the awareness for mediation grows, I see this as a cost- and time-efficient option for companies to resolve disputes.

As the President of SMF, I have personally facilitated dialogue between SMC and SMF. The hope of both parties is to bring greater awareness of the options and advantages of mediation to the manufacturing community and thus fostering greater acceptance of this avenue of dispute resolution.

The team at the SMC has shared that 90% of mediation cases are concluded within one day. This is really amazing, as compared to the significantly longer processes of arbitration and litigation with the corresponding higher professional service fees that one would have to pay.

It is my hope that more trade associations and chambers will take the lead in spreading what mediation is and help our society to be one that is less litigious. It is in this context that I firmly place my support behind this Bill.

Perhaps the main reason why companies hesitate to consider mediation as an avenue of dispute resolution was the lack of an enforcement mechanism, especially in the event of cross-border interests. As there was a lack of a cross-border framework for mediated settlement agreements, parties are only able to seek enforcement of the settlement agreement under contract law. By passing this Bill as a step towards ratifying the Singapore Convention, mediation will now be further seen as one that does not waste time and one that can produce desired outcomes.

The Singapore Convention on Mediation, formally the UN Convention on International Settlement Agreements Resulting from Mediation which was adopted on 20 December 2018 and opened for signature on 7 August 2019, is an international agreement governing the recognition of mediated settlements across different countries.

The UN General Assembly adopted this agreement on 18 December 2018 and it is very heartening that the agreement has since been signed by 52 states since it was opened for signature since then.

With a global framework in place, businesses should have greater confidence to settle international disputes through mediation. As noted by Prime Minister Lee Hsien Loong at the signing ceremony, "This will help advance international trade, commerce and investment."

The ratifying of the Convention in the near future will be a step forward for the international business community as signatory states move to standardise enforcement of mediation settlements in their respective jurisdictions. Once again, businesses will not see benefits overnight as legislation takes time to be enacted. However, we hope to be able to lay the groundwork and build awareness in the immediate future.

This Bill is timely, especially with the recent coming into force of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the European Union–Singapore Free Trade Agreement (EUSFTA). As a trade federation, SMF has increasingly encouraged our local companies to look beyond our shores and seek out business partners in new markets for growth.

In the Singapore Business Federation National Business Survey 2019/2020, 76% of firms which indicated that they intended to expand were keen to venture into the ASEAN region, similar to 2018/2019 levels. The top three destinations in the survey were Vietnam, Indonesia and Malaysia.

In 2019, SMF welcomed 21 international business delegations and hosted eight business matching sessions for the local and international business representatives. The Enterprise Europe Network (EEN) Singapore Chapter is managed by SMF and, in the lead up to the ratification of the EUSFTA, saw an increase in interest from local business owners during the visits and business-matching sessions for the European delegations.

Of course, finding a viable business partner does not happen over one business-matching session. The process usually requires a long period of discussion and gestation before an agreement is finalised. Forging business relationships in new markets is a challenging endeavour, especially in markets with very different cultures and regulatory requirements. With increased cross-border commercial transactions, it is expected that differences will arise. As such, a mediation framework that is internationally recognised is much needed for a fair and efficient way to resolve disputes in a timely manner.

In Singapore, the business community is fortunate to operate in a stable environment built on the trust and respect of Government, employers and employees. Within this tripartite partnership, mediation has long been the preferred tool to resolve disputes, especially since the Tripartite Alliance for Dispute Management (TADM) was established in April 2017.

In reply to a written question in Parliament in August last year by my fellow Nominated Member of Parliament, Ms Anthea Ong, Minister Josephine Teo provided statistics, which in my humble opinion, has shown TADM's commendable rates on successful settlements and enforcement. Mediation actually embodies the key tenets of open communication and trust that lie in the foundation of our Tripartite Partnership. My hope is for mediation to continue to be seen as a viable first approach to not only resolve employer and employees disputes but as an avenue to resolve business disputes as well.

As Trade Association Chambers, we need to be committed to advocate and educate the business community with the on-going changes to business legislation and the subsequent benefits of mediation to companies. Once this Bill is passed, I believe our work begins. With that, Mr Deputy Speaker, Sir, I support the Bill.

Mr Deputy Speaker: Deputy Leader.

