“一带一路”争端解决机制之调解制度概览

随着“一带一路”与中国自贸区的发展越来越深入，中国与世界多国之间在国际经济贸易交往和合作、知识产权交流与保护等方面的交流愈加朝着纵深方向发展。国际间的民商事往来对涉外纠纷解决提出了更高的要求，同时在解决方式的选择上更倾向多元化。涉外民商事纠纷解决的基本模式是“调解+仲裁或诉讼”。通过国际商事调解这一非诉讼方式解决纠纷，不仅能提升纠纷解决效率，而且能促进矛盾解决，有利于缓和国家之间、企业之间的关系以及不同国家之间的法律、文化冲突，从而有利于各国更好更长远地开展合作。本文将主要围绕国际商事调解制度展开论述，主要分为调解机构现状、调解规则、调解协议效力和调解示范条款四个方面。
With the development of “Belt and Road Initiative” and China Free Trade Zone, the exchanges between China and other countries in international economic and trade exchanges and cooperation, intellectual property protection are also increasing rapidly. International civil and commercial exchanges put forward higher requirements for the settlement of foreign-related disputes. The basic mode of resolving foreign-related civil and commercial disputes is “mediation plus arbitration or litigation”. Solving disputes through international commercial mediation can not only improve the efficiency of dispute resolution, but also promote the resolution of contradictions, which is conducive to easing the relations between countries, enterprises and legal and cultural conflicts between different countries, thus helping countries to carry out better and longer-term cooperation. This article will mainly focus on the outline of international commercial mediation mechanism, which is divided into four aspects: the status quo of mediation institutions, mediation rules, legal effect of settlement agreements and mediation model clauses.
一、调解机构现状
I. Status quo of mediation institutions
商事调解作为替代争议解决方式（ADR）机制中的重要部分，被各国纳入国际商事纠纷解决的法律程序中。中国国际贸易促进委员会调解中心、上海经贸商事调解中心是首批纳入“一站式”国际商事纠纷多元化解决机制的调解机构。此外，杭州、上海、广东、北京等地各地纷纷开始探索和实践涉外商事调解机制。以上海为例，上海经贸商事调解中心与上海市浦东新区人民法院自贸区人民法庭进行对接，将涉外商事纠纷交由外籍调解员调解。
As an important part of alternative dispute resolution (ADR) mechanism, commercial mediation has been brought into the legal procedure of international commercial dispute resolution by many countries. Mediation Center of China Council for the Promotion of International Trade (“CCPIT”) and Shanghai Commercial Mediation Center are the first-batch of mediation institutions to be included in the “one-stop” diversified resolution mechanism of international commercial disputes. In addition, Hangzhou, Shanghai, Guangdong, Beijing and other cities have begun to explore and practice the foreign-related commercial mediation methods. Taking Shanghai as an example, Shanghai Commercial Mediation Center docked with the People’s Court of Shanghai Pudong New Area Free Trade Zone, resulting that foreign-related commercial disputes can be referred to foreign mediators for mediation.
二、调解规则
II. Mediation rules
联合国国际贸易法委员会制订的《联合国关于调解所产生的国际和解协议公约》，又称《新加坡调解公约》，已经于2020年9月12日生效，《新加坡调解公约》已有包括中国、美国、英国、韩国、印度在内的56个签约国。《新加坡调解公约》使得调解达成的和解协议在《新加坡调解公约》成员国之间跨境执行成为可能，将有力促进调解在解决国际经贸商事争议中的作用。但是，《新加坡调解公约》我国虽已签署，但尚未通过全国人大批准，依照该公约达成的商事纠纷调解协议在我国的承认和执行尚无依据。
United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the “Singapore Convention on Mediation”, which is formulated by the United Nations Commission on International Trade Law, has been come into effect on September 12, 2020. The Singapore Convention on Mediation has 56 signatories, including China, the United States, Britain, South Korea and India etc. Singapore Convention on Mediation makes it possible for the settlement agreement reached through mediation to be implemented across borders among the members of the said Convention, which will greatly promote the role of mediation in solving international economic and commercial disputes. However, although China has signed the Singapore Convention on Mediation, it has not been approved by the National People’s Congress, and there is no basis for the recognition and implementation of settlement agreements reached in accordance with the said Convention.
目前，我国虽然尚未制定商事调解专门法，但2023年1月1日，《在线商事调解服务规范》团体标准（T/CCPITCSC 108-2022）开始实施，该标准是由杭州市贸促会提出，联合中国贸促会商业行业委员会、中国贸促会调解中心共同起草并对外发布，填补了国内外在线商事调解领域的标准化空白。
At present, although China has not yet formulated a special law on commercial mediation, the group standard “Online Commercial Mediation Specifications” (T/CCPITCSC 108-2022) came into effect on January 1st, 2023. This standard was put forward by Hangzhou Committee of CCPIT, and jointly drafted and released by the CCPIT Commercial Sub-council and the Mediation Center of CCPIT, which filled the standardization gap in the field of online commercial mediation.
三、调解协议的法律效力
III. Legal effect of settlement agreements
在我国，商事调解和解协议的法律效力因调解协议类型的不同而有所差异，调解协议大致分为以下三种：
In China, the legal effect of commercial mediation and settlement agreements are different due to different types of settlement agreements, which can be roughly divided into the following three types:
1. 经法院主持的调解所达成的调解协议
Settlement agreements reached through mediation conducted by the court.
