我国国际商事和解协议执行机制研究

On the Enforcement of the International Commercial Settlement Agreements in China

我国现行商事和解协议可以通过当事人平等协商、调解、诉讼和仲裁程序中达成。通过协商和调解达成的和解协议主要依据当事人自动履行,在诉讼程序和仲裁程序中达成的和解协议可以得到法院的执行。《新加坡调解公约》项下的国际和解协议指在独立的调解程序中达成的协议,由缔约国按照当地程序规则和公约规定的条件执行。本文结合我国有关执行商事和解协议的立法与司法实践,就《新加坡调解公约》项下的国际商事和解协议在我国执行中所涉及的一些法律问题,包括东道国政府与外国投资者之间的和解协议的性质、公约项下的国际商事和解协议在我国的执行程序和执行条件、以及关于我国是否应当在近期内批准加入《新加坡调解公约》等问题,提出自己的一些思考。作者认为,无论我国在近期内是否考虑批准加入该公约,都应要尽快做好建立和完善我国商事调解法制的各项准备工作:在立法层面上尽快制定和出台规范商事调解制度的法律规则,在司法层面上由最高人民法院制定执行国际商事和解协议的各项程序规则及相关配套措施。

Settlement agreements could be reached either by consultation and mediation,or by litigation and arbitration procedure. Those reached by consultation and mediation are executed by self-performance in general. Others reached during the litigation and arbitration procedure could be enforced by the courts. International settlement agreements under Singapore Mediation Convention refer to those reached through independent mediation procedure and shall be enforced by the Contracting States according to the local procedure rules as well as to the conditions provided in the Convention. This Article studies the basic rules and law and judicial practices on the enforcement of commercial settlement agreement in China. It explored various legal issues on the enforcement of international settlement agreements in China,including the nature of the State-Investor settlement agreements,procedures and conditions on the enforcement of international settlement agreement under Singapore Mediation Convention in China, as well as whether China should approve the Convention soon. The author held that China should get to the preliminary works to set up commercial mediation legal system as soon as possible whether considering to approve the Convention in the near future or not. In respect to legislation, the rules of law on commercial mediation should be promulgated. As to the judicial practices, the Supreme Court should issue procedure rules and relevant measures on the enforcement of international commercial settlement agreements resulting from mediation.