Resumption of Debate on Question [3 February 2020], "That the Bill be now read a Second time." – [Minister for Law].

Question again proposed.

Mr Christopher de Souza (Holland-Bukit Timah): Sir, the Singapore Convention on Mediation Bill implements the UN Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation. This Bill is important for Singapore’s ratification of the Convention.

On 7 August 2019, 70 countries attended the signing ceremony of the Singapore Convention with a total of 46 signing it. Subsequently, another five states signed it, bringing the total current signatures to 51. Among the signatories include United States, China, India, and South Korea. While there are currently 51 signatures to the Singapore Convention, the Singapore Convention will only commence operations six months after the third ratification – what is needed is for states to align international processes with its international obligation and then ratify the Convention. My questions are: is the Ministry aware of other states’ progress in this process? And how has Singapore been engaging other countries in encouraging them to ratify?

The Convention plays a key role in Singapore’s future in the international sphere. Not only is this Convention the first UN treaty named after Singapore, but it is also in line with Singapore’s role as an international dispute resolution hub. As an international dispute resolution hub, Singapore has many dispute resolution tools available. Allow me at this stage, Sir, to declare that I am a practising lawyer.

Singapore has a strong presence in arbitration and also offers a special judicial process through the Singapore International Commercial Court. Singapore is also a party to the Hague Convention on Choice of Court Agreements and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. These conventions provide for foreign recognition and enforcement of Singapore court orders and arbitration awards made in Singapore.

Through this, Singapore is better positioned to be a dispute resolution hub as parties are able to resolve their disputes either through the court, through arbitration or even voluntarily through mediation.

What this Bill does is that it provides that an international settlement agreement formed through mediation of a dispute may be recorded in Singapore as a court order for the purposes of enforcement or defence, set-off or otherwise rely on it in a court proceeding. Clause 4 allows for such an application by a party to the settlement agreement and clause 5 provides that the High Court may grant such leave to record the order as an order of court. In order for parties to utilise this regime, clause 6 sets out that the two following documents and evidence are necessary – one, the international settlement agreement signed by the parties and two, evidence that the international settlement agreement resulted from mediation.

The second criteria is important as it helps distinguish between a contractual agreement and a mediation settlement. Although both are formed only when parties consent voluntarily to something, a mediation settlement requires there to have been a dispute and may even be directly enforced as a court order and not merely a contractual agreement. If this distinction were to be blurred, the special statutory regime that elevates private agreements to court orders may be abused.

What is required is the mediator’s signature on the international settlement agreement, a document signed by the mediator indicating that mediation was carried out and an attestation by the institution that administered the mediation or any other evidence acceptable to the court per clause 6(1)(b). Unlike the Mediation Act 2017, which allows for the mediation to be carried out either by a designated mediation service provider or conducted by a certified mediator in section 12(3)(a), clause 6(b)(iii) of the Bill requires that the mediation be administered by an institution and not merely a certified mediator. Therefore, my question for the Minister: would the Minister kindly elaborate on how institutions for mediation in Singapore are building up their capacity and capabilities in preparation for the commencement of the Singapore Convention?

Besides the formal requirements for the application listed in clause 6, clause 7 sets out substantive grounds for refusing an application to record an international settlement agreement as an order of the High Court.

Clause 7(2)(c)(i) provides that evidence that the obligations in the international settlement agreement have been performed can be a ground for refusing an application to record it as a court order. Because an application to record an order may be to prove that the matter has already been resolved and not just for enforcement of the agreement, it is good that ultimately it is up to the court’s discretion whether to refuse the application notwithstanding there is such evidence.

Clause 7(2)(d) retains flexibility for parties to agree to opt-out of this statutory enforcement regime. In the event that they do not wish to allow their international settlement agreement to be recorded before the court, there still is flexibility to do so.

Clause 8 is interesting in that it addresses a situation where an already mediated international settlement agreement is recorded as an order of court but the other party to the settlement agreement does not appear before the court. Court proceedings are mandatory in the sense that they force the other party to participate and appear in court otherwise a judgment may be entered against them, for example, a judgment in default of appearance situations.

