Commercial Arbitration in the Era of the Singapore Convention and the Hague Court Conventions

Abstract

Disputes are complex affairs. Parties can attempt to resolve them themselves, either with external help (mediation) or without (negotiation), or they can leave it to a third person to decide (arbitration/litigation).
Traditionally, commercial arbitration was considered to have a quasi-monopoly on cross-border dispute resolution. Whether or not this was accurate in the past, the arrival of the Singapore Convention (2018) concerning mediated settlements and the Hague Choice of Court and Judgments Conventions (2005 and 2019) might change that perception.
Notwithstanding this, the Singapore Convention will have little impact on commercial arbitration. Parties benefit from mediation in appropriate cases, but these two types of dispute resolution, resolution by agreement of the parties or via decision by a third person, remain fundamentally different and not substitutes for one another.
The two Hague Conventions will facilitate the enforcement of judgments and improve the competitiveness of litigation. However, given their scope, only the first might establish a regime that could rival commercial arbitration, although due to the limited number of Contracting States of the Hague Choice of Court Convention, it is unlikely that litigation will compete with commercial arbitration on an equal footing anytime soon.

Full text

37 ASA BULLETIN 4/2019 (DECEMBER) 871
Commercial Arbitration in the Era of the Singapore
Convention and the Hague Court Conventions
JOHANNES LANDBRECHT
ADR – Enforcement – Hague Choice of Court Convention –
Hague Judgments Convention – Mediation – Singapore Convention
1. The Newly Competitive Environment of Commercial
Dispute Resolution
For a long time, commercial arbitration was considered “the best if not
only realistic means of resolving cross-border disputes”,1 the “only game in
town”2 – by parties, practitioners, and policy makers alike. Recently, the
debate seems to have become slightly more nuanced.3 Parties as well as
policy makers explore alternatives, apparently focusing primarily on two
mechanisms: mediation and, lo and behold, state court litigation.
That parties look for the optimal mode of dispute resolution is, of
course, nothing new. Arbitration never had a monopoly on transnational
dispute resolution. Not only have commercial courts been around for
centuries,4 foreign litigants are also frequently party to commercial court
proceedings,5 and state courts readily apply foreign law.6
* Dr iur, Rechtsanwalt & Barrister, GABRIEL Arbitration, Zurich; j.landbrecht@gabriel-
arbitration.ch.
1 STRONG, Realizing Rationality, 73 Wash & Lee L Rev 2016, 1973.
2 Yves FORTIER QC, as quoted by HERRMANN, Does the World Need Additional Uniform
Legislation on Arbitration?, in: Mistelis/Lew (eds), Arbitration Insights, 2007, 223, 229.
3 On empirical research into the use of arbitration clauses, and possible (limited) conclusions
that can be drawn therefrom, see DRAHOZAL, The State of Empirical Research on
International Commercial Arbitration: 10 Years Later, in: Brekoulakis/Lew (eds), The
Evolution and Future of International Arbitration, 2016, 453, 455 f.
4 Cf, eg, for the Austrian experience BYDLINSKI/WITTMANN-TIWALD (eds), Festschrift
Symposium anlässlich des Jubiläums 300 Jahre staatliche Handelsgerichtsbarkeit, 2018.
5 Eg, 70% of the London Commercial Court’s business stems from international cases, cf
The Commercial Court Report 2017–2018, 9, https://www.judiciary.uk/wp-content/
uploads/2019/02/6.5310_Commercial-Courts-Annual-Report_v3.pdf.
6 Having studied and trained in a border region, I myself came into contact with cross-
border disputes in general much earlier than with arbitration in particular.

