Further to our earlier posts (here and here) highlighting material from our recently updated Guide to Dispute Resolution in Asia Pacific, we now feature in part 3 the responses from New Zealand, Pakistan, Philippines, Singapore, Taiwan, Thailand and Vietnam to the question whether parties to litigation or arbitration are required to consider or submit to ADR procedures before or during proceedings.
At a launch on 24 November 2016, the Centre for Effective Dispute Resolution (CEDR) released updates for all of its main model mediation documents and rules. The updated documents are available on the CEDR website here (requiring free registration), including:
- ADR contract clauses
- ADR Notice
- Mediation Procedure
- Mediation Agreement
- Settlement Agreement / Tomlin Order
- Code of Conduct for Third-party Neutrals
(CEDR also provides employment mediation contract clauses as well as model procedure documents for other ADR processes, including expert determination and early neutral evaluation.)
The key changes from the 2016 versions of the documents are summarised in the accompanying notes, here.
A Mediation Bill has recently been put before the Singapore Parliament with a view to encouraging the growth of mediation in the jurisdiction. The three key proposals in the Bill (which echo similar provisions in the EU Mediation Directive and various other mediation laws around the world) are:
(i) A power (though not a duty) in the courts to stay proceedings in favour of mediation agreed by the parties
(ii) A mechanism for settlement agreements reached at pre-litigation mediations to be recorded and enforced as court orders; and
(iii) Confirmation of the confidentiality of mediation communications.
Read more detail on the proposals here.
ADR for financial disputes: Proposals to significantly enhance the Hong Kong Financial Dispute Resolution Scheme
The Hong Kong Financial Dispute Resolution Centre (FDRC), which since June 2012 has been providing ADR services to financial institutions and their individual customers in Hong Kong, has recently launched a consultation to significantly enhance the Financial Dispute Resolution Scheme (FDRS) administed by it. The FDRS provides a channel for the resolution of monetary disputes by way of “mediation first, arbitration next”.
The proposals mean that the FDRC’s jurisdiction is likely to be significantly increased, bringing the Hong Kong scheme more into line with financial dispute resolution schemes in other jurisdictions and permitting a greater number of monetary disputes to be handled by the FDRC rather than (or as well as) the courts.
Read more detail from our Hong Kong office here.
Settlement offer conveyed through a mediator found not to be protected by without prejudice privilege due to ‘unambiguous impropriety’
The Court of Appeal has recently applied the rarely invoked "unambiguous impropriety" exception to without prejudice ("WP") privilege, to find that a written settlement offer conveyed through a mediator following an unsuccessful mediation was not protected by WP: Ferster v Ferster  EWCA Civ 717.
Communications in connection with a mediation (including when the mediator acts as a conduit for negotiations after the mediation) will of course normally be protected by WP privilege. However, one of the narrow exceptions to the WP privilege is where the communication involved some 'unambiguous impropriety', in the sense of an attempt to abuse the protection afforded by the privilege. In the present case, the Court of Appeal found that correspondence conveying a settlement offer on behalf of the claimants constituted an unambiguously improper threat against the defendant in the nature of blackmail and, as such, was not protected.
The decision serves as a reminder that WP privilege cannot be used as a cloak for impropriety. It also underlines the fact that there is a distinction to be drawn between the use of proper leverage in the context of settlement discussions and the making of improper threats. The courts will take a dim view of the latter. Read more commentary on the decision here.
Herbert Smith Freehills has published an updated second edition of our Guide to Dispute Resolution in Africa, a publication summarising the key dispute resolution procedures and trends in each of Africa's 54 diverse jurisdictions.
Since its publication in 2013, the first edition of the Guide has proved to be an invaluable resource not just for those facing disputes in Africa but for anyone who is considering investing in unfamiliar territory and would like to understand better the legal landscape of that country. Whether you want to know the basics of a country's legal system, details on litigation and arbitration procedures, whether ADR is embraced, or what the applicable limitation periods or privilege rules are, this publication should be a first port of call.
To request a hard copy of the Guide, please email Africa Disputes.
The International Mediation Institute (IMI) has published "Competency Criteria for Investor-State Mediators", designed to assist with the selection of suitable mediators for disputes involving private sector entities and States.
The Criteria have been prepared in response to that fact that, while a pool of Investor-State arbitrators has developed over the recent years, and while, in parallel,
mediation of international disputes has gained momentum, there is as yet no readily available pool of accredited or identifiable Investor-State mediators from which parties can choose their mediator or co-mediators. In particular, it is based on an acknowledgment that (i) the skillset required of mediators differs substantially from that of arbitrators and of other neutrals such as conciliators and adjudicators; and (ii) not all competent mediators may be suitable for mediating investment disputes, given the particular legal, political and procedural issues commonly arising in such disputes (such as questions of who has authority to represent the State, public interest defences, transparency concerns and sovereign immunity claims).
To discuss the use of mediation in investment disputes, contact Alexander Oddy (Head of ADR) or a member of our leading investment treaty arbitration and investment protection practice.
A new (second) edition of the Jackson ADR Handbook was published on 8 September 2016.
The original edition of the Handbook (see our bulletin here) was published in 2013 as one of the suite of measures recommended by Lord Justice Jackson in his 2010 Review of Civil Litigation Costs. That Review endorsed a "serious campaign" to ensure that lawyers, judges and the public were alerted to the benefits of ADR in resolving disputes, and recommended that an authoritative handbook be prepared to provide practical and concise guidance on all aspects of ADR, and in particular the use of ADR in relation to civil claims in England and Wales.
Further to our earlier post highlighting material from our recently updated Guide to Dispute Resolution in Asia Pacific, we now feature in part 2 the responses from Indonesia, Japan, Korea, Laos, Macau, Malaysia and Myanmar to the question whether parties to litigation or arbitration in that jurisdiction are required to consider or submit to ADR procedures before or during proceedings.
Client Event: London Launch of HSF Guide to Dispute Resolution in Africa, second edition. Locking Horns in Africa? Let us Be Your Guide
Herbert Smith Freehills is delighted to invite clients to the London launch event of the second edition of our Guide to Dispute Resolution in Africa.