On the other hand, voluntariness of both parties to a certain extent is necessary in order to resolve the dispute via mediation. What clause 8 does not require a court to refuse to record a settlement agreement simply because the other party is absent. This prevents a person from running away from what he had agreed to in the mediation settlement. On the other hand, to ensure that a mere procedural lapse will not prevent justice from being done, clause 8 allows for an order recorded in the absence of a party to be set aside on the application of the absent party based on substantive arguments, that is, grounds on which the court may refuse to grant an application to record an order.

This Bill also includes the entire text of the Singapore Convention in the schedule. Following the commencement of the Convention, the jurisprudence and scholarship relating to mediation will probably continue to grow. Would the Minister elaborate on what the Ministry is doing to encourage and equip Singapore lawyers to be active and effective members in the mediation industry as well as to develop strong thought leadership in this area – whether in the academics, whether as a practitioner or whether as a mediator – him or herself? Would the Minister kindly clarify that, please?

Even as it is anticipated that the use of mediation as an alternative dispute resolution mechanism will pick up around the world following commencement and ratification of the Singapore Convention, it is commendable that law students are also looking to further their interests and passions in this area already. For example, the "National SMUSIMI Collaborative Dispute Resolution Award" recognises law students from the local Universities – SMU, NUS and SUSS – who have excelled in international collaborative dispute resolution competitions or who have contributed significantly to the mediation and negotiation in Singapore. Last year, Singapore held its first ever international moot for university students that focuses on mediation advocacy and mediation proper.

Therefore, I ask the Minister: would the Minister share with us what efforts are being done to sustain interest in development in this area of mediation?

In conclusion, Sir, this Bill furthers our interests as an international dispute resolution hub, and it provides for alternative dispute resolution means and mechanisms and, therefore, I stand in support of the Bill.

3.09 pm

Mr Louis Ng Kok Kwang (Nee Soon): Sir, I stand in support of the Bill. Mediation has been growing in prominence in Singapore’s dispute resolution landscape. One starting point for institutionalised mediation in Singapore could be then Attorney-General Chan Sek Keong’s speech at the Opening of the Legal Year 1996 on the need to look into mediation as a form of alternative dispute resolution and suggestion to establish a commercial mediation centre.

Since then, Singapore has made great leaps in institutionalised mediation.

In 2020, we now have a proliferation of mediation institutes, including the Singapore Mediation Centre, the Singapore International Mediation Centre, and the Singapore International Mediation Institute, among others. The Presumption of ADR applies for all civil cases under the State Courts Practice Directions, which requires cases to be referred to the most appropriate mode of ADR, including mediation, as a first resort. Finally, in November 2017, Singapore’s Mediation Act came into force. Amongst the significant developments introduced by this Act was allowing mediated settlement agreements to be recorded and enforced as court judgments.

It is thus a point of much pride that the progress Singapore has made on mediation domestically is now magnified on the international stage through the Singapore Convention on Mediation.

This Bill gives effect to the convention. Similar to the Singapore Mediation Act, it addresses the non-enforceability of mediated settlement agreements, which has been traditionally an obstacle to the adoption of mediation.

The 1958 New York convention, which streamlined the enforcement of foreign arbitral awards led to the boom in arbitration. It is hoped that the Singapore Convention on Mediation will now put international mediation on an even footing as international arbitration.

Sir, I have three clarifications on the Bill.

My first clarification centres on mediation standards. The proposed section 7(2)(e) provides that an international settlement agreement may be enforced if “there was a serious breach by the mediator who conducted the mediation that resulted in the international settlement agreement of the standards applicable to the mediator, or the mediation”.

There is currently no single set of mediation standards in Singapore or internationally. Mediation standards in Singapore are fragmented.

The Singapore Mediation Centre has a Code of Conduct for its mediators in sessions held by SMC. The Singapore International Mediation Institute has a Code of Professional Conduct applicable to any mediation that is mediated by a Singapore International Mediation Institute Mediator while the Society of Mediation Professionals (Singapore) is a group of mediators looking to develop a collective, localised and contextualised code of ethics.

Can Senior Minister of State share if there are plans to leave the industry to self-regulate in determining the applicable mediator standards or if MinLaw intends to take the lead in consolidating a single set of mediation standards?

My second clarification is in relation to section 7(2)(e), which states that only a "serious breach" by the mediator justifies the Court refusing to grant relief. The Convention and the Bill do not define what constitutes a "serious breach". A further hurdle, again, to determining what is a "serious breach" is the fragmented state of mediation standards. Can the Senior Minister of State share whether there are plans for the Ministry to provide guidance on what should constitute "serious breach" or will the definition be left entirely up to the Courts and mediation institutions?

