The Singapore Convention Comes to the DIFC? A Comparative Analysis of the Proposed Mediation Framework

The DIFC recently completed its public consultation on its amendments to the Arbitration Law (DIFC Law No. 1 of 2008). The most significant change is the introduction of a new Mediation Framework in Part 5 of the proposed law, in line with the establishment of the Mediation Service Centre by the DIFC Courts last year. The new Mediation Framework borrows a lot from the United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention”). This comes at a striking time as UAE has now acceded to the Singapore Convention. The proposed Framework mirrors the Convention’s architecture in several respects, but departs from it in others, most evidently in Articles 57(9) and (10), which lets a Mediated settlement agreement be enforced as a DIFC court judgment irrespective of where the mediation took place. This piece maps both the overlap and the divergence and considers what those divergences may mean for parties in practice.

Scope

The DIFC framework has slightly widened the scope of covered mediations beyond just commercial disputes to any dispute that may arise out of a contractual or legal relationship. Its application applies specifically to DIFC while also leaving the door open at the enforcement stage to enforce settlement agreements regardless of whether the mediation was conducted in DIFC or internationally.

Article 1(1) of the Singapore Convention confines the scope of the instrument to mediations resolving a “commercial dispute”. In Schedule 1 of the proposed law, the definition of ‘mediation’ describes a dispute arising out of “a contractual or other legal relationship”, which is a phrase drawn from the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018) (“Mediation Model Law”). It also echoes the DIFC Arbitration Law’s definition of an arbitration agreement in Article 12(1).

Articles 7(4), 7(5) and 45 of the proposed law further set the scope of the Framework. The Singapore Convention applies where at the time of the conclusion of the settlement agreement, the two parties to the dispute have places of business in different states, or the state in which the parties have their business is different from the state of performance or state with which the agreement is most closely connected. In contrast, the DIFC Mediation Framework applies irrespective of the basis on which mediation is carried out, whether by a pre-dispute or post-dispute agreement, a legal obligation, or a court, tribunal or governmental direction. Articles 45 to 56 dictating the process of mediation apply where the parties agree, the mediation is conducted in DIFC, or the underlying dispute falls within the DIFC court’s jurisdiction. Article 57 regarding enforcement of the settlement agreement applies regardless of where the mediation was conducted.

The Framework does not apply to mediations to resolve a dispute arising from transactions engaged in by one of the parties for personal, family or household purposes or relating to family, inheritance or employment law. This has been directly imported from the Convention’s scope.

Enforcement of Settlement Agreements

If the parties conclude an agreement settling the dispute, that settlement agreement is binding and enforceable. For a party to rely on it, it must supply evidence that the agreement was signed by the parties and that it was a result of mediation (through the mediator’s signature or attestation by the institute that administered the mediation).

The DIFC court can refuse to grant relief for reasons mentioned in Articles 57(6) and (7), which include incapacity of a party, the agreement being null and void under the law to which the parties have subjected it, the agreement is not binding, the agreement has been modified, the obligations have been performed or are not clear, granting relief would be against the term of the agreement, breach of independence and impartiality requirement, granting relief would be contrary to the public policy of UAE or the subject matter is not capable of settlement under DIFC law. This closely mirrors the grounds for refusal under the Singapore Convention.

Perhaps the most significant difference between the Convention and the DIFC Mediation Framework lies in Articles 57(9) and (10). Under these provisions, the DIFC court has jurisdiction to recognise and enforce a settlement agreement (irrespective of wherever the mediation was conducted) as if the terms of the agreement were a judgment of the DIFC court. Therefore, the settlement agreement would constitute an Enforcement Writ within the meaning of Articles 30(B)(4) and (5) of the Dubai Law No. 2 of 2025 Concerning Dubai International Financial Centre Courts (the “Courts Law”). The Courts Law, effected last year, provides that Enforcement Writs shall include signed settlement agreements that are approved by the DIFC Courts Mediation Centre and settlement agreements ratified by the DIFC courts during t

he proceedings. On the other hand, the Singapore Convention only focuses on enforcement of the agreement as a contract in accordance with the rules of procedure of the applicable jurisdiction.

The Enforcement Writ approach has been used in Singapore’s Mediation Act of 2017 - Article 12 allows for a settlement agreement to be recorded as an order of the court. The scope of the Act, however, is limited to where the mediation was conducted in Singapore or where the agreement provides that the Act or the law of Singapore is to apply to the mediation. In contrast, the enforcement procedure in DIFC applies regardless of where the mediation was conducted.

