Legal Assessment of the United Nations Convention on International Settlement Agreements Resulting from Mediation Regarding Civil Procedure and Enforcement-Bankruptcy Law
Mustafa Okan YağcıThe signing ceremony of the United Nations Convention on International Settlement Agreements Resulting from Mediation was held in Singapore on 07 August 2019. As per the Law No. 7282 regarding the Approval of the United Nations Convention on International Settlement Agreements Resulting from Mediation dated 25 February 2021, the Turkish Parliament deemed approval of the Convention suitable, and Presidential Decree No. 3866 dated 21 April 2021 approved the Convention. The Singapore Convention on Mediation, which [would] became part of Turkish legislation carries some questions in terms of domestic law. This study will assess the Convention in light of Turkish Civil Procedure and Enforcement-Bankruptcy Law. In this context, the study will first provide (1) some information with respect to regulations in the Convention such as (a) the scope of the Convention’s application, (b) the enforcement of and reliance on settlement agreements, and (c) groundsforrefusing to grantrelief, and then discussesthe issues of (2) whether or not the Convention applies to settlement agreements resulting from mediation conducted according to Turkish law and (3) how settlement agreements resulting from mediation conducted in a foreign contracting state should be evaluated under Turkish Civil Procedure and Enforcement-Bankruptcy Law regarding (a) the legal nature of settlement agreements and their consequences, (b) the ability to be subject to mediation, and (c) the effect of settlement agreements as a cause of action.
Arabuluculuk Sonucunda Yapılan Milletlerarası Sulh Anlaşmaları Hakkında Birleşmiş Milletler Konvansiyonu’nun Medeni Usul veIcra-Iflas Hukuku Açısından Değerlendirilmesi
Mustafa Okan YağcıArabuluculuk Sonucunda Yapılan Milletlerarası Sulh Anlaşmaları Hakkında Birleşmiş Milletler Konvansiyonu (“Konvansiyon”) 07.08.2019 tarihinde Singapur’da imzaya açılmıştır. 25.02.2021 tarih ve 7282 sayılı Kanunla Türkiye’nin de ilk imzalayan ülkeler arasında bulunduğu Konvansiyon’un onaylanması uygun bulunmuş; 21.04.2021 tarih ve 3866 sayılı Cumhurbaşkanı Kararı ile de onaylanmasına karar verilmiştir. Türk mevzuatının bir parçası haline gelecek olan/gelen Konvansiyon, iç hukuk bakımından cevaplanması gereken çeşitli soruları da beraberinde getirmektedir. Bu çalışmada Konvansiyon, Türk Medeni Usul ve İcra-İflas Hukuku açısından bir değerlendirmeye tabi tutulacaktır. Bu kapsamda, ilk olarak, (1) Konvansiyon’da yer alan düzenlemeler ((a) Konvansiyon’un uygulama alanı, (b) sulh anlaşmalarını yerine getirme yükümlülüğü ve hukuki yollara başvuru ile (c) hukuki yollara başvurunun reddi sebepleri) hakkında bilgi verilecek; ardından, (2) Türk hukukuna göre yürütülen arabuluculuk faaliyetleri neticesinde düzenlenen sulh anlaşmalarının Konvansiyon’un uygulama alanına girip girmediği ve (3) Konvansiyon’a taraf bir devlette yürütülen arabuluculuk faaliyetleri sonunda düzenlenen sulh anlaşmalarının Türk Medeni Usul ve İcra-İflas Hukuku bağlamında nasıl değerlendirilmesi gerektiği ((a) sulh anlaşmasının hukuki niteliği ve sonuçları, (b) arabuluculuğa elverişlilik ve (c) dava şartı olarak etkisi) meseleleri tartışılacaktır.
The signing ceremony of the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation or herein as the Convention, was held in Singapore on 07 August 2019. As of 05 February 2022, the Convention has been signed by 55 countries, including Turkey as one of the first signatory countries. As per Law No. 7282 dated 25 February 2021 (OJ 03.11.2021/31420) regarding the Approval of the United Nations Convention on International Settlement Agreements Resulting from Mediation, the Turkish Parliament deemed approval of the Convention suitable, and Presidential Decree No. 3866 dated 21 April 2021 (OJ 04.22.2021/31462) approved the Convention. According to the information on the official website of the Singapore Convention on Mediation, Turkey ratified the Convention on 11 October 2021 and will have been entered into force on 11 April 2022 (see also Presidential Decree No. 5235 dated 24 February 2022 [OJ, 02.25.2022/31761]).
