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 THE SINGAPORE CONVENTION:
Is THIS THE NEW YORK
CONVENTION FOR MEDIATION?

Suraj Sajnani*

This article critically compares and contrasts the UNCITRAL Convention

on Enforceability of Settlement Agreements Resulting from International
Commercial Mediation (Singapore Convention) and the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards Convention. It
methodically analyses the grounds for refusal under each of the two conventions
and explores whether existing Hong Kong case law on enforcement of arbitral
awards can be applied to new cases that will arise out of the Singapore
Convention. It also considers how the Singapore Convention can be enacted in
Hong Kong law and some matters that lawmakers should bear in mind.

1. Introduction

In its infancy, the recently signed UNCITRAL Convention on

Enforceability of Settlement Agreements Resulting from International
Commercial Mediation (Singapore Convention) is being referred to
as "The New York Convention for Mediation".1 Why is the Singapore
Convention being compared to the "New York Convention"? There are
two reasons for this.
The first is that, at its core, the Singapore Convention is trying to
do for mediated international settlement agreements what the New
York Convention does for foreign arbitral awards: permit cross-border
enforcement, in a uniform manner, and on a very wide scale.
The second reason is because of the unmatched impact that the New
York Convention has had on international dispute resolution.' As at the
date of writing, the New York Convention has 161 signatories. Despite being
60 years old, the New York Convention is still very much a "live" creature in

LLM Arb and DR (HKU), LLB (City U), PCLL (City U); MCIArb; Solicitor, Hong Kong and
England and Wales.
I Panel discussion topic at Conference on International Arbitration and Mediation, 2 November
2018, Fordham Law School, Moderator: Joseph E Neuhaus, available at https://www.fordham.
edu/info/25756/conference_on_international_arbitration_and_ mediation (visited 18 November
2018).
2 In this article, references to "New York Convention" are to the 1958 Convention on the
Recognition and Enforcement of Foreign Arbitral Awards.
864 Suraj Sajnani (2020) HKLJ

that new signatories are added almost each year, with Maldives and Papua
New Guinea being the latest additions in 2019. The New York Convention
is commonly regarded as one of the most successful treaties in the world in
respect of international dispute resolution, with its number of signatories
nearly the same as the Washington Convention (also known as the "ICSID
Convention", which established and governs the International Centre for
Settlement of Investment Disputes, with 162 signatories),3 and far surpassing
the various Hague Conventions, including the Hague Convention on
the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters with 73 signatories and the somewhat obsolete Hague
Convention on Foreign Judgments in Civil and Commercial Matters with
five signatories (Hague Foreign Judgments Convention).4
One should pause here to note the polar opposite status difference
between the New York Convention and the Hague Foreign Judgments
Convention: the New York Convention, dealing with awards granted
after a consensual arbitration process, is one of the most successful
dispute resolution treaties in the world, whereas the Hague Convention
on Foreign Judgments, dealing with judgments handed down by national
courts, is one of the least successful dispute resolution treaties in the
world. This is important. On the dispute resolution spectrum, litigation in
national courts lies at one far end and is signified by (1) often mandatory,
non-consensual jurisdiction, (2) adjudicative nature, (3) high degree of
formality, and (4) lack of party control.5 While at the direct opposite
end of that spectrum one would find direct party-to-party negotiation.
Arbitration and mediation fall somewhere in the middle, with arbitration
being closer to litigation on account of its ultimate mandatory decision
(even though election of the process is consensual), and mediation being
closer to direct party-to-party negotiation. If one then makes a connection
between (1) the number of signatories of the New York Convention
and Hague Convention mentioned above, on the one hand, and (2)
the nature of litigation and arbitration, on the other hand, one will see
that once the underlying forum moved from a mandatory process where
parties have little control (ie litigation) to a consensual process where

