John Brand – South Africa and the Singapore Convention
Director of Conflict Dynamics, SIMI Certified Mediator, IMI Certified Mediator
John Brand is a lawyer and retired consultant and ADR specialist at Bowmans. He is also a director of Conflict Dynamics cc. He serves on the ADR Advisory Committee of the South African Law Reform Commission and is on the Executive Committee of the National Dispute Settlement Practitioners Council. John is an International Mediation Institute (“IMI”) Certified Mediator and also served as a member on the IMI’s Independent Standards Commission. He is also a Singapore International Mediation Institute ("SIMI") Certified Mediator.
He specialised in dispute resolution and the training of negotiators, mediators and arbitrators and is a Centre for Effective Dispute Resolution (CEDR UK) accredited mediator.
He has written extensively in journals and other publications and co-authored “Commercial Mediation – a User’s Guide” and “Labour Dispute Resolution” both published by Juta.
Over the past 30 years, he has arbitrated and mediated many large commercial and employment disputes and he regularly facilitated negotiation, strategic planning and transformation processes.
He was a member of the International Labour Organisation’s team of international experts appointed to design mediation training for developing countries and he regularly trained mediators from countries in Africa, Asia, Eastern Europe and South America. The International Labour Organisation also commissioned John to design training material and to train parties and trainers from countries across the world in mutual gain negotiation. This training material has been translated into French, Portuguese and Arabic and is used extensively throughout the world.
South Africa and the Singapore Convention
by Mr. John Brand
Date: 15 April 2020
Time: 19:00 GMT+8:00 / 1:00PM CEST
Mr. John Brand (Director of Conflict Dynamics, IMI Certified Mediator, and SIMI Certified Mediator) gave an interesting presentation on the topic ‘South Africa and the Singapore Convention’. Mr. Brand started his presentation with a brief overview of the purpose of the Singapore Convention on Mediation (SCM)1. He stated that it was to address the lack of certainty as to whether mediation settlement agreements are enforceable in different countries. He added that the courts of Signatory States are mandated to enforce settlement agreements so long as the mediation settlement agreement complied with the conditions set out in the SCM.
Mr. Brand opined that the SCM aims to elevate the status of cross-border mediation in a similar manner to what the New York Convention2 had achieved for arbitration. He believed that the SCM may enhance international trade and commerce as commercial parties would be able to access and reap the benefits of a flexible, cheaper, and faster method of dispute resolution for their transnational disputes, when compared to arbitration and litigation.
Next, Mr. Brand shared his views on how South Africa would benefit from the SCM. He opined that the ratification of SCM by South Africa would be an indication to the world that the government places significant importance to mediation as a distinct dispute resolution mechanism. Thus, the country would attract much needed foreign trade and investment parties who would then be able to benefit from mediation in their transnational disputes.
Mr. Brand opined that South Africa would have little difficulty in complying with standards set out in the SCM if and when it chooses to ratify it. He went on to consider the enormous efforts that South Africa has undertaken to ensure proper standards for mediation service providers, ethics, training and accreditation for professional mediators. The South African Law Commission’s ADR Advisory Committee is currently holding discussions with the government to crystalize these standards in domestic legislation. He surmised that South Africa has a large pool of internationally trained and accredited mediators, and added that the country also has a well-developed voluntary arbitration system. The International Arbitration Act 15 of 2017 (the IAA) has incorporated the UNCITRAL Model Law3 with its domestic laws. This has allowed cross-border arbitration in South Africa to be regulated. As such, South Africa mediation and arbitration practice is consistent with modern international best practices, and the country is ready to handle international and transnational disputes.
Mr. Brand opined that the first step that South Africa needs to take would be for its government to sign and ratify the SCM. He fears that inaction would send a negative signal to foreign trade investors. He is, however, hopeful that the South African government will realize this soon and sign the SCM. Mr. Brand opined that South Africa’s approach to the protection of investor rights would greatly affect foreign trade and investment. He considered being a Signatory country to the SCM to be an edge over countries offering similar protection to foreign investor rights and that more could be done by the South African government.
He concluded by reflecting that though mediation in South Africa is developed enough to take advantage of the SCM, without formal action to ratify the SCM and domestic reforms to protect investor rights, South Africa is likely to lose much-needed foreign trade investment to Signatory countries of the SCM.
Q&A / Topics for Discussion
Some questions addressed by Mr. Brand during the session are as follows:
- What, if any, policy factors can inhibit South Africa from signing and ratifying the Convention?
- What role can mediation play in Africa as a continent?
- Which interest groups can influence the South African government to sign and ratify the SCM?
- Would the settlement agreement of an international dispute from a private mediation in Singapore (a Signatory country) be enforceable in South Africa (a non-Signatory country)?
- How will foreign direct investment be affected as a result of investor state dispute settlement reforms in South Africa?
- What are the impacts of SCM on the role of South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA)?
- How will the amendments to Rule 41A of the Uniform Rules of Court contribute to the growth of mediation?4
- How can lawyers in South Africa influence investors to use mediation for their disputes?
We invite you to listen to Mr. Brand's answers from the video record of the session, as well as to catch up on his response to other questions not listed above.
Links to other requested resources that came up during the session are provided below:
The team at SIMI and IMI would like to express our gratitude to Mr. Brand for sharing his time to be a speaker at the Singapore Convention Seminar Series, and to participants for joining us live for the session. Do join us for our next seminar on ‘The potential of the Singapore Convention in Malaysia’!
1 Officially named United Nations Convention on International Settlement Agreements Resulting from Mediation.
2 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.
3 UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018.
4 Uniform Rule 41A: Mediation as a Dispute Resolution came into force 0n 9 March 2020. A copy is available here.
5 There is cross recognition offered between IMI’s Certified Mediators and SIMI’s Certified Mediators. Individual mediators accredited on other levels by IMI or SIMI do not qualify for cross recognition by virtue of having not met the minimum required experience.