INKOVEMA Podcast „Well through time“
#89 – Singapore Convention on the International Enforcement of Mediated Settlements.
Contractual obligations and enforceable enforcement titles of mediation agreements
In conversation with Prof Dr Simon Heetkamp
Well through time. The podcast about mediation, conflict coaching and organisational consulting.
Simon J. Heetkamp: Judge at the Regional Court on leave since 2022 in favour of a professorship for commercial law at the TH Cologne; 2022 winner of the eJustice Cup of the Hessian Association of Judges
Contents:
Singapore Convention on Mediation: An Introduction
History
The „Singapore Convention on Mediation“ is a milestone in the history of international trade legislation. It was adopted on 7 August 2019 for signing in Singapore and signed by 46 countries on the same dayincluding major economic powers such as the USA and China. The creation of this agreement, which came about on the initiative of the United States, was the result of rapid discussions and negotiations among the member states of the United Nations. Never before has an agreement been developed ready for signature in such a short time.
Area of application
The Singapore Convention provides a harmonised legal framework for the enforcement of mediated settlement agreements in relation to international commercial matters. It was conceived with the aim of facilitating and promoting international trade by Mediation established as an efficient and recognised method for resolving commercial disputes. Countries that ratify the Convention are obliged to enforce settlement agreements resulting from mediation in accordance with their own national rules.
State of development
Since its introduction, the Singapore Convention has received a positive response and has been ratified by a growing number of countries.
In the meantime A total of 55 countries signed the Singapore Conventionbut neither Germany nor any other EU state is involved. After corresponding Ratifications is the recognition and enforcement of mediation results now in ten countries possible (Belarus, Ecuador, Fiji, Qatar, Saudi Arabia, Singapore, Georgia, Honduras, Turkey, Kazakhstan).
The Singapore Convention on Mediation has the potential to make mediation an important tool in the international trade landscape and change the way trade disputes are resolved. But whether it will succeed is by no means a foregone conclusion.
The next ratification is due by Uruguay providedwhich intends to ratify the Convention at national level at the end of September 2023 (LINK).
Criticism
Despite its positive aspects, the Singapore Convention has also attracted some criticism. Some critics point out that the Convention may not be sufficiently detailed, which could lead to ambiguities in its application and enforcement. In addition, there are concerns that the Convention may limit the autonomy of parties in mediation by mandating the enforcement of settlement agreements. There are also concerns that the implementation of the Convention in the domestic legal systems of different countries could pose challenges due to differences in legal systems and cultural norms.
In conclusion, the Singapore Convention represents an important step towards facilitating international trade. Despite the criticisms, it offers a promising approach to resolving trade disputes through mediation and has the potential to significantly shape the international trade landscape.
Legal background: dogmatics of guilt and liability
Debt and liability, having debts and being subject to liability are two different things.
1. debt and liability
Singapore Convention on Mediation: An Introduction
History
The „Singapore Convention on Mediation“ is a milestone in the history of international trade legislation. It was adopted on 7 August 2019 for signing in Singapore and signed by 46 countries on the same dayincluding major economic powers such as the USA and China. The creation of this agreement, which came about on the initiative of the United States, was the result of rapid discussions and negotiations among the member states of the United Nations. Never before has an agreement been developed ready for signature in such a short time.
Area of application
The Singapore Convention provides a harmonised legal framework for the enforcement of mediated settlement agreements in relation to international commercial matters. It was conceived with the aim of facilitating and promoting international trade by Mediation established as an efficient and recognised method for resolving commercial disputes. Countries that ratify the Convention are obliged to enforce settlement agreements resulting from mediation in accordance with their own national rules.
State of development
Since its introduction, the Singapore Convention has received a positive response and has been ratified by a growing number of countries.
In the meantime A total of 55 countries signed the Singapore Conventionbut neither Germany nor any other EU state is involved. After corresponding Ratifications is the recognition and enforcement of mediation results now in ten countries possible (Belarus, Ecuador, Fiji, Qatar, Saudi Arabia, Singapore, Georgia, Honduras, Turkey, Kazakhstan).