3 Database of ICSID member states, International Centre for Settlement of Investment Disputes,
World Bank Group, available at https://icsid.worldbank.org/en/Pages/about/Database-of-
Member-States.aspx (visited 18 November 2018).
4 Status Table, Convention of 15 November 1965 on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters, Hague Conference on Private
International Law, available at https://www.hcch.net/en/instruments/conventions/status-
table/?cid=17 (visited 18 November 2018); Status table, Convention of 1 February 1971 on the
Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, Hague
Conference on Private International Law, available at https://www.hcch.net/en/instruments/
conventions/status-table/?cid=78 (visited 18 November 2018).
s S Sihombing, "The ADR Spectrum" in Mediation in Hong Kong: Law and Practice (Hong Kong:
Wolters Kluwer, 2014).
Vol 50 Part 3 The Singapore Convention 865

parties have increased control, including the control to appoint their own
arbitrator (ie arbitration), the global community was much more keen to
sign up to a convention that requires each state to give effect to a result
from the consensual process (arbitration) than the mandatory process
(domestic litigation). That is understandable, seeing as the court systems
in many parts of the world are still developing and continue to be plagued
by corruption and a lack of due process and natural justice.
For mediation, the above conclusion is a terrific sign. If the reasoning
above holds true, in a very short time we should see huge interest by states
looking to sign up to the Singapore Convention, because it requires them
to give effect to the result of a private, wholly consensual process. The
result too, unlike arbitration, is wholly consensual. As such, one might
make the argument that a "New York Convention for mediation" (ie the
Singapore Convention) might attract even more interest than the original
New York Convention for arbitration, because the results of mediation are
wholly consensual, achieved through a process of self-determination.
In light of the above, this article sets out to explore: (1) the similarities
and differences in principle between the New York Convention and
Singapore Convention, (2) the specific grounds for refusal of enforcement
under the New York Convention and Singapore Convention, and (3)
how the Singapore Convention should be enacted into domestic law,
with a focus on Hong Kong law. In doing so, it considers whether Hong
Kong case law on enforcement of arbitral awards may be applicable to
Singapore Convention cases.

(a) The Similarities and Differences in Principle between

the New York Convention and Singapore Convention
A close reading of the preambles of these two conventions is insightful.6
The preamble of the New York Convention "[recognises] the growing
importance of international arbitration as a means of settling disputes"
and sees the convention as one of several measures "for increasing the
effectiveness of arbitration in the settlement of private law disputes".7 The
United Nations act which concluded the New York Convention expressly
states that "additional measures should be taken" in the field of enforcement
of international arbitral awards, and requested, among other things, that
wider diffusion on arbitration laws, practices and facilities be carried out,
so as to support the arbitral process.8 In sum, the preamble to the New York
Convention confirms that convention was a means of charting a new way

6 Preamble in UN final draft, A/73/17.

7 Introduction to the New York Convention, United Nations (New York, 2015).
a Final Act of the United Nations Conference on International Commercial Arbitration
(E/CONE26/8Rev.1).
866 Suraj Sajnani (2020) HKLJ

