ICSID releases revised proposed Mediation Rules

On 15 June 2021, the International Centre for the Settlement of Investment Disputes released its latest working paper as part of its Rules Amendment Project. In addition to proposing changes to the ICSID Convention and ICSID Additional Facility arbitration and conciliation, as covered in an earlier blog post, Working Paper 5 also refines the proposed new rules for ICSID fact-finding and mediation. Continue reading

Mediation in Arbitration Podcast: The Profile of Mediation in Arbitration

We are pleased to share this Mediation in Arbitration podcast, in which Craig Tevendale, Chris Parker and Rebecca Warder discuss the results of the Herbert Smith Freehills and London Chamber of Arbitration and Mediation (LCAM) Mediation in Arbitration Survey (discussed in this previous post). The podcast also covers potential barriers to mediation in international arbitration, how these might be overcome and the future of mediation in arbitration. Continue reading

All-Party Parliamentary Group for Alternative Dispute Resolution publishes report on best practice lessons between Singapore and the UK

The All-Party Parliamentary Group for Alternative Dispute Resolution (the “APPG”) has recently published a report titled ‘Securing the UK’s position as a global disputes hub: Best practice lessons between Singapore and the UK’ (the “Report). The Report follows from the APPG’s fact-finding visit to Singapore, in which it aimed to learn how Singapore has established itself as a leading global disputes hub in order to apply some of these lessons to ensure that the UK can continue to “consolidate and thrive as a disputes hub”. Continue reading

The High Court disallows a substantial proportion of a successful defendant’s costs on the basis of an unreasonable refusal to mediate

In Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd & Anor [2020] EWHC 1050 (Comm) (30 April 2020) (Wales), the High Court (the Court) disallowed a substantial part of a successful defendant’s costs as a result of its failure to engage in mediation. This is the latest decision in a number of recent High Court cases where the Court has shown willing to impose cost sanctions on the basis of a party’s refusal to participate in ADR (as discussed in a previous post here). Continue reading

Post Lomax v Lomax: two recent judgments relating to ADR and the courts

We have previously reported on the Court of Appeal judgment in Lomax v Lomax [2019] EWCA Civ 1467. In the Lomax decision, the Court held that it had the power to order an early neutral evaluation (ENE) even where one or more parties did not consent to that course. At the time we observed, among other points, (i) that the Lomax judgment had the potential to prompt an increase in use of ENE by parties (either on their own initiative or further to directions from the judge); and (ii) that the decision was of wider significance in the context of the debate as to whether the courts’ encouragement of ADR should extend into compulsion. Continue reading

Singapore and Fiji ratify the Singapore Convention on Mediated Settlement Agreements taking a significant step towards its entry into force

Yesterday, on 25 February 2020, Singapore and Fiji became the first two countries to deposit at the United Nations Headquarters their instruments of ratification of the Singapore Convention, more formally known as the United Nations Convention on International Settlement Agreements Resulting from Mediation. Singapore and Fiji have taken an important step towards bringing the Singapore Convention closer to coming into force. Continue reading

Article published – ADR reform: one size does not fit all

On 6 March, the Civil Justice Council held a workshop to discuss the recommendations made in its interim report on ADR, which was subject to consultation late last year. The interim report addresses concerns regarding a perceived underuse of ADR within some sections of the civil justice system and suggests a variety of possible corrective measures. The proposals include a power for the court to determine whether costs sanctions should be imposed for unreasonable conduct relating to ADR (such as an unreasonable refusal to mediate) not only at the end of a case, as currently, but during the matter when the decisions regarding ADR are taken.

Jan O’Neill has published a post on Practical Law’s Dispute Resolution blog in which she questions how realistic the suggestion of “midstream” assessment of parties’ conduct relating to ADR would be in practice. She suggests that many of the concerns expressed in the report as to the underuse of ADR are not relevant to many larger, complex claims, and urges the working group to tailor any final recommendations to the specific courts or dispute types for which the evidence suggests they are needed and practicable.

Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).

 

 

Apology legislation passed in Hong Kong – what does it mean for you

On 13 July, Hong Kong’s Legislative Council passed a law (the Apology Law) intended to facilitate the resolution of civil disputes in the territory. The Apology Law, which is expected to be gazetted and come into force shortly, reforms the legal consequences of making any sort of apology (written, oral or by conduct). An apology will not constitute an admission of fault or liability (even if it includes such an admission), nor may it be admissible in evidence to the detriment of the apology maker. This is the case unless the maker of the apology wishes it to be admitted or it falls to be admitted in the usual way through discovery, oral evidence or any equivalent tribunal processes.

Hong Kong is the first jurisdiction in Asia to enact apology legislation and its Apology Law is the broadest enacted to date worldwide. The driver behind it is that apologies may in some circumstances 'unlock' disputes and lead to settlement without recourse to formal legal action. Since parties (and their lawyers and insurers) may be reluctant to do anything that may be construed as an admission of liability, apologies have to date been sparse. The Apology Law seeks to incentivise disputing parties to make apologies, whether in the direct aftermath of an accident or dispute, or further down the line, should the dispute escalate.

The law has far-reaching consequences for anyone involved in contentious civil disputes, whether before the courts or tribunals in Hong Kong. The Apology Law has the scope substantially to change the way insurance, evidence and settlement are approached in civil proceedings and regulatory and disciplinary matters. The scope for ‘tactical’ apologies by counterparties should be borne in mind as set out below.

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