The Singapore Convention on Mediation Act 2020 (“SCMA”) was passed by Parliament on 4 February 2020, and commenced on 12 September 2020, the same day the Singapore Convention on Mediation entered into force. The Act implements Singapore’s obligations under the Singapore Convention on Mediation.
Alongside this, the Supreme Court of Judicature (Singapore Convention on Mediation) Rules 2020 (the “Rules”) also commenced on 12 September 2020. The Rules are a piece of subsidiary legislation that sets out the procedural framework for applications and matters under the SCMA.
Procedure for Enforcing International Mediated Settlement Agreements
In line with the Singapore Convention, the SCMA allows for international mediated settlement agreements to be recorded by the High Court as a court order for enforcement or invocation. The settlement agreement may also be invoked directly as a defence in existing court proceedings (s. 4 SCMA), through an application to the High Court (or Court of Appeal when being invoked as a defence for proceedings in the Court of Appeal). The requirements for such applications (s. 6 SCMA) generally follow those stipulated in article 4 of the Singapore Convention, and are also supplemented by the requirements set out in the Rules (Rule 6). Applications to the court should be accompanied by the following documents:
- The settlement agreement as signed by parties to the agreement, or a certified copy of the signed agreement (s. 6(1)(a) SCMA). ‘Certified’ documents should fulfil the requirements set out under s. 80(3) of the Supreme Court of Judicature Act (Cap. 322), or any requirements that might have been determined by the court hearing the application (s. 6(5) SCMA);
- Evidence of the settlement agreement resulting from mediation (s. 6(1)(b) SCMA). Provisions relating to electronic communications are also made (s. 6(2) SCMA);
- Any other documents that might be required by the court to verify that the requirements of the Singapore Convention have been complied with (s. 6(3) SCMA);
- A certified translation of the settlement agreement, if it is not in English (s. 6(4) SCMA); and
- An affidavit stating the purpose of application, extent of compliance with the requirements of the SCMA, and name and last known place of abode or business of the applicant and person against whom the settlement agreement is sought to be enforced or invoked (Rule 6(1)).
Other National Mediation Laws
The Mediation Act 2017 (“MA”) was passed by Parliament on 10 January 2017, and commenced on 1 November 2017. This piece of legislation applies to mediation proceedings with some nexus to Singapore (for instance, where the mediation is conducted in Singapore, or the mediation agreement provides that the Act or Singapore law applies to the mediation). It was amended alongside the passing of the SCMA, to clarify that international mediated settlement agreements that fall under the scope of both the SCMA and the MA, may be recorded as an order of court under either Act (though not both). This allows parties to choose the preferable mechanism according to the needs of their case. Whilst the SCMA is only concerned with mediated settlement agreements and the enforcement and invocation of those agreements, the MA also deals with agreements to mediate and contains provisions relating to the mediation process. Key features of the MA include:
- Stay of court proceedings provisions (s. 8 MA).
- Restrictions on disclosure and admissibility of mediation communication (s. 9-11 MA)
- Recording of settlement agreements as an order of court for enforcement. It should be noted that the MA provides additional requirements for recording a settlement agreement, as compared to the SCMA, such as in requiring the consent of all parties to the agreement, an 8 week time frame from when the settlement agreement is made, and mediation that is administered by a designated mediation service provider or conducted by a certified mediator (s. 12 MA). The relevant designated mediation service providers and approved certification scheme were announced in the government Gazette on 31 October 2017, and took effect from 1 November 2017.
The MA was accompanied by a piece of subsidiary legislation, the Mediation Rules 2017, which also came into operation on 1 November 2017. These rules prescribe the information to be contained in a mediated settlement agreement for the purposes of the MA.
Notably, a number of pieces of legislation have also been amended to encourage mediation in Singapore:
- The Civil Law Act (“CLA”) was amended to permit third-party funding in mediation proceedings related to arbitration proceedings and certain proceedings in the Singapore International Commercial Court (s. 5B CLA read with Reg 3 of the Civil Law (Third-Party Funding) Regulations 2017). Further amendments to the Regulations, which extended the categories of proceedings for third-party funding, came into effect on 28 June 2021.
- The Legal Profession Act (“LPA”) was amended to exempt mediators or foreign lawyers representing a party in mediation from legal profession regulations (s. 35B LPA)
Relevant Parliamentary Debates/Documents
- Introduction of Bill: Singapore Convention on Mediation Bill (6 January 2020 Sitting)
- Second Reading: Singapore Convention on Mediation Bill (3 February 2020 Sitting)
- Second Reading: Singapore Convention on Mediation Bill (4 February 2020 Sitting)
- Second Reading Speech by Senior Minister of State for Law, Mr Edwin Tong SC, on Singapore Convention of Mediation Bill
- Written Answer by Minister for Law, Mr K Shanmugam, to Parliamentary Question on Singapore Convention on Mediation and Plans to Promote Singapore as an International Dispute Resolution Hub