forward and encouraging resolution through arbitration - a means which,

in its modem form, was yet embryonic at that time.
In contrast, the Singapore Convention champions mediation as
a method of resolution that has already shown demonstrable results.
The Singapore Convention holds itself out as a response to the already
increased use of mediation, rather than a guiding light to encourage
something new (like the New York Convention). The preamble of the
Singapore Convention "[recognises] the value for international trade of
mediation ... [notes] that mediation is increasingly used in international
and domestic commercial practice as an alternative to litigation ... [and
considers] that the use of mediation results in significant benefits, such
as reducing the instances where a dispute leads to the termination of a
commercial relationship".9 To a certain extent, the Singapore Convention
casts the increased use and importance of mediation as a fait accompli,
rather than a sign of times to come (as the New York Convention casted
arbitration in 1958). It is, simply put, a confident opening, and one that
is quite different from the New York Convention.
A key similarity between the two conventions is the draw that they
have to bring commercial parties closer to arbitration and mediation,
and away from other methods of dispute resolution. The New York
Convention allows enforcement of arbitral awards, that is, written results
at the end of a process whereby the parties "submit to arbitration all or
any differences which have arisen or may arise between them in respect
of a defined legal relationship, whether contractual or not, concerning
a subject matter capable of settlement by arbitration". Similarly, the
Singapore Convention "applies to an agreement resulting from mediation
and concluded in writing by parties to resolve a commercial dispute".
The application of the Singapore Convention serves to encourage
mediated settlements, rather than other commercial settlements as a result
of direct party-to-party negotiations, just as the New York Convention
encourages arbitration, rather than say litigation or adjudication. This
draw to mediation rather than direct negotiation is very important
because (1) mediation is already recognised as an important and often
used pillar of dispute resolution, and (2) the Singapore Convention serves
to encourage that further.
For context, it is also important to note the timing at which the
Singapore Convention is due to come into force. The flavour for the past
decade had been "multi-tiered dispute resolution", which allows parties
to go from tier to tier, towards forms of resolution with more mandatory

9 Preamble to the United Nations Convention on International Settlement Agreements

Resulting from Mediation.
I Singapore Convention art 1(1).
Vol 50 Part 3 The Singapore Convention 867

outcomes. However, over the past several years, the concept of "mixed
mode dispute resolution" has gained a lot of traction. In addition to
allowing tiered dispute resolution, "mixed mode dispute resolution"
allows parties to shuttle in and out of different forms of dispute resolution.
This provides increased flexibility and takes into account the realities of
dispute resolution, namely that parties' appetite for negotiated agreements
changes based on a variety of factors. Those factors include fluctuating
commercial factors and deeper appreciations of merits of one's cases
throughout the progress of an arbitration. The increase in attention to
"mixed mode resolution" can be seen in:

(1) the Hong Kong International Arbitration Centre's latest 2018

Administered Arbitration Rules, which expressly provide a stay
procedure to allow parties to shuttle in and out of mediation (art
13.8 of those rules);
(2) the arb-med-arb protocol of the Singapore International
Arbitration Centre and Singapore International Mediation
Centre; and
(3) the increase in the number of working groups studying the
concept of mixed mode dispute resolution, such as the joint task
force of the International Mediation Institute and Pepperdine
University on Mixed Mode Dispute Resolution.

Mixed mode dispute resolution and mediation are also set to play a
huge role in Belt and Road disputes. Commentators have opined that
the idea of a "more collaborative and efficient approach" in dispute
resolution is currently attractive to disputing parties, and that mediation
should strongly be considered; this sentiment has particularly been true
for Asia." At a recent panel on Belt and Road Disputes during Hong
Kong's 2018 Arbitration Week, speakers opined that "mediation will play
a prominent role in the future of [Belt and Road Initiative] disputes and
that the arbitration community will need to respond to Chinese demand
for mediation and mixed-mode arbitration".1
The words "Foreign" and "International" in the titles of each convention,
while in isolation are synonyms for each other, mean completely different

" International Mediation Institute, "Mixed Mode Task Force", available at https://www.
imimediation.org/about-imi/who-are-imi/mixed-mode-task-force/ (visited 18 November 2018).
1 Herbert Smith Freehills, "Shaping the Future of Dispute Resolution: Global Themes and
Regional Differences Revealed", available at https://hsfnotes.com/asiadisputes/2018/05/18/
shaping-the-future-of-dispute-resolution-global-themes-and-regional-differences-revealed/
(visited 18 November 2018).
13 "Meeting the Challenges of Belt and Road, Commercial Dispute Resolution" (30 October 2018),
available at https://www.cdr-news.com/categories/singapore/8716-meeting-the-challenges-of-
belt-and-road (visited 18 November 2018).
868 Suraj Sajnani (2020) HKLJ

