Journal of Comparative Law

Journal of Comparative Law

The Analytical Study of the Recognition's Requirement for Settlement Agreement with a Comparative Study in the Singapore Convention and Iranian Law

Document Type : Research Article

Authors
1 Assistant Professor of Private Law Department, Faculty of Law and Political Sciences, Ferdowsi University of Mashhad, Mashhad, Iran.
2 PhD Student of Private Law, Faculty of Law and Political Sciences, Ferdowsi University of Mashhad, Mashhad, Iran.
Abstract
Conciliation, as one of the oldest dispute resolution methods, has not always been favored by individuals and business actors due to the lack of enforceability for the settlement agreement as a result of the mediation process.  One of the most important issues regarding the enforcement of dispute resolution documents in all relevant treaties is the principle of recognition and how to recognize the settlement agreement.  Therefore, recognition of settlement agreements as one of the most important issues of the Singapore Convention will be examined in a comparative study of Iranian law as follows: "Recognition of settlement agreement as its' prevention effect against new litigation", "Recognition of settlement agreement as comparing its' provisions with law of the enforcing courts" and "Recognition of settlement agreement as its' approval in the seat courts". Finally, the article concludes that the Singapore Convention's approach to the requirement for recognition of settlement agreement as its' approval by enforcing courts can be criticized in some respects, but the provisions of the Convention on the possibility of using the settlement agreement to prevent re-litigation and un-necessity of its' approval in seat courts is logical. The current state of the Iranian legal system regarding the recognition of the settlement agreement is not justifiable because in addition to the involvement of various courts in the process of settlement agreement's enforcement, the agreement cannot prevent re-litigation of the dispute.
Keywords

 
 