对于经法院确认的和解协议，我国可以通过双边民商事司法协助协定对其进行跨国执行，但由于我国与“一带一路”沿线国家签订司法协助协定的比例还不够高，因此这也并不是一种高效的纠纷解决方式。
As for the settlement agreement confirmed by the court, it can be implemented internationally through bilateral civil and commercial judicial assistance agreements. However, due to the proportion of judicial assistance agreements signed between China and countries along the “Belt and Road Initiative” is not highly enough, it is not an efficient way to solve disputes.
2. 经仲裁机构主持的调解所达成的调解协议
Settlement agreement reached through mediation conducted by an arbitration institution.
根据我国仲裁法律的相关规定，仲裁庭可以依据当事人的和解协议制作调解书，调解书与裁决书具有同等法律效力。目前，包括我国在内，共有57个“一带一路”沿线国家加入了《承认及执行外国仲裁裁决公约》(又称《纽约公约》)，和解协议转化为仲裁调解书或裁决书后，就可以在“一带一路”沿线国家得到较为普遍的执行。
According to the relevant P.R.C. legal provisions of arbitration, the arbitration tribunal may make a written conciliation statement or make an arbitration award in accordance with the result of the settlement agreement; the written conciliation statement and an arbitration award shall have equal legal effect. At present, including China, a total of 57 countries along the “Belt and Road Initiative” have joined the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the “New York Convention”). After the settlement agreement is converted into an arbitration conciliation statement or an award, it can be widely implemented in countries along the “Belt and Road Initiative”.
3. 经商事调解组织机构主持的调解所达成的调解协议
Settlement agreements reached through mediation conducted by commercial mediation organizations.
此种模式下所形成的商事和解协议属于合同，并不具有强制执行力。根据我国相关法律的规定，此类和解协议可以转化为公证债权文书、支付令或者通过司法确认程序得到执行，但这都没有对和解协议的执行力予以确认。[1]
The settlement agreement reached via this mode is not enforceable. According to relevant laws, such settlement agreement can be enforced by converting into notarized documents, payment orders or enforced through judicial confirmation procedures, but none of them confirm the legal enforcement of the settlement agreement.
四、经由商事调解组织调解的示范条款
IV. Model clause of the mediation organized by mediation center
凡因本合同引起的或与本合同有关的任何争议，各方均同意提交【】进行调解。调解成功的，当事人可申请【有管辖权的人民法院】进行司法确认，或通过【公证机构】进行确认出具公证书。调解不成的，当事人可将案件提交【仲裁机构名称】提通过仲裁解决/【有管辖权的人民法院】通过诉讼解决。
Any disputes arising out of or in relation to this Contract shall be submitted to the [] for mediation; where any settlement reached during the mediation, all parties may submit the settlement agreement to [the people’s court with jurisdiction] for a judicial confirmation or, to [the full name of the notary public office] for a notarial certificate. Where no settlement reached during the mediation, any party may submit the disputes to [the full name of the arbitration organization] for arbitration / to [the people’s court with jurisdiction] for litigation.
综上，鉴于“一带一路”沿线国家的国情不同，采用传统纠纷解决方式解决国际商事争议面临司法管辖、法律适用等方面难题，而调解制度具有独特的文化优势，是一种高效、便利的纠纷解决方式。因此，“一带一路”建设中相关企业/个人可以考虑首选商事调解作为争议解决的方式，在调解中通过减少分歧、求同存异等价值理念平息争议，维系各方作为合作伙伴之间的商业关系。
To sum up, in view of the different national conditions of countries along the “Belt and Road Initiative”, it is difficult to solve international commercial disputes by traditional dispute settlement methods in terms of jurisdiction and law application, while mediation system has unique cultural advantages and is an efficient and convenient dispute settlement method. Therefore, in the construction of “Belt and Road Initiative”, relevant enterprises/individuals can consider mediation as the first choice for dispute settlement, and finally settle disputes by seeking common ground, so as to maintain the business relationship between parties as cooperative partners.
[1] 根据《最高人民法院关于建立健全诉讼与非诉讼相衔接的矛盾纠纷解决机制的若干意见》第12条、第13条的规定，经行政机关、人民调解组织、商事调解组织、行业调解组织或者其他具有调解职能的组织对民事纠纷调解后达成的具有给付内容的协议，当事人可以按照我国《公证法》的规定申请公证机关依法赋予强制执行效力；债务人不履行或者不适当履行具有强制执行效力的公证文书的，债权人可以依法向有管辖权的人民法院申请执行；对于具有合同效力和给付内容的调解协议，债权人可以根据我国《民事诉讼法》和相关司法解释的规定向有管辖权的基层人民法院申请支付令，申请书应当写明请求给付金钱或者有价证券的数量及所依据的事实、证据，并附调解协议原件。
In accordance with Article 12 and Article 13 of Several Opinions of the Supreme People's Court on Establishing a Sound Conflict and Dispute Resolution Mechanism that Connects Litigation and Non-litigation, for an agreement containing payment reached through the civil dispute mediation conducted by an administrative organ, a people's mediation organization, a commercial mediation organization, an industrial mediation organization or any other organization with the function of mediation, the parties may, in accordance with the Notary Law of the People's Republic of China, apply to the notarization body for granting enforceability to the agreement in accordance with law. If a debtor fails to perform or properly perform a notarized document with enforceability, the creditor may legally apply to the people's court having jurisdiction for enforcement; for a mediation agreement with the effects of a contract and a content of payment, the creditor may, in accordance with the Civil Procedure Law of the People's Republic of China and the relevant judicial interpretations, apply to the grassroots people's court having jurisdiction for a payment order. The written application shall state the amount of money or securities claimed as well as facts and evidence, to which the original of the mediation agreement shall be attached.