The Singapore Convention on Mediation has the potential to make mediation an important tool in the international trade landscape and change the way trade disputes are resolved. But whether it will succeed is by no means a foregone conclusion.
The next ratification is due by Uruguay providedwhich intends to ratify the Convention at national level at the end of September 2023 (LINK).
Criticism
Despite its positive aspects, the Singapore Convention has also attracted some criticism. Some critics point out that the Convention may not be sufficiently detailed, which could lead to ambiguities in its application and enforcement. In addition, there are concerns that the Convention may limit the autonomy of parties in mediation by mandating the enforcement of settlement agreements. There are also concerns that the implementation of the Convention in the domestic legal systems of different countries could pose challenges due to differences in legal systems and cultural norms.
In conclusion, the Singapore Convention represents an important step towards facilitating international trade. Despite the criticisms, it offers a promising approach to resolving trade disputes through mediation and has the potential to significantly shape the international trade landscape.
Debt and liability, having debts and being subject to liability are two different things.
Guilt in the sense of a mandatory obligation is the Obligor's obligation to perform.
In the case of a purchase agreement, for example, the buyer owes the seller the purchase price. If a dispute arises and a new or more specific agreement on the payment terms is reached in mediation, this contract again establishes an obligation under the law of obligations, i.e. an obligation to perform.
Liability means that the debtor's assets are subject to enforcement proceedings of the creditor. If the If the debtor fails to pay the debt owed to him, the creditor can demand payment of the debt by Enforce legal action and compulsory enforcement. The ability to enforce by means of a corresponding enforcement title enables the independent ability, established by state authority (monopoly on the use of force!), to „obtain what is owed“. In this coercive enforcement the liability in addition to the debt is realised. It generally extends to the all of the debtor's assets (so-called unlimited property liability). Exceptionally liability is limited to certain parts of the assets, for example in the case of liability of the heir (§ 1975 BGB).
2. liability without fault
Liability without fault is possible. It occurs when it is not the debtor but a third party grants the creditor a security interest in rem (mortgage, land charge or lien) on an object belonging to him. The third party is then The debtor is not the creditor's debtor, but he is liable to the creditor with the object, cf. §§ 1147, 1204 in conjunction with 1228 ff BGB (so-called pure „material liability“ without personal fault“)
3. debt without liability („imperfect liabilities“)
A debt without liability exists if an obligation is „voluntary“ fulfilled by the debtor, but not by the creditor through legal action and enforcement can be enforced. To In the case of such imperfect liabilities, a distinction must be made between liabilities that are already unenforceable and those that are not. enforceability for this reason, and those which, although actionable, are not enforceable. are not enforceable.
- Uncompensable liabilities are e.g. Gambling, betting (§ 762 BGB) and the so-called marriage broker contract (§ 656), which do not give rise to any liability. With the V(§ 1297 BGB), a liability arises from the to enter into the marriage, but this cannot be enforced. Because of of the liability, other actionable and enforceable claims may arise in accordance with §§ 1298 ff BGB. claims arise.
- To the non-enforceable liabilities include Forders, the fulfilment of which has been sued for and for which a judgement can be issued, the enforcement of which is by way of enforcement is nevertheless not possible. These are the cases of § Section 888 (3) ZPO, i.e. judgements on the establishment of conjugal life and on performance of services from a service contract.
4. excursus: Obligations
Of the perfect and imperfect liabilities, the obligations are must be distinguished. They do not establish a claim to fulfilment for the entitled party nor in the event of infringement by the burdened party a claim for damages (i.e. no „debt“) and do not provide any possibility of legal action and enforcement (i.e. keine „Haftung“). Rather, these are rules of conduct which, if not observed the party burdened with the obligation suffers a loss or a reduction in of a legal position.
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