Bibliography
A) Books and Articles
 
 
Abramson, Hal, New Singapore Convention on Cross-Border Mediated Settlements, In Mediation in International Commercial and Investment Disputes, edited by Catharine Titi and Katia Fach Gómez. London: Oxford University Press, 2019.
Abramson, Hal. "The New Singapore Mediation Convention: The Process and Key Choices". Cardozo Journal of Conflict Resolution 20, No. 4 (2019): 1037-1062.
Alexander, Nadja and Shou Yu Chong. The Singapore Convention on Mediation: A Commentary. Amsterdam: Kluwer Law International, 2020.
Alexander, Nadja. "Ten Trends in International Mediation". Singapore Academy of Law Journal, 31 (2019): 405-447.
Born, Gary. International Commercial Arbitration, New York: Kluwer Law International, 2014.
Boulet, Jean-Christophe. "The Singapore Convention and the Metamorphosis of Contractual Litigation", Cardozo Journal of Conflict Resolution 20, No. 4 (2019): 1209-1234.
Chong, Shou Yu and Felix Steffek. "Enforcement of International Settlement Agreements Resulting From Mediation Under The Singapore Convention Private International Law Issues In Perspective", Singapore Academy of Law Journal, No. 31 (2019): 448-486.
Chua, Eunice. "The Singapore Convention on Mediation – A Brighter Future for Asian Dispute Resolution", Asian Journal of International Law 9, No.2 (2019): 195-205.
Habibi Majandeh, Mohammad. Comparative International Commercial Arbitration. Tehran: Golverdi Publication, 2013. [In Persian]
Hemmati, Ahmad. "Judicial Procedure in Recognition and Enforcement of International Arbitral Awards in Iran", MA Dissertation in International Trade Law, Shahid Beheshti University, 2010. [In Persian]
Iranshahi, Ali Reza. "Transnational Effects of Procedure of Challenging an Arbitration Award", The Journal of Comparative Law Semi-annual 0, No. 23 (Winter 2013): 25-40. [In Persian]
Joneidi, La'ya and Nastaran Ghiyasvand Qazvini. "Arbitrability in the Legal System of Iran With Emphasis on Judicial Process", The Journal of Comparative Law Semi-annual 4, No. 2 (Fall and Winter 2018): 25-48. [In Persian]
Joneidi, La'ya, Enforcement of Foreign Arbitral Awards. Tehran: The Shahre Danesh Institute of Law Research & study, 2017. [In Persian]
Katouzian, Naser. Res Judicata in Civil lawsuits 5. Tehran: Dadgostar Publication, 1998. [In Persian]
Lo, Chang-fa and Winnie Jo-Mei M. "Draft Convention on Cross-Border Enforcement of International Mediated Settlement Agreements", Contemporary Asia Arbitration Journal 7, No. 1 (2014): 387-401.
Lo, Chang-fa. "Desirability of a New International Legal Framework for Cross-Border Enforcement of Certain Mediated Settlement Agreements", Contemporary Asia Arbitration Journal 7, No. 1 (2014): 120-138.
Mccormick, Khory; Sharon S M Ong. "Through the Looking Glass: An Insiders Perspective into the Making of the Singapore Convention on Mediation", Singapore Academy of Law Journal 31 (2019): 520-546.
McFadden, Danny. The Growing Importance of Regional Mediation Centres in Asia, In Mediation in International Commercial and Investment Disputes, edited by Catharine Titi and Katia Fach Gómez. London: Oxford University Press, 2019.
Morris-Sharma, Natalie, "Constructing the Convention on Mediation the Chairperson’s Perspective", Singapore Academy of Law Journal 31 (2019): 487-519.
Moslehi, Ali Hossein and Mohsen Sadeghi. "A Look at Alternative Dispute Resolution (ADR)", The Journal of Comparative Law Semi-annual 0, No. 7 (Fall and Winter 2005): 123-158. [In Persian]
Nigmatullina, Dilyara. Combining Mediation and Arbitration in International Commercial Dispute Resolution. New York: Routledge, 2019.
Redfern Alan and Martin Hunter. The Law and Practice of International Commercial Arbitration. London: Oxford University Press, 2009.
Schnabel, Timothy. "Recognition by Any Other Name: Article 3 of the Singapore Convention on Mediation", Cardozo Journal of Conflict Resolution 20, No. 4 (2019): 1181-1196.
Schnabel, Timothy. "The Singapore Convention On Mediation: Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements", Pepperdine Dispute Resolution Law Journal 19 (2019): 1-60.
Serbenco, Eduward "Bargaining in the Shadow of Arbitration: When Mediation Settlements Become Enforceable Arbitral Awards," Romanian Journal of International Law 14 (2012): 68-105.
Shams, Abdollah. Civil Procedure (Advanced Course) 2, 42th Edition. Tehran: Derak Publication, 2020. [In Persian]
Sussman, Edna. “The Final Step: Issues in Enforcing the Mediation Settlement Agreement”, Contemporary Issues in International Arbitration and Mediation: The Fordham Papers, (2009): 1-24.
Vandekerckhove, Karen. Mediation of Cross-Border Commercial Disputes in the European Union, In Mediation in International Commercial and Investment Disputes, edited by Catharine Titi and Katia Fach Gómez. London: Oxford University Press, 2019.
B) Websites
Alexander, Nadja and Shou Yu Chong. "Singapore Convention Series: Why is There No ‘Seat’ of Mediation?", Research Collection School of Law (2019), Available at: https://ink.library.smu.edu.sg/sol_research/2893/, Last Accessed at: 2021.02.10.
Alexander, Nadja and Shou Yu Chong. "The New UN Convention on Mediation (Aka the ‘Singapore Convention’) Why It’s Important for Hong Kong", Research Collection School of Law, Hong Kong Lawyer (2019), Available at: https://ink.library.smu.edu.sg/sol_research/2938, Last Accessed at: 2021.02.10.
Chua, Eunice, "A Contribution to the Conversation on Mixing the Modes of Mediation and Arbitration: Of Definitional Consistency and Process Structure", Transnational Dispute Management, Research Collection School of Law (2018), Available at: https://ink.library.smu.edu.sg/sol_research/2771, Last Accessed at: 2021.02.10.
Freehills, Herbert Smith "PwC and the International Mediation Institute", Global Pound Conference Series: Global Data Trends and Regional Difference, (2018), Available at: https://www.globalpound.org, Last Accessed at: 2021.02.10.
Kingsley, Patrick R. "The Singapore Convention on Mediation: Good News for Businesses" (2019), Available at: https://www.law.com/thelegalintelligencer/2019/01/09/the-singapore-convention-on-mediation-good-news-for-businesses, Last Accessed at: 2021.02.10.
Quek Anderson, Dorcas. "Supporting Party Autonomy in the Enforcement of Cross-Border Mediated Settlement Agreements: A Brave New World or Unchartered Territory?", Research Collection School Of Law Privatizing dispute resolution: Trends and limits 41 (2019), Available at: https://ink.library.smu.edu.sg/sol_research/2909, Last Accessed at: 2021.02.10.
UNCITRAL "Audio Recordings: Working Group HI (Arbitration and Conciliation)", 62nd session, (2015), Available at: https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/dfe74c4l-404d-4cd9-ad3e- 8ab8834a3dcc, Last Accessed at 2020/11/01.
UNCITRAL. "Audio Recordings: Working Group HI (Arbitration and Conciliation)", 63rd Session, Sept. 10, (2015), Available at: https://icms.unov.org/CarbonWeb/public/uncitral/speakerslog/dfe74c4l-404d-4cd9-ad3e-8ab8834a3dcc, Last Accessed at 2020/11/01.
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