My third clarification is on civil justice reforms. The Convention and the Bill enable the enforcement of mediated international settlement agreements. Domestically, the enforcement process for civil judgments is under review.

The Civil Justice Review Committee (CJRC)’s report noted that the "tools currently available for enforcing both monetary and non-monetary judgments are limited and unsophisticated". It further noted that the enforcement process is too court-centric and that there are limited modes of enforcing non-monetary judgments.

The CJRC recommended that the enforcement process for civil judgments be privatised, and that the Ministry study the problems and proposals further. It also suggested that the Ministry implement civil enforcement reforms separately from the rest of the civil justice reforms.

Can the Ministry share whether this review of civil enforcement procedures will affect the processes under this current Bill?

Sir, notwithstanding these clarifications, I stand in support of the Bill.

Mr Deputy Speaker: Senior Minister of State Mr Edwin Tong.

3.15 pm

Mr Edwin Tong Chun Fai: Mr Deputy Speaker, I thank Members for their broad support of the Bill as well as for the overall affirmation of the key role in which mediation can play and will be playing, in the context of Singapore's bid to have first-class international dispute resolution services and to maintain our status as a key hub for such services.

Let me get straight to addressing the queries raised by Members, starting with some broad overarching points as to the Convention and also as to the architecture of the Bill.

Mr de Souza asked about the progress of ratification of the Convention by other states, and when the Convention will come into effect. He also asked how Singapore has been engaging other countries in encouraging them to join us in seeking to first sign up to, and subsequently, ratify the Convention. As I outlined earlier, we require three states to ratify the Convention before the Convention becomes effective six months after the third state has deposited its instrument of ratification with the UN. Singapore hopes to be amongst the first countries to do so.

The overwhelming show of support for the Convention on the day it opened for signature is itself encouraging, and this suggests many other countries share our view that mediation is increasingly prevalent and overall helpful to the conduct of international business transactions. This gives us good basis to believe that the other States will also quickly ratify the Convention.

We understand several other countries are taking active steps towards their own ratification process. Like us, they will have to go through their own internal process and approvals such as, for instance, enacting domestic legislation to implement the obligations contained in the Convention, before they subsequently ratify the Convention.

On our end, what we have done is we have offered to host workshops for those other countries interested in finding out about the Convention, what it takes to have that implemented in their own domestic laws and also to be able to assist where required in their ratification processes as well.

The next Singapore Convention Conference is scheduled to be held in Singapore in September 2020, in conjunction with a Singapore Convention Week of events, so a series of other related events, conferences, sessions, including the competition that Mr de Souza spoke about earlier will take place in September 2020. This will also include workshops for interested government officials, legal and business communities, the academics and of course students from around the world and this will provide participants with an insight into the Convention and of course sharing information and thought leadership on the latest developments in not just mediation but also the broader realm of dispute resolution.

We are overall hopeful that the Convention will come into force soon.

Mr Patrick Tay asked if we foresee an increase in disputes resolved as a result of the Bill. Well, that is certainly the intention behind the Bill and the Convention. With the introduction of a framework to simplify the process for enforcement and invocation of international settlement agreements, we do expect to see an increase in the number of disputes resolved in accordance with this Bill, and slowly with the proliferation of mediation, increasingly as a viable option for resolving disputes, and also under the Domestic Mediation Act.

Several Members have already touched on these benefits, which include time and cost efficiency, greater party autonomy and control over the resolution of the disputes, how they frame disputes, how they frame the settlement of the disputes and the terms and conditions which go behind such agreements. Mediation also protects confidentiality between the parties and ultimately, also preserve a relationship which may have taken years if not decades to build and that is the overarching benefit in engaging mediation as a method of resolving disputes. And I would agree with Members that these factors add to the reasons why we believe that mediation is growing as an option as one of the key dispute resolution options.

Mr Douglas Foo made an important point when he spoke about the importance of educating the business community of the benefits of mediation and of how these reforms can impact them positively. I agree, and the efforts to raise awareness of the Convention and of mediation in particular, must be an on-going and long-term one, and we are committed to doing so.

