China: 《新加坡调解公约》的国际评价和影响

Last Updated: 5 September 2019
Article by Jia Hui
Most Read Contributor in China, September 2019

2019年8月7日,《联合国关于调解所产生的国际和解协议公约》(以下简称"《新加坡调解公约》"或"《公约》")签署仪式在新加坡举行。67个国家和地区的代表团参加了签署仪式,中国商务部部长助理李成钢代表中国政府签署该公约,目前《新加坡调解公约》签署国已达46个。 1联合国秘书长安东尼奥·古特雷斯表示,《新加坡调解公约》强化了商事争议解决方面的国际法治规则,凸显了多边主义价值。 2本文将针对世界主要国家和地区(包括美国、中国、新加坡、印度、欧盟、卡塔尔)对签署《新加坡调解公约》的评价及其《公约》的国际影响进行梳理和总结。

一、美国

从《新加坡调解公约》的提出、起草到最后签署,美国始终表示支持态度并在其中发挥了建设性的作用。2014年,制定调解公约的倡议由美国提出,公约的起草工作被交给了联合国国际贸易法委员会的一个工作组。

时任美国国务院律师的蒂莫西"施纳贝尔(Timothy Schnabel)担任该工作组美国代表团团长。施纳贝尔表示:与仲裁相比,调解是一种速度更快、成本更低的解决争端的方式。在美国和英国等一些司法管辖区,调解已被频繁用于解决商业纠纷。但在其他很多法律文化中,调解并没有得到广泛接受。该公约将通过为认可和执行和解协议提供国际标准,帮助调解得到更广泛的接受。由于调解能够使当事人在取得共识的基础上达成协议,因此有利于保全商业关系。 3纽约哥伦比亚大学法学院国际商业和投资仲裁中心主任乔治"伯曼(George Bermann)表示,《新加坡调解公约》完全有理由像《纽约公约》之于仲裁那样有助于调解,他认为,"该公约是一个强有力的工具,可以在全球扩大其使用范围"。

尽管美国国内总体上对签署《公约》持支持态度,认为该公约有可能从根本上改变跨境商业纠纷的解决模式,但还有一些商事调解的从业者对《公约》的实际效果持怀疑态度。总部位于美国的企业冲突管理公司的F"彼得"菲利普斯(F.PeterPhillips)表示:"制定一项国际公约确保调解协议可执行,并不是企业或律师迫切需要的。"首先,该公约的某些方面似乎与英美等主要司法管辖区的商业调解方式不一致。第二,该公约处理调解结果可执行性的方式与调解过程背道而驰。菲利普斯表示:"调解是各方达成共识的结果,迫使各方去做不是他们原本就同意的事情是行不通的。"第三,《公约》规定,法庭执行和解协议的条件之一是证明协议是调解的结果。然而,实践中这一点很难得到证明。根据《公约》规定,调解人员可以通过签署和解协议或签署另一份证明已实施调解的文件来证明。但调解人员会谨慎地拒绝签署和解协议,这要么是保密义务的一部分,要么是为了免于被传唤作证或免于成为协议中的一方。在一些司法管辖地区,调解人员享有豁免权,不能为他们所调解的协议作证。 4

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