UNCITRAL continues to make progress towards improving the enforcement of settlement agreements which follow from conciliation or mediation in commercial cases.
In 2014, UNCITRAL agreed that a Working Group should consider the issue of enforcement of settlement agreements resulting from international commercial mediation or conciliation. This was based on a proposal from the US delegation, addressing a perceived need for greater ease of enforcement of settlement agreements that had not been converted into formal judgments or arbitration awards.
Progress has been made by the Working Group in 2016, leading to greater clarity as to any likely final proposal.
The Working Group has developed a concept of a framework for conciliated settlement agreements akin to the New York Convention on the Recognition and Enforcement of Arbitral Awards. This would provide greater legal certainty for the business community, and lead to greater harmonization as to enforcement of conciliated settlement agreements.
The proposed definition of a settlement agreement for the purposes of the convention is: “A settlement agreement is an agreement in writing that is concluded by the parties to a commercial dispute, that results from conciliation, and that resolves all or part of the dispute.”
The settlement agreement needs to be in writing (though the impact of electronic communications remains to be considered fully). The reference to commercial law is intended to exclude consumer, family and employment law matters, though again the parameters of each exclusion require definition. Settlement agreements recorded in a judicial or arbitral decision should not fall within the proposed convention, as this would lead to unacceptable overlap with other instruments eg New York Convention on the Enforcement and Recognition of Arbitral Awards. However, settlement agreements reached in the course of proceedings, but not recorded in the formal decision, would fall within the scope of the proposed convention.
A “conciliated” settlement is meant to refer to a broad understanding of the “conciliation”, cross-referring to the expansive definition at Article 1(3) of the UNCITRAL Model Law on International Commercial Conciliation. Mediation (a term more familiar to English lawyers) is encompassed within conciliation.
Significant further consideration will be undertaken by the Working Group in order to set parameters and hammer out the terms of a possible Convention. For those lawyers who have worried over how to enforce a settlement agreement – and whether it should be converted into some sort of award for safety’s sake – this development provides welcome news.