Let me just share with Members some of the steps we have been taking. MinLaw and our Singapore mediation institutes which many Members have mentioned – the SIMC, SIMI which is the mediation institute – have taken steps, active steps in the community to raise awareness of the Convention. MinLaw has been actively promoting the Convention and its benefits to the legal and business communities and to schools through conferences, seminars, workshops and other outreach efforts.

SIMC has bee conducting briefing sessions in conjunction with organisations such as the Law Society and Singapore Corporate Counsel Association to reach out to the legal profession and to the industry players and they will continue to do so. Thus far, SIMI – the institute – has conducted "Mediation In Practice" seminars for professionals in the healthcare and built environment sectors – two sectors which we believe will benefit from the usage of mediation – and will continue to conduct seminars for other sectors as well.

Mr de Souza also specifically asked about MinLaw’s efforts to build capability, interest and thought leadership with regard to mediation generally, amongst mediation institutions, amongst Singapore lawyers, and law students. Let me come to this but before I do so, I think that Mr de Souza noted that clause 6(1)(b)(iii) requires that the mediation be administered by an institution and not merely by a certified mediator. I would just like to add that the requirements in 6(1)(b) are disjunctive. There are several limbs to the clause and they are all disadjunctive. Hence, the Bill caters to both administered and unadministered mediations. Clause 6(1)(b)(ii), for instance, provides that an attestation by the institution that administered the mediation is only one of the ways in which a settlement agreement can be evidenced to have resulted from a mediation. Alternatively, the mediator’s signature on the agreement or some other document, not necessarily on the mediated agreement or any other evidence acceptable to the court, will also suffice. In other words, clause 6(1)(b) provides for a broad spectrum of different options by which the Court might then gain insight as to whether there is evidence supporting the contention that this agreement has arisen from mediation.

Singapore’s mediation institutions have built a strong pool of qualified mediators and practitioners and this started even before the Convention was inked last year. The SIMC and the SMC, which are two of the designated mediation service providers under the Mediation Act 2017, have established panels of mediators with broad expertise in very diverse fields. SIMC’s panel has about 70 international mediators from more than 20 jurisdictions across a spectrum of civil and common law backgrounds. They have expertise in different fields as well, different subject matters, which are important because whilst a dispute might centre around the law, the subject matter of the dispute might well come from different spectrums of society and different aspects of business transactions.

Knowledge, know-how and thought leadership are important drivers for mediation as a practice. And to this end, our institutions regularly conduct courses to equip Singapore lawyers and other professionals as well with mediation knowledge and skills. Recently, in November last year, the SIMC conducted a two-day specialist training workshop for 24 senior practitioners from Singapore – they include senior counsel, managing partners and partners of law firms in Singapore, general counsel of MNCs located in Singapore also other large companies and SIMC subsequently appointed them as specialist mediators in January this year. SIMC will be looking to conduct more runs of such specialist training workshops for lawyers, for in-house counsel and other business professionals. The thinking behind that being that it is not just within the province and domain of lawyers to conduct and run mediations but rather if we bring the skill in-house into the business environment then it is more likely that mediation will be taken up as an option; and also, would be able to locate such expertise within the business itself to catch hold of the dispute as early as possible.

On thought leadership, the Singapore International Dispute Resolution Academy or SIDRA was established as a platform for thought leadership in dispute resolution theory, practice and policy, and this includes of course the area of mediation as well. SIDRA strengthens Singapore’s thought leadership in this area through its research projects, such as its Singapore Convention on Mediation research project, which produced the first commentary on the Convention, and the International Dispute Resolution Survey research project, which captured respondents’ considerations in the use of international commercial dispute resolution, including arbitration, mediation and litigation.

On law students, which Mr de Souza mentioned, we have not forgotten them. I think Mr de Souza mentioned that SIMI organised the inaugural International Mediation Singapore moot. That involved 140 students from 30 different universities from around the world. It was the first international moot organised in Singapore that focuses on mediation advocacy. This year, in conjunction with what I mentioned earlier on the “Singapore Convention Week” in September this year, we will also have the second instalment of this programme.

