For mediation to succeed at the international level, it is essential to assure operators that the transaction agreement resulting from such a process will have full effects and can be executed in any State in the World.
In this sense, I have recently published an article entitled “Effectiveness of agreements resulting from international mediation”, in open access in the Spanish Journal of International Law, which turned 75 with a renewal of its image, and which gave me the immense honor of opening the issue. I summarize here the main conclusions of the article, with my gratitude to the International School of Mediation for giving me this space.
What is the starting point to guarantee the effectiveness of the agreements resulting from international mediation?
The same transaction agreement resulting from international mediation can be recognized and executed in other States as an agreement contained in a private document or as a public document, if it is elevated to a public title or judicial approval.
The EU model: the agreement as a public document
In the EU, the Directive 2008/52 of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, represented an extraordinary advance. In it, it was made very clear that the agreement resulting from mediation had to be elevated to a public instrument or judicially approved, so that it could be executed in any EU Member State.
Based on this premise, the EU regulations on private international law will be applied to the agreement resulting from the mediation and elevated to a public document by the authority of an EU Member State, if it is to be executed in another Member State.
Said execution basically implies meeting minimum requirements: that the document does not violate the public order of the State of destination and that it has executive effect in the State of origin.
This means that, at the time of execution in another Member State, the legal validity of the act (capacity, consent, content) should not be entered into. Not in vain, it is presumed that these aspects were controlled at the time of elevation to public status by the authority of the Member State of origin (principle of community trust).
In any case, there are some weaknesses in EU regulations. Will the agreement be a substitute for a judicial resolution? In my opinion the answer must be totally affirmative. For this reason, it must have the effect of res judicata and prevent the dispute from being revisited in a subsequent judicial process. The only exception would be, precisely, if the annulment of the agreement is discussed judicially.
This principle is not provided for in EU regulations, only focused on the executive effect of the public document, but not on the possible effect of res judicata. An exception may be made for international mediation agreements regarding marital crises and parental responsibility. In fact, the Regulation (EU) 2019/1111 regulates the recognition of all the effects of public documents - not just the executive effect -.
Furthermore, this Regulation requires, at the time of recognition and execution, to verify that the authority issuing the title would have jurisdiction equivalent to that of the courts. The reasoning is very logical: if the mediation agreement replaces a ruling, it must come from a State of origin from which a judicial resolution would come.
The UNCITRAL model: the agreement as a private document
In the model of the United Nations Commission on International Trade Law (UNCITRAL), the effects of the mediation agreement are attributed as a private document, without intervention by authority that elevates it to a public document. This is what the United Nations Convention on International Settlement Agreements Resulting from Mediation, dated December 20, 2018, opened for signature in Singapore, on August 7, 2019 (hereinafter Singapore Convention). It is also the proposal of the Model Law on International Commercial Mediation.
The absence of intervention by a public authority at the time of formalizing the agreement justifies that, at the time of its recognition and execution in a State, controls are maximized.
Thus, in the Singapore Convention, controls are established on the parties, so that the agreement is not enforceable if the incapacity of one of the parties is proven. Controls are also articulated over the mediator. In this way, the agreement is not recognized if the mediator incurred a serious breach without which the agreement would not have been made; or if conflicts of impartiality or independence were not revealed and this had a material impact on the agreement or exerted an influence without which said agreement would not have been concluded.
Controls are also articulated over the agreement itself, which is not recognized if: it is void, ineffective or impossible to legally comply with (according to the chosen law or the one considered applicable); or is not binding, definitive or has been subsequently modified; or its object has already been fulfilled or is not clear or understandable.
Finally, ex officio, without the need for the party opposing the execution to allege it, the agreement is not recognized or executed if it is contrary to public policy in the country of destination. Nor, if the difference is not capable of being resolved through mediation in the destination State.
Are both models compatible?
The exposed models, which we could call “publicist” (EU model) and “privatist” (UNCITRAL model), are presented as alternative and compatible with each other. In other words, the EU has provided a legal framework for the circulation of mediation agreements as public documents, but does not prevent Member States from applying their own domestic legislation for the recognition of the mediation agreement as a private document.
Of course, Member States cannot consider ratifying the Singapore Convention on their own. On the contrary, it is up to the EU to ratify said Convention as it is a matter that has already been the subject of European regulation.
A hypothetical ratification by the EU would make the Convention applicable to the recognition of private agreements even between Member States, and regardless of whether or not they are conveyed through a European public document. All of this except for any EU declaration to the contrary at the time of ratification.
This is too structural a change that makes it unlikely that the EU will ratify the Convention, despite the benefits that this could have in relations with third States.
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