Cross-Border Mediation Masterclass

I had such a great time facilitating the Cross-Border Mediation Masterclass organised by The Incorporated Trustees of Attorney-Mediators Association on Friday, August 30, 2019.  Many dignitaries from the legal profession in attendance including; Mr. Valentino Buoro (Founder, ATMA), Mrs. Adeyinka Aroyewun (LMDC Director), Mr. Alfred Okunnu(Chairman, ATMA), Director, OYO MDCH, Miss Tosin Lewis (Executive Secretary, LCA), Fola Alade (Executive Director, ATMA) and many others.

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Important subjects related to Cross-Border Mediation were discussed. Some of them include Globalization and its challenges, Singapore International Mediation centre (SIMC), Focus on Commercial/Business Mediation, the Singapore Convention and its connection with Cross-Border Mediation, and the importance of Co-Mediation and MSA’s in Cross-Border Mediation. Below are some highlighted points of these subjects from my presentation as well as some pictures from the Masterclass.

Globalization has given rise to an increasing number of cross-border commercial relationships. Disputes may inevitably rise from the transactions and/or agreements resulting from the relationships.  Resolving them has posed challenges:

CHALLENGES:

Litigation:

  • Liable to in-country bias against the “foreigner”.
  • Government Influence & Control
  • Privacy not Assured or Properly controlled
  • Restrained Extra-territorial Reach

Arbitration:

  • Choice of law (contentious)
  • Venue – London, Paris, New York
    • Greater costs,
    • time,
    • inconvenience

 

Common Challenge(s):

  • Enforceability due to parties being domiciled or incorporated in different jurisdictions.
  • Differing Legal regimes
  • Different culture
  • MSA’s are generally not internationally binding, and the sole remedy was fresh proceedings for breach of contract, leading to more time and more costs.

Singapore Int. Mediation Centre (SIMC)

  • Early Attempt to relieve Challenge of Enforceability
  • Arb – Med – Arb
    • Start Arbitration
    • Step down
    • Mediate
    • Settle
    • Enroll Agreement as Award under the New York Convention

FOCUS ON COMMERCIAL/BUSINESS MEDIATION – IDR:

General Common Principles of the Business World:

  • Creditor wants cash as soon as possible
  • Debtor wants discount, and wants to avoid judicial proceedings
  • Project Needs
    • Completion – Corporate Commercial, Political, or National Developmental Expediencies
  • Parties may be Governmental, raising Issues of
    • Sovereignty and
    • International Relations
  • Fear of competition
  • Reputation assurance/protection
  • Need for retaliation
  • Desire to develop, continue future business

Enter the Singapore Convention

(Mediation Equivalent of the New York Convention)

Note:  Both are United Nations Conventions, named only for the venue of signing.

 

ESSENTIALS:

  • (UN adopted the Singapore Convention last December and
  • Signed it at a ceremony in Singapore in August 7, 2019, this year!
  • Singapore is fast becoming the hub for Cross-Border Mediations.
    • Being pro-active
    • Open and flexible with respects to innovations, and
    • Current domestic and international market dynamics

HEADS UP:

  • Changes are necessary in Nigeria to conform to the Singapore Convention.
  • When ratified, the parties do not need to specify applicability.

SCOPE:

  • Convention applies to International MSA’s with the following exceptions:
    • Personal Disputes
    • Family Disputes
    • Household Disputes (succession and inheritance)

QUERY:

Could transactions, engaged in by one of the parties for personal, family or household purposes, still be commercial for either or both, or all, parties?

  • is there an objective standard, or is it a matter of evidence and fact – subjective?

Qualifying MSA – (Article 4):

  • Signed by parties
  • Signed by mediator
  • Mediator’s affidavit stating that mediation took place.
    • Evidence of mediator must be limited only to the extent of confirming that the signature on the document is his, and
    • he signed it in respect of the parties’ settlement and not otherwise.
    • He should also then be able to attest to the document as is, and,
    • not to anything extraneous or supporting.
  • Attestation by the Mediation Institute (Notary Public?)

Grounds for Refusal – (Article 5):

  • Incapacity of a party
  • Null and void under applicable law to which parties subjected
  • Not binding, or final, according to its terms
  • Subsequent modifications

Relevant Factors in above:

  • Consideration Past
  • Capacity
  • Force Majeure
  • Non est factum
  • Granting Relief would be contrary to the terms of the settlement agreement
  • Mediator’s impartiality or independence, especially when not disclosed, and disclosure would have made party/parties not to enter the MSA.
  • Public Policy
  • Subject matter of dispute not capable of settlement by medication under the law of that party.
    • (Note: Underscores need to liaise with counterparts in relevant jurisdictions, because No man is an island.’)

 

EXIT POINTS – TAKEAWAYS:

  • Enforcing a non-standard or unusual mediation outcome may be problematic.
  • Here, lawyers are IT.
  • There must be thorough mastery of:
    • Domestic / local law;
    • Private International Law (Conflict of laws);
    • Public International Law

 

  • Essentials:
    • Good alliances
    • Amenability to collaborations & affiliations
    • Training
    • Study
    • Even experienced mediators need training

 

  • Other Needs:
    • Need to modify LMDC process, ADR track, etc.
    • Development of High Standard private mediation facilities
    • Perhaps desirable/advantageous, at least for now, to avoid the judicial system altogether
    • LMDC and co. need to enhance the quality of MSA’s, and ameliorate facilities, especially those not going through the judicial process.

ADDITIONAL STUDY RESOURCES:

  • UN Model Law on International Commercial Conciliation
  • Hague Choice of Court Convention
  • New York Convention

Here are pictures from last Friday’s ATMA masterclass on cross-border mediation.

 

Thank you for reading. What are your experiences, contributions, views, and thoughts on Cross-Border Mediation?  Please share these with us, or let’s chat about same, in the comment section below.

Mediator Yemi

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