To further develop students’ interest in mediation, NUS, SMU and SUSS law students are provided with electives and modules on mediation. SIMI supported the founding of, and continues to advise, the NUS Collaborative Dispute Resolution Club, the CDR, a dedicated club for law students to organise activities related to CDR such as selections for international competitions, events, seminars and also hosting actual competitions for students. This month, they will be organising a Mediation Advocacy Competition for contestants to pit their advocacy skills to further their client’s interests in collaborative mediation settings – real-life settings but students have a chance to apply what they have been taught and put into practice in an as realistic a setting as possible. SIMI and SIMC also provide internships for students interested in deepening their own understanding of mediation and how it applies in practice.

Mr Patrick Tay asked about the views and concerns of the legal fraternity and the business community, in response to the Bill. In some ways, the response from the legal community to what I have outlined over the last couple of minutes from attending the Convention, to the training, to coming forward to serve as specialist mediators, they all tell us that the legal community and the business one sees value in mediation. Stakeholders, including the legal fraternity, dispute resolution institutions, businesses that we consulted, welcomed the Bill. MinLaw also conducted several engagement sessions with professional bodies, business associations and students, and received very positive feedback for which we are very heartened.

On the international front, the adoption of the Convention by the UN General Assembly, Singapore's signing of the Convention and the other countries indicating that they would wish to ratify the Convention as soon as they can, they all bode well and they give us good reason to be quietly optimistic that the Convention will be ratified by more countries, and also its application to businesses across different jurisdictions to promote international trade.

Prof Fatimah Lateef asked if an agreement arising from mediation will now be enforceable under the Bill. The answer is yes. When the Bill is passed and enters into force, agreements which are of a commercial and international in nature, and which fulfil the requirements of the Bill, will be enforceable under the Bill's framework.

Mr Louis Ng noted quite rightly that as part of the civil justice reforms, the enforcement process of civil judgments in Singapore is currently under review. He asked how this review will affect the processes under this Bill. Under the Bill, an application for recognition of the international settlement agreement has to be applied for through the court process. I have outlined that earlier when I made the speech yesterday. One of the objectives of the civil justice reforms is to enhance the efficiency of the court procedures and this would also help the process under this Bill because the processes will be streamlined, enhanced and made more efficient.

Prof Fatimah Lateef had asked whether an international settlement agreement resulting from mediation can be enforced under the Convention regardless of its place of origin, and whether a party seeking to enforce such an agreement can do so in the state where the other party has a majority of its assets. This is a classic enforcement issue that almost all lawyers face when they look at how to, or where to enforce an award or order. The answer to Prof Fatimah Lateef's question is yes and indeed, that is the value behind the Convention. A party can choose which jurisdiction it wishes to bring an application under the Convention, provided that the jurisdiction is a party to the Convention. Obviously so because it can be enforced only against the party in a Convention jurisdiction. This provides businesses and investors with the certainty upfront that their cross-border transactions, which subsequently result in a dispute, which can then be mediated, can be easily and in my view, more effectively enforced, if one is able to discern how and where to go depending on the assets located of the counter party.

A party is also not limited to seeking enforcement under the Convention in just one jurisdiction. As I explained in my speech yesterday, obtaining an order of court under this Bill for the purposes of the enforcement does not extinguish the underlying mediated agreement. Either party to the mediated settlement agreement is at liberty to continue using the settlement agreement for enforcement or invocation in another jurisdiction which is a party to the Convention. So, you can go and seek enforcement of the mediated agreement in different jurisdictions, but provided that these different jurisdictions are Convention jurisdictions.

This is also subject, as in all cases, to the jurisdiction's own domestic procedures for enforcement and invocation. In other words, other countries will have their own process as we have set out in this Bill and compliance with that process must be adhered to, which is not uncommon.

Article 1(3)(a) of the Convention excludes settlements that have been approved by the court or concluded in the course of proceedings before a court. In other words, sometimes, in the course of court proceedings, you have a settlement agreement that arises in the context of that, this Bill does not apply to those agreements. This, however, does not mean that when a settlement agreement has been recorded as a court order under the Bill, for the purposes of enforcement or invocation in Singapore, that parties to the agreement would thereafter be precluded from presenting the same agreement in another jurisdiction for enforcement.

So, I just want to make this clear, that in coming to court in Singapore, adhering to the process under this Bill, for the purposes of enforcing or invoking the settlement agreement, does not preclude you from taking this agreement to another jurisdiction and then complying with the domestic procedures and laws, and also then enforcing it in that jurisdiction.