In a nutshell, the Singapore Convention on Mediation applies to an agreement resulting from mediation and concluded in writing by parties to resolve a commercial dispute which, at the time of its conclusion, is international (Convention Art. 1/1). Settlement agreements relating to consumer, family, inheritance or employment law; settlement agreements that have been approved by a court or concluded in the course of proceedings before a court and that are enforceable as a judgment in the state of that court; or settlement agreements that have been recorded and are enforceable as an arbitral award are excluded from the scope of Convention’s application (Convention Art. 1/2-3).
The Singapore Convention on Mediation aims to effectively enforce settlement agreements resulting from mediation that has been conducted for an international commercial dispute in contracting states. Thus, this Convention can be stated as having a complementary nature to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Convention of 30 June 2005 on Choice of Court Agreements.
Meanwhile, the Singapore Convention on Mediation, which [would] became a part of Turkish legislation, carries some questions in terms of domestic law. This study aims to assess the Convention in light of the Turkish Civil Procedure and Enforcement-Bankruptcy Law.
In this context, the study will first provide (1) some information with respect to regulations in the Convention such as (a) the scope of the Convention’s application, (b) the enforcement of and reliance on settlement agreements, and (c) grounds for refusing to grant relief, and then discusses the issues of (2) whether or not the Convention applies to settlement agreements resulting from mediation conducted according to Turkish law and (3) how settlement agreements resulting from mediation conducted in a foreign contracting state should be evaluated under Turkish Civil Procedure and Enforcement-Bankruptcy Law regarding (a) the legal nature of settlement agreements and their consequences, (b) the ability to be subject to mediation, and (c) the effect of settlement agreements as a cause of action.
As a result of the study, the following outcomes have been reached:
(i) The following statement exists on the Convention’s official website: “The execution in Turkey of a settlement agreement reached as a result of a mediation that is not made within the scope of the provisions of the Mediation Law may be subject to the provisions of the Singapore Convention.” As a matter of fact, even if settlement agreements resulting from a mediation procedure conducted according to Law No. 6325 on Mediation in Civil Disputes are subject to the issuance of a commentary regarding its enforceability or have the nature of being enforced like court judgments, this circumstance does not cause these agreements to fall outside the scope of the Singapore Convention on Mediation’s application. Therefore, in accordance with the Turkish legal policy aimed at the common and effective application of mediation, necessary actions should be taken to correct this misunderstanding.
(ii) As per the consideration that the Singapore Convention on Mediation shall have entered into force for Turkey as of 11 April 2022, making the necessary legal regulations will be useful regarding how the enforcement procedures should be for settlement agreements that are included within the scope of the Convention and which competent authority will be responsible for this matter.
(iii) When considering the qualification of a settlement agreement that has been included within the scope of the Convention, the settlement agreement must be defined as an out-of-court settlement agreement subject to the ordinary written form of agreement under Turkish law; thus, no specific legal consequences exist worth stating, at least not in terms of current regulations regarding Turkish civil procedure and enforcement-bankruptcy law under the principle of lex fori.
(iv) If a settlement agreement that is included within the scope of the Convention resolves a dispute regarding the rights in rem with regard to immovable property or contains a provision regarding this matter, the competent authority must refuse to grant relief on the ground that granting relief is contrary to Turkish public policy (Convention Art. 5/2/a); and not on the ground that the subject matter of the dispute is incapable of settlement by mediation under Turkish law (Convention Art. 5/2/b).
(v) If a settlement agreement resulting from mediation that is conducted in a foreign contracting state contains a provision stating the particular disputes that are not able to be settled by the parties, this circumstance shall not fulfill the procedural requirement in Turkish law regarding compulsory application to the mediation procedure (Turkish Commercial Code Art. 5/A).