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Rather, what seems to have raised awareness, in recent years, of state
courts competing with arbitration, were projects by policy makers to establish
specialist courts that are not only dedicated to international cases but also aim
at dealing with them in a more internationalised, possibly “hybrid”,7 manner.
These commercial courts8 are “international” to a varying degree.
The Dubai International Financial Centre (DIFC) Courts, for instance, are
in essence domestic courts, all judges coming from common law
jurisdictions.9 Also meant to emulate arbitration features,10 these are
reminiscent of English style arbitration. The China International
Commercial Courts (CICC) follow this model. Created as permanent
adjudication organs of the Supreme People’s Court in 2018, they are
staffed exclusively with Chinese judges.11 Yet Singapore, in 2015,
introduced “international judges” with its International Commercial Court
(SICC),12 judges that may come from any jurisdiction.13 Several European
states have established or are exploring the possibility of courts conducting
proceedings in English, ie not in their national language.14
Notwithstanding this exploring of alternatives, mediation and litigation
had one major disadvantage compared to arbitration. Mediated settlements as
well as court judgments had limited effectiveness if the need for enforcement
(abroad) arose. In contrast, the New York Convention (NYC),15 with its
currently 161 Contracting States,16 establishes uniform rules for recognition
and enforcement of arbitral awards worldwide.
7 DEMETER/SMITH, The Implications of International Commercial Courts on Arbitration,
33 JoIA 2016, 441 (concerning specifically the DIFC Courts).
8 For a detailed overview see RUCKTESCHLER/STOOSS, International Commercial Courts,
JoIA 2019, 431, 439 ff; WALKER, Specialised International Courts, 85 Arb 2019, 2, 3 ff.
9 Cf https://www.difccourts.ae/court-structure/judges/.
10 Cf in detail DEMETER/SMITH (fn 7), 445 ff.
11 Cf http://cicc.court.gov.cn/html/1/219/193/195/index.html.
12 On the SICC see, eg, GODWIN/RAMSAY/WEBSTER, International Commercial Courts: the
Singapore Experience, 18 MJIL 2017, 1; LANDBRECHT, The Singapore International
Commercial Court (SICC) – An Alternative to International Arbitration?, ASA Bull
1/2016, 112; WONG, The Rise of the International Commercial Court, 33 CJQ 2014, 205;
YIP, The Resolution of Disputes before the [SICC], 65 ICLQ 2016, 439.
13 The aim was to recruit also civil lawyers. At present, a lawyer from France and one from
Japan serve as international judges, cf https://www.sicc.gov.sg/about-the-sicc/judges.
14 The most promising project at present is probably the Netherlands Commercial Court
(NCC), launched on 1 January 2019, cf https://netherlands-commercial-court.com.
15 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, 1958, entry into force on 7 June 1959.
16 Papua New Guinea joined on 15 October 2019, the Maldives on 16 December 2019, cf
https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards/status2.

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This regulatory landscape has now changed with the arrival of three
new treaties. The Singapore Convention17 facilitates enforcing mediated
settlements (below 2.). The enforcement of state court judgments will be
rendered easier by the Hague Choice of Court Convention (HCCC)18 and by
the Hague Judgments Convention (HJC)19 (below 3.).
There is little doubt that these treaties will improve, to some extent, the
competitiveness of mediation and litigation overall. Yet we shall demonstrate
that, given the matters covered, only the regime established by the HCCC
might provide a potential substitute for commercial arbitration. Still, this
HCCC regime has a long way to go before it reaches the almost universal
recognition of the NYC (below 4.).
2. Know Your Competitor – the Potential (Limited) Role
of the Singapore Convention
The Singapore Convention20 was adopted on 20 December 2018 and
opened for signature on 7 August 2019. Already on the first day, it had 46
signatories, including economic heavyweights such as India, the PRC, and
the USA. It is expected to enter into force in 2020.
According to its Preamble, the Parties to the Singapore Convention
recognise the value of mediation for international trade “as a method for
settling commercial disputes in which the parties in dispute request a third
person … to assist them in their attempt to settle the dispute amicably”.
The Singapore Convention concerns “international” settlement
agreements, Art 1(1). Agreements relating to consumer, family, inheritance,
or employment matters are excluded from its scope, Art 1(2), as are
settlements recorded by a court or arbitral tribunal, Art 1(3).
Each Party to the Convention “shall enforce a settlement agreement in
accordance with its rules of procedure and under the conditions laid down in
this Convention”, Art 3(1). A Party may refuse to grant relief only in
accordance with the Convention’s Art 5.
17 United Nations Convention on International Settlement Agreements Resulting from
Mediation, 2018, adopted on 20 December 2018.
18 Hague Convention of 30 June 2005 on Choice of Court Agreements; entry into force on
1 October 2015; in force for the EU (including Denmark), Mexico, Singapore, and
Montenegro; signed also by the PRC, Ukraine, and the USA.
19 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or
Commercial Matters, concluded on 2 July 2019.
20 See above fn 17.

