Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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I. INTRODUCTION

One who encounters George Bermann’s Hague Academy Lectures,  or any of his many other writings, soon learns that George has a deep and rigorous understanding of conflicts of law issues arising from transnational disputes.  To have worked with him for more than a decade on the Restatement  has done much to sustain my own interest in the field. That enterprise after all presented many governing law puzzles and in attempting to solve them there was none better with whom to collaborate than George. 

The challenge in selecting a topic to write about in honoring George is that he has gotten there ahead of me in most arbitration-related inquiries. So, enter the United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention” or the “Convention”).  As its title suggests, it is about international commercial mediation, and as will be developed below, it is an instrument that raises governing law questions similar to some of those we faced in drafting the Restatement.  

After presenting a brief introduction to the Singapore Convention in general, this essay will concentrate upon the Convention’s fifth article and the “refusal grounds” found there. Particular attention will be paid to Article 5(1)(b)(i), which permits a court to refuse to give effect to  a mediated settlement agreement that is “null and void” or “inoperative” or “incapable of being performed.”