New Swiss Rules of Mediation

The Swiss Chambers’ Arbitration Institution has announced the release of revised Swiss Rules of Mediation, which entered into force on 1 July 2019.

The revised Rules replace the first harmonised Swiss Rules of Mediation, adopted in 2007.

The stated aim of the revisions is to further encourage their use by clarifying, shortening and simplifying their content. They also include revisions designed to make them compatible with the new enforcement opportunities offered by Singapore Convention on Mediated Settlements, which is anticipated to be signed by the first signatory countries at a ceremony in Singapore on 7 August 2019.

The launch of the new Swiss Mediation Rules will be held in Geneva on 27 September 2019 and in Zurich on 9 October 2019.

 

 

UK: Civil Justice Council report on ADR calls for review of Halsey guidelines but stops short of recommending mandatory mediation

Jan O’Neill
Professional Support Lawyer, London

 

The Civil Justice Council’s ADR working group has released its final report on ADR and Civil Justice, following consultation on its interim report released last year. The broad mandate of the review was “to maintain the search for the right relationship between civil justice and ADR” and to promote debate over possible reforms.

The report includes various recommendations aimed at improving the awareness of ADR (both in the general public and in the professions/judiciary) and the availability of ADR (both in terms of funding/logistics and regulation of the professionals involved).

However the recommendations likely to be of most interest to users of the civil justice system in the short term are those that relate to Court/Government encouragement of ADR.  In this regard:

  • The report does not support blanket compulsion of ADR in the sense of requiring proof of ADR activity as an administrative precondition to any particular step in the litigation.
  • It also rejects the introduction of mandatory Mediation Information and Advice Meetings (as used in the family courts) as a precondition to pursuing civil claims.

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Belt and Road: Supporting the resolution of disputes

We have previously commented on how the sheer complexity and scale of China’s ambitious Belt and Road Initiative is prompting a welcome review of dispute resolution processes including efforts, led and supported by the Chinese government, to encourage mediation clauses in Belt and Road agreements.

In the following article, first published on http://arbitrationblog.kluwerarbitration.com on 16 April 2018, Mingchao Fan (ICC) and Briana Young and Anita Phillips (Herbert Smith Freehills) review the latest development in the efforts to support the resolution of Belt and Road disputes.


 

On 5 March 2018, the ICC Court announced the establishment of a commission to address dispute resolution in relation to China’s Belt and Road Initiative. The commission will drive the development of ICC’s existing dispute resolution procedures and infrastructure to support Belt and Road disputes.

The Belt and Road

The Belt and Road is China’s ambitious infrastructure project spanning more than 70 countries, with an increasing number of non-Chinese investors, contractors and developers – including sovereign states – involved. The project aims to build connectivity and cooperation between China across the land-based Silk Road Economic Belt and the 21st Century Maritime Silk Road. It spans large parts of Asia, the Middle East, Africa and Europe.

A construction and infrastructure initiative on this scale will inevitably generate disputes. With an estimated US$900bn in projects planned or already underway, the project gives rise to a multitude of actual and potential commercial disputes to consider. In response to this, Alexis Mourre, President of the ICC Court, announced the establishment of the commission during the ICC Court’s working session last fall.

It is a competitive field, with numerous existing institutions vying for a share of the Belt and Road disputes market, and new courts and institutions being established specifically for the purpose. It seems clear that parties who adopt the right dispute resolution model in their contracts today will be in a better position to resolve disputes as and when they may arise.

Make-up of the Commission

Justin D’Agostino, Global Head of Disputes at Herbert Smith Freehills and Hong Kong’s alternate member of the ICC Court, has been appointed commission chair. Dr Mingchao Fan, ICC Director for North Asia, will act as secretary. Other commission members are drawn from a range of sectors, representing jurisdictions including the PRC, Hong Kong and Singapore. A broader advisory board, representing other countries along the Belt and Road, is being considered.

ICC recognises the importance of engaging key stakeholders within both corporates and governments all along the Belt and Road, to ensure that it is offering the best possible service to parties on all sides.

Although the ICC Belt and Road Commission’s main objective is to raise awareness of the ICC as a “go-to” institution for disputes arising out of China’s Belt and Road Initiative, the commission has additional relevant aims:

 leveraging ICC’s unparalleled international coverage with secretariats and/or national committees in over 100 jurisdictions to attract Belt and Road disputes;
•  engaging with corporates, state-owned enterprises and governments across all Belt and Road territories; and
 highlighting Belt and Road dispute resolution at a series of events throughout the region, with the aim of promoting ICC’s capabilities widely. Events are planned in locations as diverse as China, Paris, Kazakhstan, Kyrgyzstan, Nigeria, Southeast Asia, Japan and Hong Kong, with more to come.

In the Commission’s view, the combination of the ICC’s tried-and-tested, multi-process services, its unrivalled geographical footprint, and its established credibility and independence, place it in a strong position to resolve Belt and Road disputes.

Sector expertise

On average, construction and engineering disputes account for close to a quarter of all ICC arbitration cases, while the finance and insurance sector accounts for approximately 20%. As the world’s leading arbitral institution, ICC is adept at handling complex multiparty cases as well as high-value, complex multi-party and multi-contract disputes (approximately half of all cases filed involve three or more parties). The introduction in 2017 of an expedited procedure also enables lower-value cases to be handled with greater time- and cost-efficiency.