things in the context of each convention. In the New York Convention,

the word "foreign" applies in respect of the arbitral award, that is, the
end result at the end of an arbitration process. On the other hand, in the
Singapore Convention, the word "international" describes the mediation
process, rather than its end result. The New York Convention applies to
recognition and enforcement of arbitral awards "made in the territory
of a State other than the State where the recognition and enforcement
of such awards are sought"." The Singapore Convention applies to
settlement agreements which are international, in that (1) the parties
have their places of business in different states, or (2) the state where
parties have their places of business is different from (a) the state in
which a substantial part of the obligations are to be performed or (b)
the state, which the subject matter of the settlement agreement, is most
closely connected to.15 Accordingly, existing case law on the application
of the New York Convention will likely have limited precedential value
for Singapore Convention cases, as the test for application in the two
conventions is different. A raft of disputes can thus arise with respect to
the interpretation of the two different tests in art 1(b) of the Singapore
Convention, not least with regard to the words "substantial part of the
obligations" and "most closely connected", the latter of which appears
to borrow from conflicts of laws jurisprudence in which the closest
connection test is applied to determine the governing law of agreements.
Arguably, common law cases on the closest connection test (rather than
New York Convention case law) will have precedential value.
Disputes can also arise with regard to the exempting provisions in
art 1(2) of the Singapore Convention. For instance, does the convention
apply to a situation where a party is dealing as a consumer in a transaction
for commercial purposes, for example a company purchasing a car, as
a consumer, for employee use? It is unclear whether art 1(2)(a) of the
Singapore Convention is looking to exclude all consumer transactions
or limiting only consumer transactions with no commercial elements,
thereby including consumer transactions conducted by companies.
While the reason for the above difference in approaches to application
is obvious - mediation agreements do not have a place of domicile in
the same way that arbitration awards do, that is, the arbitral seat
-

this serves to limit the value of the Singapore Convention in its early
days. In contrast, one of the key benefits of the New York Convention
is predictability: there is already a raft of case law on the New York
Convention interpreting what each term means. Any differences in the

1 New York Convention art 1(1).

15 Singapore Convention art 1.
Vol 50 Part 3 The Singapore Convention 869

text of the Singapore Convention from the New York Convention, even
if necessary, will limit the value that the Singapore Convention can
immediately bring because of the litigation that may follow, at least for
the first several years in which the Convention enters into force.
Another interesting exclusion from the Singapore Convention is
that it does not apply to settlement agreements approved by a court and
which are domestically enforceable. This was a compromise solution to
tie together several divisive issues that emerged during the negotiation
and drafting of the Singapore Convention. 16 For Hong Kong (who, in any
event, is represented at the United Nations by the PRC, rather than in its
own standing), this might have been the losing end of the compromise.
The reason for this is that this exclusion excludes consent judgments
granted by the Hong Kong court from being enforced under the Singapore
Convention. An underlying objective of the Rules of the High Court of
Hong Kong (Cap 4A) (RHC) is that the rules "facilitate the settlement
of disputes"." In practice, a settlement reached while court proceedings
are ongoing can be recorded in the form of a consent judgment. 18 A
consent judgment is given effect as a judgment of the Hong Kong High
Court. 19 The Singapore Convention's exclusion means that settlement
agreements that are recorded using the consent judgment mechanism of
the Hong Kong High Court cannot be enforced under the Convention.
Unless Hong Kong's applying legislation specifically includes consent
judgments within the scope of the Singapore Convention, Hong Kong
disputants face a very tough choice:

(1) record a settlement through the Court's consent judgment

mechanism in order to take advantage of the methods of
enforcement provided for under Hong Kong law (eg garnishee
proceedings, charging orders); or
(2) record a settlement through a private agreement, conduct further
enforcing litigation on the settlement agreement in Hong Kong
so as to receive a judgment of the Court (not being a consent
judgment) so as to enforce locally under the judgment and
retain a means of overseas enforcement under the Singapore
Convention.

