Saturday, 14 September – 11:00 am Room V 005, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich
International commercial mediation has become an attractive dispute resolution mechanism for business people. Moreover, an increasing number of states have adopted, or will adopt, the rules to promote mediation and conciliation in the course of court proceedings. However, the possibility of recognition and enforcement of mediation settlement agreements approved by a court or concluded in the course of court proceedings has not been researched well. To analyse this possibility, these two instruments are relevant: the Hague Convention on Choice of Court Agreements, and the draft Hague Convention on Recognition and Enforcement of Foreign Judgments. It should be noted that the draft Convention on International Settlement Agreements Resulting from Mediation prepared by the UNCITRAL Working Group II, intentionally excluded mediation settlement agreements made in the course of the court proceedings from its scope. Therefore, the Hague Conventions will be examined here.
In this paper, recognition and enforcement of mediation settlement agreements concluded in three selected jurisdictions will be examined: England and Wales, France, and Japan. In England and Wales, historically, once the parties have commenced the court proceedings and reached a settlement, the parties request a court to make a consent order which is considered as a judgment under the Hague Conventions. Mediation settlement agreements concluded after the initiation of the court proceedings may be formed as a consent order. On the other hand, French and Japanese courts may approve a settlement concluded between the parties in the course of the proceedings as a judicial settlement (transaction judiciaire). Both Hague Conventions have a specific provision for enforcement of judicial settlements. Furthermore, Japan has civil conciliation before the court which is conducted by conciliation committee consisting of a judge and two conciliation commissioners. A reached conciliation settlement agreement can be converted into a record of the court and is given the same status as a final judgment.
Lastly, this paper will examine whether different effects arising from consent orders and judicial settlements under the Hague Conventions will be reasonable. Under the Conventions, a consent order can be recognised and enforced while a judicial settlement can only be enforced. The Conventions intended to exclude res judiciata effects on a judicial settlement but to admit res judicata effects on a consent order.