Recognition and Enforcement of International Mediation Settlement Agreements under the relevant Hague Conventions

Saito, H. (Speaker)

Activity: Talk, presentation, public lecture, public engagement, outreach and knowledge exchangeConference presentation

Activity

I was selected as a speaker of one of the Parallel Session, ADR for the 8th Conference of the Journal of Private International Law in Munich, Germany. I gave 15 minutes presentation and received a number of questions from the audience.

Description

International commercial mediation has become an attractive dispute resolution mechanism for business people. Moreover, an increasing number of states have adopted, or will adopt, the rules to promote mediation and conciliation in the course of court proceedings. However, the possibility of recognition and enforcement of mediation settlement agreements approved by a court or concluded in the course of court proceedings has not been researched well. To analyse this possibility, these two instruments are relevant: the Hague Convention on Choice of Court Agreements, and the draft Hague Convention on Recognition and Enforcement of Foreign Judgments. It should be noted that the draft Convention on International Settlement Agreements Resulting from Mediation prepared by the UNCITRAL Working Group II, intentionally excluded mediation settlement agreements made in the course of the court proceedings from its scope. Therefore, the Hague Conventions were focused here.

In this presentation, recognition and enforcement of mediation settlement agreements concluded in three selected jurisdictions were examined: England and Wales, France, and Japan. In England and Wales, historically, once the parties have commenced the court proceedings and reached a settlement, the parties request a court to make a consent order which is considered as a judgment under the Hague Conventions. Mediation settlement agreements concluded after the initiation of the court proceedings may be formed as a mediation settlement enforcement order. On the other hand, French and Japanese courts may approve a settlement concluded between the parties in the course of the proceedings as a judicial settlement (transaction judiciaire). Both Hague Conventions have a specific provision for enforcement of judicial settlements. Furthermore, Japan has civil conciliation before the court which is conducted by conciliation committee consisting of a judge and two conciliation commissioners. A reached conciliation settlement agreement can be converted into a record of the court and is given the same status as a final judgment.

Lastly, this presentation led to the discussion whether different effects arising from consent orders and judicial settlements under the Hague Conventions are reasonable. Under the Conventions, a consent order can be recognised and enforced while a judicial settlement can only be enforced. The Conventions intended to exclude res judiciata effects on a judicial settlement but to admit res judicata effects on a consent order.
Period14 Sep 2019
Event titleThe 8th Conference of the Journal of Private International Law
Event typeConference
LocationMunich, Germany
Degree of RecognitionInternational