MEMORANDUM ON THE LAW APPROVING THE UNITED NATIONS CONVENTION IN RESPECT OF THE INTERNATIONAL AMICABLE SETTLEMENTS AS A RESULT OF MEDIATION

 “The United Nations Convention In Respect Of The International Amicable Settlements As Result Of Mediation” and as known as “Singapore Convention” adopted by UN General Assembly Resolution 73/198 on the date of December 20, 2018 and signed by a total of 53 countries since August 7, 2019 was put in effect by the Law numbered 7282 enacted by Grand National Assembly of Turkey with respect of its approval and published in the Official Gazette in March 11, 2021.

The Singapore Convention is a Convention that has been implemented in order to make the Amicable Agreements made as a result of international mediation gain international enforceability.

As it is known, the arbitral awards given pursuant to arbitration procedures are enforced within the framework of the laws of the country of arbitration and as for the countries that the arbitration procedure has not taken place, the said arbitral awards have enforceable nature under New York Convention dated 1958. As for the case of mediation, there is not a code or international agreement that gives international enforcement power to amicable settlement agreements made within the scope of mediation as in arbitration. In this context, the Singapore Convention was enacted by the UN and has been enabled for signatures of states in order to bring the international validity of the arbitration to mediation.

With Singapore Convention and by fulfilling certain conditions, Amicable Settlement Agreements in consequence of Mediation are to be turned into from being only a substantive law agreements to being enforceable as well in the states that are parties to Singapore Convention. This case is to pave the way for improvement of mediation in international commercial disputes.

Amicable settlement agreements shall have certain qualifications in order to ensure the enforceability.

These qualifications are as follows:

• Signed as a result of Mediation
• Having the characteristic of internationality
• Having the characteristic of being commercial
• Not being a subject excluded explicitly

Signed as a result of Mediation: AS per the Convention, there is not an obligation to mediate through an institution. It is stated that that the parties engage in amicable settlement within their own will is the main factor.

Having the characteristic of internationality: Implementation of the Convention is limited to the amicable settlement agreements that have the characteristic of internationality. In this scope, the internationality condition is to be deemed fulfilled for the cases that the country where the workplaces of the parties to the amicable settlement agreement is to be made is different from the country where the substantial part of the debts will be paid according to the amicable settlement agreement or the location of the said workplaces are different from the country which the subject of the amiacable settlement agreement has the closest relationship. And it is stated that the condition stated herein shall be in existence in the moment of making the amicable settlement agreement.

Commercial Disputes:  The convention has been drafted in a way that it can only be applied to mediation activities regarding commercial disputes, not all kinds of mediation issues and It is stated that it only covers mediation issues in commercial disputes. In this context, when the definition of “commerce” is examined, it is seen that there is no definition on this subject in the Convention, therefore the said definition is to be ascertained pursuant to the law in the countries where the enforceability of amicable settlement agreement is demanded.

Excluded Subjects: Clearly, amicable settlement agreements concluded to resolve disputes arising from personal, family or household transactions by one of the parties are out of the scope of the Convention.

The United Nations Convention In Respect Of The International Amicable Settlements as a Result Of Mediation that increases the enforceability of Amicable Settlement Agreements that arise within the scope of commercial mediation activities applied as a result of international disputes and bringing Commercial Mediation to the forefront was signed by Turkey on the date of August 7, 2019. After nearly 2 years since it was signed, with the approval law enacted by the Turkish Grand National Assembly on March 11, 2021, it has also entered into force in our domestic law. Thus, it will not be necessary to follow a different procedure for the execution of the Amicable Settlement Agreements made as a result of international commercial mediation, which has the qualifications listed in the text of the convention, in our country. Likewise, the trading companies in Turkey will be able to ensure direct enforceability of Amicable Settlement Agreements in the countries where the Convention is accepted in its domestic law.

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