The upside is that recourse to the Singapore Convention should,

hopefully, be required a lot less frequently than recourse to the New York

1 T Schnabel, "The Singapore Convention on Mediation: A Framework for the Cross-Border

Recognition and Enforcement of Mediated Settlements" (2019) 19(1) Pepp Disp Resol LJ 5.
1 RHC r 1(e) O 1A.
i Ibid., r 5A O 42.
19 Note 17 above.
870 Suraj Sajnani (2020) HKLJ

Convention: due to the fact that mediated settlements are achieved

through a process of self-determination, one would expect a high
degree of compliance; in fact, one would expect that the norm would be
voluntary compliance, rather than the norm in arbitration which is often
of non-compliance due to (1) the fact that the decision is ultimately one
which the parties have no control over, and (2) there is by definition a
"winning" party and a 'losing" party.20
A similarity is that both conventions require mediators and
arbitrators to work hard to ensure enforceability. Under the New York
Convention, awards can be challenged, largely because of a lack of
procedural integrity. In an arbitration, ultimately, the determination
of procedure is the responsibility of the arbitrator (absent party
agreement)." Accordingly, a successful challenge to enforcement may
draw judgmental eyes to the practice of the arbitrator or arbitrators that
handed down the plagued award. Similarly, the Singapore Convention
largely limits grounds for refusal of enforcement to procedural grounds
(with some exceptions, discussed in Section 1(b) below). Accordingly,
the Singapore Convention is likely to require mediators to work extra
hard to ensure a rock solid, and enforceable agreement; in practice,
mediators will have to do this without the support of an institute which
carries out scrutiny (as is the case for arbitration by certain institutes
such as the International Chamber of Commerce's International Court
of Arbitration and the Singapore International Arbitration Centre,
which scrutinise the arbitral award). However, mediators will need
to do this while ensuring not to cross a line of discouraging certain
remedies that are difficult to enforce, particularly because the beauty
of mediation is that it allows a much broader range of outcomes than
methods such as arbitration or litigation.
One additional difference is that the Singapore Convention does not
require a "recognition" process in the local jurisdiction to be carried out,
as arbitral awards require.

(b) The Specific Grounds for Refusal of Enforcement under

the New York Convention and Singapore Convention
In this section, a comparison is carried out between each ground for
refusal of enforcement of the Singapore Convention and grounds in the
New York Convention, in order to assess whether New York Convention
case law would have precedential value in Singapore Convention cases.

2 Schnabel (n 16 above) p 3.
1 UNCITRAL Model Law on International Commercial Arbitration (Model Law) art 19.
Vol 50 Part 3 The Singapore Convention 871

Singapore Convention art 5(1)(a) New York Convention art V(1)(a)

A party to the settlement agreement
was under some incapacity.
The parties to the agreement referred
to in art II (ie the arbitration
agreement) were, under the law
applicable to them, under some
incapacity.

The principles underlying application of this ground are identical.

Accordingly, New York Convention case law on this ground will be
applicable to Singapore Convention application.

Singapore Convention art 5(1)(b)(i) New York Convention art V(1)(a)

The settlement agreement sought
to be relied upon is null and void,
inoperative or incapable of being
performed under the law to which the
parties have validly subjected it or,
failing any indication thereon, under
the law deemed applicable by the
competent authority of the Party to
the Convention where relief is sought
under art 4.
The said agreement is not valid
under the law to which the parties
have subjected it or, failing any
indication thereon, under the law
of the country where the award was
made.