Mediation matters too

There is no ‘one-size-fits-all’ method of resolving Belt and Road disputes. But there is a concerted effort, led and supported by the Chinese government, to encourage mediation clauses in Belt and Road agreements, with provision for arbitration if mediation fails. ICC is a world-leading arbitration and mediation provider, with tried and tested mechanisms and a strong pool of arbitrators and mediators. It is therefore well placed to provide appropriate, effective dispute resolution services to parties all along the New Silk Road. ICC’s stated objective is to ensure that where disputes arise, they are resolved efficiently and with minimal damage to the parties’ commercial relationships.

New Japan International Mediation Centre

It has recently been announced that a new “Japan International Mediation Centre” (JIMC) is to open in Kyoto in early 2018.

While details on the new centre are still limited, it is known that it is being established in collaboration and with the assistance of the Singapore International Mediation Centre (SIMC), which may provide an indication of how the new centre is likely to operate.

The establishment of the centre is an interesting development in a jurisdiction which is known for its amenability to privately negotiated settlements of disputes but in which (along with many other Asian jurisdictions) the concept of mediation has failed to thrive and become institutionally embedded.

For more on the JIMC, read our Japan Dispute Avoidance Newsletter.

Herbert Smith Freehills also hosts a dedicated ADR Hub as a resource for our clients.  This includes a spotlight series on ADR in Asia Pacific, Issue 2 of which specifically delves into ADR in Singapore including the features of the SIMC.

Consultation on the relationship between courts and ADR in Europe

A consultation has been launched  "to consider the concerns that have arisen in Europe as a result of the exponential growth of numerous different forms of alternative dispute resolution".  

The paper, entitled "The Relationship between Formal and Informal Justice: the Courts and Alternative Dispute Resolution", is a joint project by the The European Law Institute and the European Network of Councils for the Judiciary (the latter chaired by Sir Geoffrey Vos, Chancellor of the High Court).

The consultation's focus is on how the interface between courts and ADR processeses is working in Europe. It seeks views on whether identified concerns can be addressed by developing statements of best practice or models, to be followed by both courts and ADR providers when assessing what dispute resolution process should be adopted in a particular dispute.

The interface between courts and ADR processes is of course a key issue being discussed more globally in the ongoing Global Pound Conference (GPC) series, and it will be interesting to see how the data and commentary generated out of the GPC (following the final event in London in July 2017) compares to the conclusions from this consultation (the final report on which is planned for the end of 2017). 

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Shape the future of dispute resolution: Global Pound Conference moves to Hong Kong

Hosting more than 5,000 corporate and disputes professionals in a series spanning 40 cities across 31 countries, the Global Pound Conference (GPC) is a global conversation about how to improve the resolution of commercial disputes in the 21st century.

Using a unique electronic interactive format, which has been dubbed the blueprint for future conferences, delegates from key stakeholder groups vote anonymously on standardised questions, debated in real time by world class moderators and panellists. The data will be distilled into a global report and white paper, heralding a new era of dispute resolution.  

If you are involved in contentious work (whether litigation, arbitration, ADR or investigations) we invite you take part in this historic series. Click here to find an upcoming GPC event in a city near you and to access the voting results from the events that have taken place to date – in Singapore, Lagos, Mexico City, New York, Geneva, Toronto and Madrid.  To stay up to date on all the conversations and developments throughout the GPC Series, please join us on LinkedIn​.​​

On 23 February 2017, the series moves to Hong Kong. With the backing of leading corporates, institutions and the Department of Justice, the Hong Kong event is set to be a major dispute resolution conference of 2017. General counsel, regional heads and senior executives from leading corporates will share their views, alongside leading international judges, arbitrators and mediators. The Hong Kong event will also include a keynote address from Secretary for Justice, Rimsky Yuen, as well as a closing address from Chief Justice Geoffrey Ma. Click here to access the full programme and here to see the invitation.

Find out more and register your place.

Date:

Thursday, 23 February 2017 

Time:

9am – 6pm, including networking, sit-down lunch

Venue:

The Hong Kong Convention and Exhibition Centre (HKCEC)

Registration fee:

Early bird: US$150 until 31 December 2016

Regular:

US$220

 

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.

 

Investor-State mediations: new mediator competency criteria released

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.

 

 

Updated Jackson ADR Handbook published

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.

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CEDR Mediation Audit results published

The Centre for Effective Dispute Resolution (CEDR) has released the results of its Mediation Audit 2016, based on a survey of practising mediators in the UK.   (The results of a parallel survey of lawyer attitudes to mediation are to be published separately).

The audit is the seventh biennial survey CEDR has conducted in the last 14 years (in conjunction with the Civil Mediation Council).  The 2016 audit received 319 eligible responses from mediators. 

While it is important to bear in mind the empirical limitations of such reviews based on survey responses from a sample of market participants, the audit does highlight a number of interesting trends in civil and commercial mediation in the UK.    CEDR’s key findings from the responses include:

  • the current size of the civil and commercial mediation market in England & Wales is estimated at approximately 10,000 cases per annum (5.2% more than the 9,500 cases estimated in 2014)

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