ARTICLE
13 September 2024

The Singapore Convention On Mediation: A New Regime For Settlement Of International Commercial Disputes In Nigeria?

GE
G ELIAS

Contributor

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At its 73rd session held on December 20, 2018, the United Nations General Assembly (the "UNGA") adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation...
Nigeria Litigation, Mediation & Arbitration

Introduction

At its 73rd session held on December 20, 2018, the United Nations General Assembly (the "UNGA") adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Singapore Convention" or "Convention"). While the Convention opened for signatures on August 7, 2019, Nigeria ratified it only on November 27, 2023, by depositing the instrument of ratification at the United Nations Secretary-General's office. This made Nigeria the 13th state party to the Convention and bound to its provisions internationally.

The Convention was subsequently incorporated into Nigerian law with the passage of the Arbitration and Mediation Act 2023 (the "AMA" or the "Act"), giving it the force of law within Nigeria.

This domestication of the Convention ushers a new era for international settlement agreements in Nigeria. This article explores the potential opportunities (as well as constraints) for Nigeria in the resolution of international commercial disputes within the framework of the Act and the Convention.

The Status of the Convention under the Act

The instructive provision of the Act which domesticated the Convention is found in Section 87. By that section, international settlement agreements made outside Nigeria are enforceable in Nigeria if (i) the agreement was made in a State that is a party to the Convention and (ii) it is a legal dispute whether contractual or not, which is considered commercial according to Nigerian laws.1

Noteworthy Provisions of the Convention

1. Scope of Application

The Convention applies specifically to international settlement agreements resulting from mediation. A settlement agreement is deemed to be international if at the time of its conclusion, at least two parties to the settlement agreement have their places of business in different States or the State in which the parties have their places of business is different from either the State where a substantial part of the obligations under the agreement is performed or the State with which the subject matter of the agreement is most closely connected.2

What constitutes "place of business" is not defined under the Convention, but precedent suggest that in the case of corporate bodies, it would be construed as the place of the company's central management and control.3

The Convention does not apply to settlement agreements involving personal, family, or household purposes, or those related to family law, inheritance, or employment law4 neither does it apply to settlement agreements that have been approved by a court or concluded during court proceedings and are enforceable as a judgment in that jurisdiction, nor does it apply to settlement agreements that have been recorded and are enforceable as an arbitral award.5

2. Reliance on Settlement Agreements

Under the Convention, before a party can rely on a settlement agreement, it must meet certain requirementssuch as supplying to the enforcing court, the settlement agreement signed by the parties and evidence that the agreement resulted from mediation. Where the agreement is in form of an electronic communication, the Convention deems it as signed by the parties or the mediator if:

  1. a method is used to identify the parties or the mediator and indicate their intention regarding the information in the electronic communication, and
  2. if the method used is either reliable enough for the purpose for which the electronic communication was created or communicated, considering all relevant circumstances and any agreement, or it has been proven to fulfill the identification and intention functions described (i) above, either on its own or with additional evidence.6

To prove that a settlement agreement resulted from mediation, the party may adduce evidence of the mediator's signature on the settlement agreement, tender another document signed by the mediator indicating that the mediation was carried out, provide an attestation by the institution that administered the mediation, or adduce any other credible evidence acceptable by the competent authority.78

3. Expedited Process

The Convention requires that the court of a Party State act expeditiously when considering the request for relief by a party seeking to rely on a settlement agreement.9 Thus, every application for the enforcement of a settlement agreement must be put on the fast-track section of the Member State and concluded by expedited means.

4. Grounds of Refusal

Before the competent court of a Member State can refuse to grant reliefs sought pursuant to a settlement agreement, the party seeking the refusal must furnish evidence that: (i) a party to the settlement agreement was under some incapacity; (ii) the settlement agreement is not binding, null and void, inoperative, or incapable of being performed, is not binding or is not final by its terms, or has been subsequently modified; (iii) the obligations under the agreement have not been performed or are not clear or comprehensible; (iv) there was a serious breach by the mediator of standards applicable to the mediator or the mediation; (v) granting relief would be contrary to the terms of the agreement; or (vi) that the mediator failed to disclose justifiable doubts as to his/her impartiality or independence and such failure had material impact or undue influence on a party.10

The court of a Member State is also allowed to refuse to grant relief if it finds that granting such relief would be contrary to the public policy of that State or that the subject matter of the dispute is not capable of settlement by mediation under the law of that State.1112

5. Parallel Applications or Claims

The Convention allows the court to adjourn its decision for relief if there is a concurrent claim or application relating to the settlement agreement in a court, arbitral tribunal or any other competent authority.13 The authority may also, upon request of a party, order the other party to give suitable security.

6. Other laws or treaties

The Convention does not preclude a party seeking relief under a settlement agreement from seeking relief pursuant to any other law or treaty of the Member State where it seeks such relief.

Footnotes

1 Section 87 of the Act

2 Article 1(1) of the Convention

3 Skye Bank v. Okpara (2015) 17 NWLR (Pt. 1489) 613

4 Article 1(2) of the Convention

5 Article 1(3) of the Convention

6 Article 4(2) of the Convention

7 Courts or other authority designated by a state to perform functions under the convention.

8 Article 4(1)b of the Convention

9 Article 4(5) of the Convention

10 Article 5(1) of the Convention

11 Article 5(2) of the Convention

12 These conditions are replicated in Section 84 of the AMA

13 Article 6 of the Convention

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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