There are two key differences between the Singapore Convention

and the New York Convention with respect to this ground. First, the
Singapore Convention scrutinises the settlement agreement, that is,
the result of the mediation process. A mediated settled agreement in a
commercial dispute often benefits from having been (1) scrutinised by
a mediator, (2) scrutinised by parties' dispute resolution lawyers, and
(3) drafted very carefully as the parties' are at a somewhat warring state.
In contrast, arbitration agreements are not a result of formal processes
and are often (1) entered into contracts at the 11th hour, (2) drafted by
transactional lawyers rather than dispute resolution lawyers, or borrowed
from precedents which may not be appropriate, and (3) not scrutinised in
any great detail because of the parties' optimistic belief that the chance
they rely on them is very low ("what could go wrong?"). Accordingly,
the above ground is likely to be more frequently used in the context of
arbitration agreements rather than mediated settlement agreements.
Additionally, each of these types of agreements has different
requirements. In particular, arbitration agreements require that parties
validly submit to arbitration. In contrast, settlement agreements do not
generally have any predetermined requirements, in addition to general
principles of contract law. However, the interpretation by courts of the
872 Suraj Sajnani (2020) HKLJ

words "null and void, inoperative or incapable of being performed" when

looking at New York Convention cases may be helpful. 2 Accordingly,
New York Convention case law relating to the application of this ground
is likely to have limited applicability to this Singapore Convention
ground.
The second key difference is that the New York Convention merely
uses the word "valid", whereas the Singapore Convention allows non-
enforcement if the settlement agreement is "null and void, inoperative
or incapable of being performed". This Singapore Convention wording is
borrowed from art 8 of the UNCITRAL Model Law. That article deals with
situations in which a court needs to refer a dispute to arbitration rather
than allow it to be pursued in court. While case law on that Model Law
article may assist in interpretation of the above Singapore Convention
ground, it is not likely to be particularly useful because understanding
when a settlement agreement is "null and void or inoperative or incapable
of being performed" is likely to require a different analysis compared to
when an arbitration agreement fulfils that criteria.

Singapore Convention art 5(1)(b)(ii) New York Convention art V(1)(e)

and 5(1)(b)(iii)
The settlement agreement sought to
be relied upon is not binding, or is
not final, according to its terms or has
been subsequently modified.
The award has not yet become
binding on the parties or has
been set aside or suspended by a
competent authority of the country
in which, or under the law of which,
that award was made.

Here, both grounds deal with the result of the dispute resolution
process, that is, the settlement agreement and the arbitral award.
While on the face of it, the rationale for each of these grounds is
similar, namely, not to allow enforcement of a resolution which has
no currency, the practical approach to application is entirely different:
whether an award is binding will require a different analysis compared to
whether a settlement agreement is binding. Similarly, whether an arbitral
award has been set aside or suspended has no relevance to the analysis
of whether a settlement agreement has been subsequently modified, as
modification can be achieved, at least in Hong Kong, by mere agreement,
whereas setting aside of an arbitral award requires the intervention of a
court. Accordingly, New York Convention case law will have little value.

2 Travaux pr6paratoires of the Singapore Convention, A/CN.9/861 - Report of Working

Group II (Arbitration and Conciliation) on the work of its 63rd session (Vienna, 7-11
September 2015), para 92.
Vol 50 Part 3 The Singapore Convention 873
Vol 50 Part 3 The Singapore Convention 873

Singapore Convention art 5(1) (f)
There was a failure by the mediator to
disclose to the parties circumstances
that raise justifiable doubts as to the
mediator's impartiality or independence
and such failure to disclose had a
material impact or undue influence
on a party without which failure that
party would not have entered into the
settlement agreement.
New York Convention art V(1) (d)
The composition of the arbitral
authority ... was not in accordance
with the agreement of the parties
or, failing such agreement, was not
in accordance with the law of the
country where the arbitration took
place.