Mr Patrick Tay asked for the reasons behind the Bill being limited to commercial matters and why the Bill does not extend to agreements concluded for family, inheritance or employment disputes.

The Convention, which the Bill seeks to implement, itself excludes disputes in relation to "family, inheritance or employment law". The rationale of that is because it is consistent with UNCITRAL's mandate to focus on commercial disputes and commercial matters.

In fact, in its deliberations on the draft Convention text, commercial disputes were the main focus of the Working Group. The Working Group decided that settlement agreements dealing with family and labour law matters, and other areas where party autonomy might be limited due to overriding mandatory rules or public policy, should be excluded from the scope of the Convention.

Further, in matters such as family and employment law, domestic laws and public policy considerations often differ from one country to another. This could become an issue if a foreign court is faced with an application for the enforcement or invocation of agreements that might otherwise be contrary to its own laws and public policy of that particular jurisdiction.

That said, Mr Tay might wish to know that family disputes and related international mediated agreements are currently being considered by the Hague Conference on Private International Law, on whether there is scope for an international instrument to be developed for such matters. So, that might well happen, but perhaps within a differentiated set of rules, given the public policy considerations I have mentioned earlier.

Mr Patrick Tay also asked if the Bill will cover intellectual property rights.

The Bill covers all settlement agreements from mediations to resolve a commercial dispute. The Working Group agreed not to define the term "commercial" but left it to interpretation and further agreed that it should be capable of given a wide interpretation. Often, one finds that a dispute can raise multi-faceted issues, it is not often easy to pigeon-hole into one category or another. Hence, so long as the settlement agreement pertaining to or touching on IP rights relates to matters arising from a commercial dispute, then it can fall within the scope of the Bill.

Prof Fatimah Lateef asked if the courts of signatory countries will handle the applications for the Convention. The answer is yes. The Convention provides for a competent authority designated by a party to handle and hear applications brought under the Convention in that country. This is not limited to the courts of a country, and other bodies deemed suitable and competent by that country could also be designated. In Singapore, applications under the Bill are to be made to the High Court or to the Court of Appeal, as appropriate.

Prof Fatimah Lateef asked how parties can prove that the settlement agreement was a result of mediation. I believe Mr de Souza also raised this point earlier. It is not uncommon for parties to discuss and come to a resolution through various channels. So, in other words, where there is a dispute, one does not just sit down and say, "Okay, listen, this is a mediation. Let's start". Often, there is a series of informal discussions, maybe exchange in writing sometimes or over meetings. This can happen for a period of time before arriving at an agreement through the mediation.

Where the dispute is eventually resolved through these steps and recorded in the form of an agreement at a mediation session, the Bill will be applicable, subject to the other conditions of the Bill being met.

The onus is on the party seeking to make an application under the Bill to prove that requirements under clause 6(1)(b), which I have mentioned a little while ago, that the settlement agreement resulted from mediation, and that these conditions have been complied with. For instance, such evidence can be in the form of a document signed by the mediator conducting the mediation indicating that such a mediation was carried out.

On this note, Prof Fatimah Lateef raised the concern about the mediator having to sign the settlement agreement.

In line with Article 4(1) of the Convention, the requirements set out in clause 6(1)(b) are not exhaustive. The first option for demonstrating that the agreement resulted from mediation is, of course, the mediator’s signature on the mediated agreement itself. This might be the simplest and neatest method of satisfying the requirement. Although in some jurisdictions, including in Singapore, it is not the practice to do so. It is not the practice to include the mediator as a party to the agreement. In other words, on occasion, if the parties subsequently disagree on the terms, it should not be open to the parties to call the mediator as a witness to come and give a testimony as to what actually transpired. So, for that reason, mediators generally do not sign off on the mediated agreement itself.

But as Prof Fatimah Lateef correctly points out, there are other options that this Bill has made available, other mechanisms by which this can be done. One option is that separate document that I mentioned earlier, signed by the mediator who conducted it. If none of these available options can be used to prove, then parties can rely on clause 6(1)(b)(iv), which states that "any other evidence" acceptable to the authority before which the application is made can be used.

So, it might well be a combination of emails, something in writing, something verbal, which goes towards proving that the mediation took place and that this agreement arose as a result of those discussions and negotiations.