For the parties considering mediation, the DIFC approach can help save costs and time. Had the Framework treated a settlement agreement like a contract, a party relying on the contract would have to submit an application for an ordinary monetary claim under Part 7 of the Rules of DIFC Courts 2014 (“RDC”). Such claims are charged on an ad valorem scale, at five percent of the value of the claim up to USD 500,000 and further tapering after. As an example, for a USD 5 Million claim, a party would have to pay USD 50,000 to the courts as fee. The winning party would then still need to enforce the resulting judgment by commencing an enforcement proceeding under Part 45 of the RDC, which costs USD 100, and paying the Part 48 fee for enforcing a DIFC court’s judgment, which costs USD 300.

Articles 57(9) and (10) allow the party to save on the cost of submitting a monetary claim. Since a recognised settlement agreement is already an Enforcement Writ with the status of a DIFC court judgment, the party would only have to pay the Parts 45 and 48 fees, USD 400 in total. Additionally, of course, the party also saves time by not having to spend time on the Part 7 claim procedure.

It is worth flagging that the costs calculation is based on the 2023 Schedule of Fees, which predates Part 5 of the proposed arbitration law. These costs could be updated once the law comes into force.

Independence and Impartiality of the Mediator

The Singapore Convention only addresses the topic of independence and impartiality once at the stage of enforcement wherein Article 5(1)(f) gives the court the power to refuse to enforce the settlement agreement where the mediator failed to disclose circumstances raising justifiable doubts as to their impartiality or independence. That failure should have caused material impact or undue influence on a party who would not have otherwise entered into the settlement agreement.

The DIFC Framework instead also addresses the topic at the point of appointment. Articles 47(4) and (5) import provisions from the Mediation Model Law, requiring the appointing institution to have due regard to independence and impartiality, and imposing upon the mediator a continuing duty of disclosure. The Framework also requires the appointing authority to consider the nationality of the mediator, which should be different to the nationality of the parties. Articles 57(6)(e) and (f), like the Singapore Convention, allow the DIFC court to decline enforcement for a serious breach of mediator standards or an undisclosed conflict causing material impact.

While the Framework does not establish a roster of mediators, the DIFC Mediation Service Centre has its own panel of mediators. The requirements to register as a mediator include that the applicant must be a registered with a professional mediation institution and have conducted at least five mediations as a lead or co-mediator.

Arb-Med-Arb Omitted

One question that arose during the drafting stage was whether the Framework should include a provision for an arb-med-arb procedure. Such procedures can be found in Section 17 of the Singapore International Arbitration Act 1994 and Article 33 of the Hong Kong Arbitration Ordinance, wherein an arbitration is paused so that mediation can be carried out, with the same arbitrator acting as mediator. The DIFC Authority (“DIFCA”) declined to legislate for it for two reasons. Firstly, doing so would have been overly prescriptive and it is better left to party agreement and institutional rules. In this regard, the DIFCA adopted the same approach as Australia, England and Wales, and the Abu Dhabi Global Market (ADGM). Secondly, their underlying concern was regarding bias. The DIFCA noted that on one hand it would be hard for an arbitrator to ignore information gathered as a mediator, which could lead to challenges of a resulting award. On the other hand, it would be harder for parties to be candid in the mediation due to concerns over protecting their positions during arbitration.   

Therefore, Article 55 puts a default bar on the mediator acting as an arbitrator, while leaving the door open for parties to agree otherwise, such as on arb-med-arb procedures offered through institutions like the SIAC-SIMC.

Conclusion

The UAE’s recent accession to the Singapore Convention now opens two enforcement routes for a mediated settlement agreement, i.e., through DIFC or national courts. For drafters, while this may seem like a forked road, the DIFC framework, if so enacted, has a broad scope, whereby a settlement agreement can be enacted as a DIFC Court judgment regardless of where it was conducted. While it is yet to be seen how the national UAE law will approach this, any settlement that qualifies for enforcement under the Convention should, in principle, already qualify for enforcement under the DIFC Framework too, without any special drafting required to secure that route.

The proposed Mediation Framework cannot be just understood as the DIFC applying the Singapore Convention domestically. It is an interesting amalgamation of the Mediation Model Law, the Singapore Convention and a modern approach carried in the Enforcement Writ mechanism. This ambition creates incidental speed and cost benefits for the Parties.