International Enforceability Of Mediated Settlement Agreements Developing The Conceptual Framework

[29] As a general rule, with a few exceptions, our respondents also indicated that negotiated transaction agreements would be enforceable by arbitration if the settlement agreement contained a compromise clause. Overall, it seems fair to conclude the stated objective of the convention to remove or, at the very least, remove barriers to the application of negotiated cross-border transaction agreements, when its un defined objective was to improve the use and acceptance of mediation as a dispute resolution mechanism. As noted above, one of the aforementioned objectives of the agreement was to establish a mechanism for implementing negotiated transaction agreements, which would avoid obstacles to their implementation solely because of their contract status. Has this goal been achieved? [19] See UN Doc A/CN.9/846/Add.3, p. 6 (The Mexican government comments that «Mexico is one of the countries that regulates civil and commercial law separately. Civil law applies within the local jurisdiction, allowing each federal unit to have a civil code and a code of civil procedure. As a result, provisions for the application of civil transaction agreements are established in each federal agency. In a seemingly universal trend, mediation laws have been enacted in all institutions or in most federal institutions in Mexico. Since these entities are legal orders at the state level, transaction agreements are generally not commercial in such cases. It seems relatively clear that, at least in the United States, there is no urgency to reach an agreement to address the obstacles to the implementation of settlement mediation agreements. As in the «issues raised by the convention,» the question remains how the Singapore Agreement, if any, would make the implementation of negotiated transaction agreements simpler or more effective than the application of existing legislation and procedures.

Nevertheless, the authors believe that it would be wrong to ignore the potential benefits of the agreement in respect of commercial transactions and international litigation, since its existence tends to legitimize the concept of mediation and may also contribute to overcoming the reluctance of the parties to resort to mediation to conclude a negotiated transaction contract based on the entitled or the impossibility that the agreement cannot be enforceable, either through impartial procedure or by impartial procedure.

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