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The advent of the Singapore Convention is likely to facilitate the
enforcement of mediated settlement agreements. Lack of enforceability is
still considered a major stumbling block.21 To what extent this revolutionises
mediation is of course debatable. It is supposedly the advantage of mediation
that the parties reach a solution amicably. That should include honouring that
solution. If a party fails to do so, and some see evidence “that voluntary
compliance with settlement agreements is declining”,22 mediation may not
have been successful to begin with. Easier direct enforcement of mediated
settlements would then block a party from changing its mind, but that might
make compromise more difficult in the first place. In any event, carefully
drafted settlement agreements contain a dispute resolution clause, enabling
indirect enforcement via judicial proceedings. Depending on the mechanism
chosen, and whether expedited, summary, or documents only procedures are
available, indirect enforcement may be efficient also.
Be that as it may, we are presently concerned primarily with the
competitiveness of arbitration vis-à-vis mediation. It is submitted that the
Singapore Convention will, to put it bluntly, change nothing in this respect.
Mediation and arbitration/litigation are not competitors23 but different
“games”,24 as they are not viable substitutes, this notion of “competitor”
being borrowed from the definition of markets in competition law.25 While it
may be beneficial to integrate them via escalation clauses etc,26 the very fact
that they can be combined confirms that they do not fully replace one
another. Some prefer mediation to arbitration/litigation and see them as
“alternatives”, like some prefer apples to bananas, but the characteristics of
the respective “products”27 remain significantly different.28
21 On the enforcement of mediated agreements see, eg, ALEXANDER, International and
Comparative Mediation, 2009, 301 ff; MEIDANIS, International Enforcement of Mediated
Settlement Agreements, 85 Arb 2019, 49.
22 STRONG (fn 1), 2014.
23 Cf, eg, DILANNI, The Role of Competition in the Market for Adjudication, 18:1 Sup Ct
Econ Rev 2010, 203, 206, distinguishing actions to avoid disputes, negotiation,
adjudication, and coercion. Mediation belongs to the negotiation category,
arbitration/litigation belong to the adjudication category.
24 Similarly HIRSCH, Die „alternative Streitbeilegung“ hat Konjunktur, ZRP 2012, 189.
25 Cf, eg, OECD Market Definition 2012, DAF/COMP(2012)19, 11 (“demand and supply
side substitution”), http://www.oecd.org/daf/competition/Marketdefinition2012.pdf.
26 The views amongst practitioners are divided, see, eg, WHITE & CASE/QUEEN MARY, 2018
International Arbitration Survey: The Evolution of International Arbitration, 6. Arbitration
combined with ADR appears to be more popular with in-house counsel, arbitration as
stand-alone mechanism more popular with private practitioners and arbitrators.
27 Cf Commission Notice on the definition of relevant market for the purposes of Community
competition law, 97/C 372/03, para 7: “A relevant product market comprises all those

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There is no denying the advantages of parties coming to an amicable
solution. But one wonders whether the present fixation on ADR is more than
a passing trend. History suggests that disillusionment will be inevitable.29
The USA, for instance, witnessed an ADR movement in the 20th century.
Some still see a bias in favour of mediation in (US) academic literature.30
Also the English legislator, at the turn of the century, obliged its courts, as
part of their active case management role, to encourage the parties to use
ADR procedures.31 Yet litigation and arbitration are still around. And the
downsides of solely relying on settlement became apparent only too quickly.
In the USA, the probably most famous critique came from Owen M
FISS. He worried about the downsides of relying too heavily on ADR for
society overall but also for the individual parties involved:
“I do not believe that settlement as a generic practice is preferable
to judgment or should be institutionalized on a wholesale and
indiscriminate basis. It should be treated instead as a highly
problematic technique for streamlining dockets. Settlement is for
me the civil analogue of plea bargaining: Consent is often
coerced; the bargain may be struck by someone without authority;
the absence of a trial and judgment renders subsequent judicial
involvement troublesome; and although dockets are trimmed,
justice may not be done. Like plea bargaining, settlement is a
capitulation to the conditions of mass society and should be
neither encouraged nor praised.”32
Another observer formulated his critique in even stronger terms:
“To the extent that ADR methods lack concern for accurate
application of law to fact, they resemble Sumo, or trial by ordeal,
or other ancient methods.”33
products and/or services which are regarded as interchangeable or substitutable by the
consumer, by reason of the products’ characteristics, their prices and their intended use”.
28 According to the European Court of Justice, bananas are in a separate market from other
fresh fruit, such as apples, cf Case 27/76, ECLI:EU:C:1978:22, 1978-207 (United Brands).
29 For a critical assessment of the recent “mediation boom” see RISSE/BACH, Wie frei muss
Mediation sein?, SchiedsVZ 2011, 14; HORNUF/ENGEL, Mediation als Verbraucherschutz –
oder Verbraucherschutz vor Mediation?, SchiedsVZ 2012, 26.
30 Cf references in STRONG (fn 1), 2011 f. STRONG herself (ibid, 2011) is critical of this
apparent bias: “the absence of any empirical data supporting the superiority of mediation
… makes the overt preference for mediation in the scholarly literature somewhat suspect”.
31 Cf r 1.4(2)(e) of the English Civil Procedure Rules (CPR).
32 FISS, Against Settlement, 93 Yale LJ 1984, 1073, 1075.
33 CARRINGTON, ADR and Future Adjudication, 15 Rev Litig 1996, 485, 487.