Typically, concerns relating to doubts with regard to an arbitrator's

impartiality or independence fall to be determined under art V(1)(d)
of the New York Convention. This is because the agreement of the
parties to a certain set of arbitral rules or to the lex arbitrioften imposes a
requirement with regard to impartiality and independence of an arbitrator
(for instance, art 12 of the Model Law, and s 25 of the Arbitration
Ordinance (Cap 609) (Arbitration Ordinance)). As such, case law on
arbitrator challenges and non-enforcement on the basis of arbitrator
challenges will be of guiding value in understanding the meaning of
"justifiable doubts", "impartiality" and "independence", in the context of
the Singapore Convention. However:

(1) there is little guidance as to whether the same standard of

independence and impartiality applies to mediators as it does
to arbitrators. In fact, in some cultures, parties prefer to have a
mediator who is not independent and is instead influential on
parties, so as to achieve settlement; and
(2) the IBA Guidelines on Conflicts of Interest in International
Arbitration, even though not strictly binding, are of huge value
when determining whether a situation causes justifiable doubts
as to an arbitrator's impartiality and independence. Grounds
therein are catered to arbitration, not mediation.

Accordingly, the interpretation of these terms in the context of the

Singapore Convention is still likely to be subject to dispute before a
settled understanding is achieved.

Singapore Convention art 5(2)(a) New York Convention art V(2)(b)

Granting relief would be contrary to Recognition and enforcement of
the public policy of the state in which the award would be contrary to
enforcement is sought. public policy of the country where
enforcement is sought.
874 Suraj Sajnani (2020) HKLJ

To start, there is a very limited number of case law indicating what

public policy of a state is (but, a higher number of case law indicating
what public policy is not, because of the various unsuccessful attempts at
challenging an award on this ground).
A Hong Kong court decision worth highlighting is the Court of Appeal's
(CA) decision in Gao Haiyan and Xie Heping v Keeneye Holdings Ltd.23 In that
case, Reyes J at first instance refused enforcement of an arbitral award, inter
alia, because it was preceded by a mediation conducted by the arbitratorin a
hotel in China. Reyes J refused enforcement on the basis that enforcement
would be contrary to public policy (among other grounds).24 The CA did
not agree. Rather, the CA gave great deference to the Xi'an Arbitration
Commission which did not view the mediation as concerning, even though
such a mediation may not be accepted in Hong Kong. The court held that
"[a]s for holding a mediation over dinner in a hotel ... a Mainland court is
better able to decide whether that is acceptable", and stated that although
"one might share the learned Judge's unease about the way in which the
mediation ... was conducted because mediation is normally conducted
differently in Hong Kong, whether that would give rise to an apprehension
of apparent bias, may depend also on an understanding of how mediation is
normally conducted in the place where it was conducted".
The decision in Gao illustrates how public policy with regard to
mediation is a creature of its own, different from public policy with regard
to arbitration. As such, case law on this ground will be of limited value
when determining Singapore Convention challenges.

Singapore Convention art 5(2)(b) New York Convention art V(2)(a)

The subject matter of the dispute The subject matter of the difference
is not capable of settlement by is not capable of settlement by
mediation under the law where arbitration under the law of the
enforcement is sought. country where enforcement is sought.

Similar to the above ground, while the underlying aim of both

provisions is the same, there will be a difference in practical application
because there may be different approaches as to what is capable of
settlement by mediation and what is capable of settlement by arbitration.
The remaining grounds for refusal of enforcement of the Singapore
Convention have no precedent in the New York Convention, namely,
art 5(1)(c), 5(1)(d) and 5(1)(e):
(1) In particular, art 5(1)(c)(ii) may be a cause for concern,
as it adopts an approach very different from the New York

