International commercial mediation and enforceability

Mediation, one of the alternative dispute resolutions, is not as commonly used as court jurisdiction and arbitration in the resolution of international commercial disputes due to lack of enforceability of the agreement document. The enforceability of decisions of the court jurisdiction and arbitral awards is ensured by domestic laws and international agreements. The subject of this thesis is to provide a framework for enforcement of mediation settlement agreements that focus on international commercial disputes. The first chapter of this thesis begins a general information about alternative dispute resolutions. It continuous with its definitions, historical development as well as separation from other alternative dispute resolutions. The chapter ends with discussions of the place of mediation in the different legal system, related regulations, including HUAK, the mediation regulation in Turkish Law. The second chapter examines the agreement document that is prepared at the end of the mediation process for resolved international commercial disputes. The agreement document's preparation, content and scope are discussed in terms of its enforceability and its ability to conclusively prove the dispute is resolved. The chapter continues with a discussion on improving the international character of the document especially in terms of necessary features to be included for its effectiveness in Turkish Law and international agreements. The discussion has been expanded to include the enforceability of the agreement document in the case of the out-of-scope international contracts. It is argued that one of these ways is the conversion of the agreement document into a court decision. In such a case ensuring cross-border enforcement is one option. For example, in case of Turkey, the agreement documents' recognition in accordance with MÖHUK articles of Turkey will be necessary. Another option is the conversion of the agreement document into an arbitral award. The New York Convention states that in the countries party to this convention recognition and enforceability of the document can be obtained. The second chapter ends with detailed information about the need of making international contract about enforceability of the agreement document. The last chapter gives information about the United Nations Convention to International Settlement Agreements Resulting from Mediation (Singapore Convention). A further investigation is carried out regarding the corporal and procedural applicability of the Singapore Convention. A special attention is given to a detailed examination of reasons for the refusals that rendered them inapplicable. Singapore Convention resolves the problem for the contracting states. However, the enforceability of the international agreement document in non-contracting states still poses a problem. Time will tell if the Singapore Convention will achieve a similar success to the New York Convention.