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A former Lord Chief Justice of England and Wales, LORD THOMAS,
worries that dispute resolution outside the courts hinders the development of
English common law, having in mind private dispute resolution generally,
including arbitration, mediation, ombudsman services etc.34
Günter HIRSCH, a former president of Germany’s highest civil court,
the Bundesgerichtshof, warns that a decrease in court proceedings results in
fewer leading cases, potentially hampering the development of the law.35
HIRSCH referred to arbitration specifically although, one might add, empirical
evidence suggests that, at least in Germany, arbitration cannot possibly be
responsible for the decline in court cases – the number of arbitration
proceedings not increasing enough to cover that decline.36
While this is mainly the perspective of policy makers, for the parties as
well it might not be sustainable to always rely on ADR. A comprehensive
empirical survey by STRONG suggests that parties opt for mediation primarily
because they hope to save costs and time. Other factors such as a more
satisfactory process, cultural disinclination towards litigation or arbitration,
or the desire to preserve an ongoing relationship are apparently lesser
concerns.37 Yet potential savings of costs and time require, in mediation in
particular, the parties’ cooperation. If such cooperation is possible at the time
the dispute arises, excellent. If not, ADR is simply not an option.
Furthermore, indiscriminate reliance on ADR might invite abuse. If
dealing with someone who thinks that he or she is the best dealmaker ever,
despite breaking deals as much as making them, or if your counterpart
considers “no deal” a religion, over-relying on ADR mechanisms will leave
you exposed to threats and bullying. The more aggressive and more ruthless
party might thereby “win”, no matter what the parties put into their original
contract. Judicial proceedings, on the other hand, help at least counterbalance
such tactics in that they provide the bullied party with an antidote.
An in-house counsel once reported at a conference in Geneva that he
forces business to mediate or negotiate no matter what. Yet in the long run,
this is likely to yield satisfactory results only if his counterparts remain
unaware of this strategy. Else they might try to re-negotiate repeatedly, not
34 See most recently LORD THOMAS OF CWMGIEDD, The Common Law in Private Dispute
Resolution’s Shadow, 83 RabelsZ 2019, 487, 489 f.
35 HIRSCH, Schiedsgerichte – ein Offenbarungseid für die staatlichen Gerichte?, SchiedsVZ
2003, 49, 52.
36 Cf in great statistical detail GAIER, Schiedsgerichtsbarkeit vs. staatliche Justiz, in:
Wilhelmi/Stürner (eds), Post-M&A-Schiedsverfahren, 2019, 61, 63.
37 STRONG (fn 1), 2031.