2 CACV 79 of 2011.
24 HCCT 41 of 2010.
Vol 50 Part 3 The Singapore Convention 875

Convention. The New York Convention is focussed only on

allowing successful challenges when the procedural integrity of
the arbitration has been compromised. Article 5(1)(c)(ii) of the
Singapore Convention allows an enforcing court to delve into
an examination of the very terms of the settlement agreement.
It will be important for courts and counsel alike to refrain from
going into detailed substantive considerations apart from certainty
of the terms of the agreement, if the Singapore Convention were
to maintain a similar approach as the New York Convention
whereby the court does not go beyond procedural considerations.
Indeed, the Working Group preparing the text of the Singapore
Convention states that it "should not give the enforcement
authority the ability to interpret the validity defence to impose
requirements in domestic law". 25
(2) Further, art 5 (1)(e) adds a new, and rather ambiguous, ground.
On the face of it, the Singapore Convention provides no
guidance as to which standards are applicable to the mediator or
the mediation. The vagueness is understandable, as (a) mediation
does not yet have as developed a framework of applicable laws and
standards as arbitration, and (b) mediators, unlike arbitrators, are
not typically required by parties to comply with certain standards.
Accordingly, this ground too is likely to be ripe for dispute, with
little prior guiding case law. It is nonetheless acknowledged that
some mediation codes of conduct exist which elaborate on the
meaning of independence and impartiality.26

(c) How the Singapore Convention Should Be Enacted into

Domestic Law, with a Focus on Hong Kong Law
Not being a sovereign state, Hong Kong was party to the New York
Convention prior to 1997 only by virtue of the United Kingdom's
extension of that convention to Hong Kong, and after 1997 by virtue of
the PRC's extension of that convention to Hong Kong. Similarly, Hong
Kong will not be able to sign up directly and instead can only sign up
through the PRC.
As stated above, mediation is highly favoured by Chinese parties, and
disputes along the Belt and Road are likely to require mediation to be in

u Travaux pr6paratoires of the Singapore Convention, A/CN.9/867 - Report of Working

Group II (Arbitration and Conciliation) on the work of its 64th session (New York, 1-5
February 2016), para 160.
6 For example, Hong Kong Mediation and Arbitration Centre's Professional Code of Conduct
for Mediators.
876 Suraj Sajnani (2020) HKLJ

the toolkit of possible resolution methods. While it is beyond the scope

of this article to determine whether or not the Singapore Convention
is appropriate for the PRC (even though the short answer is likely to be
"yes because of the popularity of mediation in the PRC"), Hong Kong's
participation in the Singapore Convention will necessarily be contingent
on the PRC's participation in it.
The Singapore Convention should be ratified for Hong Kong, largely
due to Hong Kong's status as an Asian dispute resolution hub. Despite
the fact that New York Convention case law will have little precedential
value in Singapore Convention cases, the Singapore Convention is
nonetheless likely to be the closest equivalent for mediation.
Rather than adopt a "direct application" by cross-reference method, or
the novel approach of the Arbitration Ordinance which copied verbatim
articles of the UNCITRAL Model Law directly into it, the neatest approach
for adopting the Singapore Convention is likely to be by insertion of a new
division, by amendment, in the Mediation Ordinance (Cap 620).
In particular, it ought to be considered whether:

(1) to reserve application of art 1(3)(a)(i) of the Singapore

Convention, thus not to impinge upon the benefit that consent
judgments can bring;
(2) to enact a code of conduct for mediators and referring specifically
to such code in the Mediation Ordinance equivalent of art
5 (1)(e) of the Singapore Convention. In this regard, a similar

approach is being carried out with respect to third party funding

in arbitration in Hong Kong whereby a code of conduct has been
established on 7 December 2018;x" and
(3) modifying the definition of "mediated settlement agreement" in
s 2 of the Mediation Ordinance to include a writing requirement,
thereby harmonising it with art 1(1) of the Singapore Convention,
which includes a writing requirement for enforcement.

2. Conclusion

Even if recourse to the Singapore Convention is set to be limited, and its

initial application the subject of some uncertainty, states ought not to shy
away from signing up to the Convention, as it is likely to encourage best
practice by mediators.28

n Hong Kong Government Gazette GN 9048, available at https://www.gld.gov.hk/egazette/

pdf/20182249/egn201822499048.pdf (visited 18 November 2018).
" Mischon de Reya, "The Singapore Mediation Convention: A Game Changer?", available at
https://www.mishcon.com/news/briefings/the-singapore-mediation-convention-a-game-changer
(visited 18 November 2018).