On the requirement for a certified English translation of a settlement agreement drafted in a foreign language to be provided to the Court, Prof Fatimah Lateef asked whether the Bill will provide for a list of approved translators globally. Consistent with the usual practice of proceedings in our courts, parties are free to engage their own qualified translators for the translation for the purposes of clause 6(4) of the Bill. Neither the Convention nor the Bill stipulates a list of approved global translators nor is there a requirement to provide such a list.

Let me turn to some questions now on the standards of mediations, standards of mediators and also ensuring consistency.

Mr Louis Ng asked if the intention is for the industry to self-regulate or if MinLaw intends to consolidate a single set of standards. Mr Patrick Tay and Mr Ng also asked about the definition of serious breaches and what might warrant the Court’s refusal of an application under the Bill. Prof Fatimah Lateef noted that local frameworks and culture may drive the conduct of mediation differently in each country, which is a fair point, and queried whether and how the Bill will ensure consistency and standards for mediators before whom agreements are concluded.

First, as noted by Prof Fatimah Lateef herself, given the varying nature of mediation and the forms it can take across different countries, languages, cultures, it would itself be a challenge to now prescribe common standards applicable across different countries which signed up to the Convention as being the applicable standards for mediation in all cases. In fact, the UN Working Group, when looking at the issue, considered an illustrative list of examples of potentially applicable mediator standards.

But these are standards that we would not be surprised to see in any application to enforce an arbitral award or a court order, or indeed, a mediated settlement agreement. So, these are issues such as the independence of the mediator, the impartiality, confidentiality and whether or not there has been natural justice and fair treatment of the parties. These are all standards that you find in one form or another replicated in the Bill. At the same time, the Working Group also noted that standards and applicable standards might change, might shift. There might be more or less emphasis on one point or another subsequently.

Accordingly, neither the Convention nor the Bill sets out standards that are prescribed upfront and become immutable over time, applying to the mediator or to the mediation itself. In addition, I would also note that the mediation landscape in Singapore is still developing. We are about six months out from the Convention. We do not currently have plans to impose a regulatory regime on mediators for the time being.

At the same time, Mr Louis Ng is right in noting that mediation institutions like the SMC and SIMC already require mediators on their panels to adhere to a code of conduct. We also have the SIMI, the accreditation body for mediation in Singapore, which sets standards for mediator training and also accreditation. If the mediators are from certain professions, such as the legal profession or the accounting profession, they will also be subject to their professions' own set of standards on ethical rules and other professional guidelines.

To the extent that there are in fact such "applicable" standards based on the mediator’s licensing regime, due to the parties’ agreement with the mediator, or pursuant to the rules of an administering institution, these standards, and consequently, whether there has been a "serious breach" or not, are to be determined by the competent authority hearing an application under the Bill, in other words, the Courts.

As I am sure Mr Christopher de Souza and Mr Patrick Tay would know, the Courts would apply those standards, looking at it in the context of what it means by drawing parallels with arbitrator misconduct for instance, or the rules of how a fair arbitration might have taken place. Those principles, whilst not directly relevant to a mediation in the same way, would no doubt guide the conduct of the Courts as to what comprises "serious breach". This is to ensure that mediator and mediation standards continue to be upheld and are not undermined in the process of concluding a settlement agreement.

Sir, I believe I have covered all the queries raised by Members. Let me conclude by saying that we are hopeful that as the Convention comes into force, more and more parties will see the benefit of mediation and through it, as Mr de Souza points out, the Courts will receive more and more applications and through that, develop a body of jurisprudence as to how to administer, apply and, in some cases, refuse to apply or refuse to enforce such agreements.

Singapore continues to position itself as a thought leader, as a hub, as I mentioned at the outset, for all forms of dispute resolution. And with the Convention and this Bill, we will expect to see that the third of the more popular areas of dispute resolution will now have an avenue for cross-border enforcement, that, in our view, will promote international trade.

With the milestone that we have achieved with the Convention, Mr Deputy Speaker, we believe that this Bill will bring rich and varied opportunities to our businesses, mediation institutions and professionals and also our legal profession. Sir, with that, I beg to move.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai].

Bill considered in Committee; reported without amendment; read a Third time and passed.