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fearing to be held accountable in court ever. Or it will yield satisfactory
results if his company is always in a stronger negotiating position.
3. The Regulatory Framework Established by the Hague
Conventions and the New York Convention Respectively
While mediation and litigation/arbitration constitute different types of
dispute resolution, litigation and arbitration are substitutes (ie competitors38)
if parties seek adjudication.39 The Choice of Court (below 3.1) and
Judgments Conventions (below 3.2) might increase the competitiveness of
litigation.
3.1 The Hague Choice of Court Convention 2005
The arbitration community monitored the arrival of the Hague Choice
of Court Convention (HCCC) on 1 October 201540 carefully.41 Some consider
it to raise the stakes for arbitration,42 as it was the ambition of its drafters to
provide judgments with a regime that is comparable to that of the New York
Convention (NYC) for arbitral awards.43 In some respects, the HCCC indeed
does have structural advantages over the NYC. We shall briefly highlight
them in the following.
The HCCC governs exclusive choice of court agreements relating to
civil and commercial matters, and only in international cases, Art 1. The
HCCC also excludes numerous subject matters from its scope, for instance
consumer, employment, family, insolvency, or anti-trust matters, to name but
38 For competition to investment arbitration see WYATT/LANDBRECHT, Strict Estoppel for
Complaints that the Right to be Heard has been Violated?, b-Arbitra 2018/2, 233, 234 f.
39 Cf fn 23 and corresponding text above.
40 See above fn 18.
41 See recently, eg, PALERMO, The Future of Cross-Border Disputes Settlement: Back to
Litigation?, in: González-Bueno (ed), 40 under 40 International Arbitration, 2018, 357;
BARÓ HUELMO, There and back again: ¿de vuelta a la litigación para disputas
transfronterizas?, Spain Arbitration Review 2018, 9.
42 Discussing the HCCC and arbitration furthermore ARVIND, The Draft Hague Judgments
Convention, 51 Neth Int L Rev 2004, 337; BRAND, Arbitration or Litigation?, Univ of
Pittsburgh Research Paper No 2009-14; KEYES, Jurisdiction Under the [HCCC], JPIL
2009, 181; LIPE/TYLER, The [HCCC], 33 Houston J of Int L 2010, 1; NEWING/WEBSTER,
Could the Hague Convention Bring Greater Certainty for Cross-Border Disputes Post-
Brexit?, 10 DRI 2016, 105; SCHULZ, The Hague Convention of 30 June 2005 on Choice of
Court Agreements, YPIL 2005, 1; TEITZ, The [HCCC], 53 Am J of Comp L 2005, 543.
43 Cf HARTLEY/DOGAUCHI, Convention of 30 June 2005 on Choice of Court Agreements.
Explanatory Report, para 1.

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a few, Art 2. This appears restrictive,44 but it can also be seen as a structural
advantage over the NYC regime in that the HCCC clarifies, at treaty level
and thus in a uniform manner,45 which choice of court agreements must be
considered admissible in general.46 The corresponding concept of arbitrability
for arbitration agreements, on the other hand, is not defined in the NYC,
which allows the states to define it in whichever way they please,47 inviting
inconsistency around the globe.
The chosen court must take the case, excluding forum conveniens and
lis pendens considerations,48 unless the agreement is null and void under the
law of the chosen court, Art 5. This aspect is a welcome clarification for
litigation circles, but hardly surprising for arbitration practitioners.
The HCCC also defines the circumstances under which a court seised –
albeit not chosen – may ignore the choice of court agreement, Art 6, a
provision that is again slightly more detailed than the corresponding Art II(3)
of the NYC.
Finally, a judgement rendered by the chosen court must be recognised
and enforced, Art 8, unless one of the exhaustively listed exceptions (Art 9)
applies. From a structural perspective, the regime established by Art III and
Art V of the NYC is by and large similar. Yet the distinct advantage of the
HCCC in this area will be that states can develop systemic trust in each
other’s judiciary.49 If they have determined that another state’s courts are
trustworthy, they can follow a more streamlined approach in future cases. In
arbitration, by contrast, there is no basis for systemic trust given that each
arbitral tribunal is new and no legal order autonomously monitors, controls,
and ultimately takes responsibility for all arbitral tribunals and their
decisions; systemic trust can, at best, develop in the decisions of state courts
dealing with arbitral awards.
44 Cf PALERMO (fn 41), 364, with references.
45 See in detail LANDBRECHT, Uniform Jurisdiction Rules under the Hague Choice of Court
Convention, 19 YPIL 2017/2018, 109, 113 ff.
46 For the avoidance of doubt, a choice of court agreement falling outside the HCCC’s scope
may still be admissible under some domestic law. Yet the point here is that choice of court
agreements falling within the HCCC’s scope must be considered admissible.
47 Cf only BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland,
20153, para 187; TANG, Jurisdiction and Arbitration Agreements in International
Commercial Law, 2014, 247.
48 HARTLEY/DOGAUCHI (fn 43), para 3.
49 Cf in detail LANDBRECHT, Das Haager Übereinkommen als Herausforderung für die
Handelsschiedsgerichtsbarkeit?, IPRax 2019, 330, 333.

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3.2 The Hague Judgments Convention 2019 (HJC)
The conclusion of the Hague Judgments Convention (HJC)50 on 2 July
2019 was also immediately reported in the arbitration community.51 It was
highly anticipated and therefore merits a brief introduction. Yet its impact on
commercial arbitration is likely to be minimal.
The HJC governs only cross-border recognition and enforcement of
judgments rendered in civil and commercial matters, Art 1. As with the
HCCC, numerous subject matters are excluded, Art 2. The HJC expressly
does not apply to arbitration and related proceedings, Art 2(3).
The HJC appears to establish a far-reaching principle. Any judgment
within its scope must be recognised and enforced, Art 4, unless one of the
reasons for refusing to do so (Art 7) applies. Yet a judgment falls within the
HJC’s scope only if a court relies on one of the – exhaustively listed –
grounds of indirect (recognition) jurisdiction (Anerkennungszuständigkeit)
pursuant to Art 5.
These grounds of indirect jurisdiction relate to (i) a defendant’s forum,
Art 5(1)(a)–(f), (l); (ii) the place of performance of a contractual obligation,
Art 5(1)(g); (iii) the location of immovable property, Art 5(1)(h)–(i); (iv) the
place where the death, physical injury, damage to or loss of tangible property,
resulting in a non-contractual obligation, was directly caused, Art 5(1)(j); (v)
a forum designated in a voluntary trust, Art 5(1)(k); and (vi) a forum
designated in a non-exclusive choice of court agreement, Art 5(1)(m).
Additional restrictions apply in consumer and employment matters, Art 5(2).
While these grounds appear uncontroversial, which made the HJC
possible in the first place, this cautious approach will also limit the HJC’s
added value when compared to the status quo – as judgements relying on
these grounds of jurisdiction are likely to be recognised already under the
existing rules in many countries (leaving aside the reciprocity requirement
with regard to which the HJC may indeed bring a welcome innovation).
From arbitration’s perspective, the HJC appears to add little, as there is
virtually no overlap between its scope of application and that of the NYC.
First, arbitration agreements, at least as soon as they are relied upon, have the
effect of exclusive choice of forum agreements. The HJC only governing
non-exclusive choice of court agreements will not compete with arbitration in
this respect. Second, as regards the other grounds of jurisdiction, arbitration
could not come into play anyway – for lack of a choice of forum agreement.
50 See above fn 19.
51 See GAR News of 3 July 2019, “Judgments convention adopted in The Hague”.

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4. Assessment and Outlook
In conclusion, it is only the HCCC, of the three new treaties discussed
above, that establishes a regime possibly competing with the NYC. Still,
arbitration retains significant advantages on a regulatory level.
On the one hand, the NYC has a much wider scope of application, not
necessarily with regard to the subject matters covered, but in a territorial
respect. While 161 members have joined the NYC,52 the HCCC has to date
only 31 Contracting States – of which 28 belong to the EU within which
enforcing civil and commercial judgments is almost as straightforward as
enforcing domestic ones.53 According to delegates, the Hague Conference
hopes for the PRC’s ratification and ripple effects on the region in view of
the Belt and Road Initiative. But it is unlikely that the USA will ratify
anytime soon, and some observers consider the likelihood of the HCCC’s
success to hinge precisely upon the participation of the USA.54
On the other hand, the HCCC does not establish any kind of uniformity
or similarity of civil procedure rules. Admittedly, neither does the NYC. Yet
with arbitration legislation now being based on the UNCITRAL Model Law
in 80 countries and a total of 111 jurisdictions,55 as well as largely parallel
developments in other jurisdictions,56 parties will not encounter, at least in
the main arbitration markets and if they choose established arbitration rules,
unwelcome surprises as regards the basics of arbitral procedure. Whereas
litigation remains a fairly domestic enterprise with numerous idiosyncrasies
in each jurisdiction that can surprise even seasoned practitioners.
Finally, it is uncertain whether the parties will not encounter the exact
same problems in international court litigation that they are currently
deploring in arbitration.57
52 See above fn 16.
53 This is courtesy of the Regulation (EU) No 1215/2012 of the European Parliament and the
Council of 12 December 2012 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (recast) (Brussels Ia).
54 See, eg, HUBER, Das Haager Übereinkommen über Gerichtsstandsvereinbarungen, IPRax
2016, 197, 207. Cf on the HCCC’s potential in general LANDBRECHT (fn 49), 330.
55 Cf https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration/status.
56 MENON, International Commercial Courts: Towards A Transnational System Of Dispute
Resolution. Opening Lecture DIFC Lecture Series 2015, para 8(b), www.supremecourt.
gov.sg/Data/Editor/Documents/opening-lecture---difc-lecture-series-2015.pdf.
57 RUCKTESCHLER/STOOSS (fn 8), 448: “Most of the problems criticized by the users of
international arbitration … will be faced by International Commercial Courts as well …”

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When comparing the competitiveness of arbitration and litigation, the
factors debated for decades will thus retain their relevance. This is not the
place to revisit this debate.58 We shall limit ourselves to three observations.
First, it might be useful to distinguish hard factors and soft factors in
the assessment of the competitiveness of arbitration and litigation. Whereas
the first stem from the regulatory framework and their impact is independent
of both the parties’ agreement and how individual proceedings are handled
(for instance59 neutrality, centralised dispute resolution, finality of the
decision, party autonomy, confidentiality, enforcement), the potential impact
of soft factors (for instance the competence and expertise of the decision-
makers, cost, speed) would depend on the behaviour of the individuals
involved – and is thus more difficult to predict in general.
Second, the usual focus on the variety of potentially relevant hard
factors fails to observe that, where the parties focus on a single regulatory
advantage, arbitration and litigation may not even compete in their minds –
the two mechanisms not sharing the relevant characteristics which would be
required for making them substitutes.60 For instance, parties seeking
confidentiality will choose arbitration without worrying about anything else.
Hard factors are unique selling points as long as parties are sufficiently
interested. The HCCC will modify the landscape only with regard to one of
those factors, namely enforcement – admittedly at present the number one
most valuable characteristic of arbitration from the perspective of the
respondents to the latest Queen Mary Survey.61 Yet whether this indeed
significantly improves the effectiveness of judgments remains to be seen.
Third, the impact of soft factors on the parties’ choices would seem to
depend on the jurisdictions compared, and the parties’ expectations. Parties
used to efficient court proceedings at home might be more difficult to
convince than parties with less convincing experiences.
58 Cf, eg, HWANG, Commercial Courts and International Arbitration—Competitors or
Partners?, 31 Arb Int 2015, 193; RUCKTESCHLER/STOOSS (fn 8), 442 ff; WALKER (fn 8), 2.
59 Cf on these factors BORN, International Arbitration: Law and Practice, 20162, §1.02.
60 Cf above fn 27.
61 WHITE & CASE/QUEEN MARY (fn 26), 7.

ARTICLES
882 37 ASA BULLETIN 4/2019 (DECEMBER)
Johannes LANDBRECHT, Commercial Arbitration in the Era of
the Singapore Convention and the Hague Court Conventions
Summary
Disputes are complex affairs. Parties can attempt to resolve them
themselves, either with external help (mediation) or without (negotiation),
or they can leave it to a third person to decide (arbitration/litigation).
Traditionally, commercial arbitration was considered to have a
quasi-monopoly on cross-border dispute resolution. Whether or not this
was accurate in the past, the arrival of the Singapore Convention (2018)
concerning mediated settlements and the Hague Choice of Court and
Judgments Conventions (2005 and 2019) might change that perception.
Notwithstanding this, the Singapore Convention will have little
impact on commercial arbitration. Parties benefit from mediation in
appropriate cases, but these two types of dispute resolution, resolution by
agreement of the parties or via decision by a third person, remain
fundamentally different and not substitutes for one another.
The two Hague Conventions will facilitate the enforcement of
judgments and improve the competitiveness of litigation. However, given
their scope, only the first might establish a regime that could rival
commercial arbitration, although due to the limited number of Contracting
States of the Hague Choice of Court Convention, it is unlikely that
litigation will compete with commercial arbitration on an equal footing
anytime soon.

ASA Bulletin December 2019 No 4
FOUNDER OF THE ASA BULLETIN
Prof. Pierre LALIVE
ADVISORY BOARD
Prof. Piero BERNARDINI – Dr Matthieu DE BOISSESON –
Prof. Dr Franz KELLERHALS – Prof. François KNOEPFLER –
Prof. François PERRET – Prof. Pierre TERCIER – V.V. VEEDER QC. –
Dr Werner WENGER
EDITORIAL BOARD
Editor in Chief
Matthias SCHERER
Editors
Philipp HABEGGER – Cesare JERMINI –
Bernhard BERGER – Catherine A. KUNZ –
Johannes LANDBRECHT – Crenguta LEAUA – James FREEMAN
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Angelika KOLB-FICHTLER
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