Mixed-mode dispute resolution: China’s Belt and Road is driving change

A trend toward combining alternative dispute resolution processes (typically mediation and arbitration) is gaining traction internationally and is being particularly driven in Asia by the Belt and Road Initiative.

With China at the heart of the Belt and Road, a more consensus-driven approach to dispute resolution, reflecting Asian values and promoting mediation, looks set to thrive. Traditionally, international commercial disputes play out to Western values and norms and have been adversarial in nature.

For some time, mediation has been discussed as a dispute resolution process suitable for Belt and Road disputes. As an adjunct to adjudicative processes like litigation and arbitration, academicsend-users and China’s own court reforms have highlighted the integral role mediation is likely to play as part of a multi-tier process.

2019 developments

Singapore and China started 2019 with a pro-mediation statement of intent. A memorandum of understanding was signed between the Singapore International Mediation Centre (SIMC) and the China Council for the Promotion of International Trade (CCPIT) in Beijing on 24 January. This announced the establishment of an international panel of mediators to handle disputes that may arise from BRI projects. Mediators will be drawn from a pool of dispute resolution specialists in China, Singapore and other countries and regions along the Belt and Road. Both parties plan to develop rules for case management and enforcement for BRI disputes submitted to mediation. As with other institutions and proposed online platforms, negotiation, mediation and – as a last resort – arbitration will be the combination of processes championed by SIMC and CCPIT.

The ICC too has just published mediation guidance for Belt and Road disputes, alongside appropriate clauses from its existing suite. These promote the use of mediation as either a standalone or mixed-mode process with arbitration.

“Belt and Road presents a rare opportunity to rethink how complex multi-party, international disputes are resolved,” said Herbert Smith Freehills’ Justin D’Agostino, chair of the ICC Court’s Belt and Road Commission.

“For centuries, dispute resolution has been anchored to adversarial processes. With the Belt and Road’s Asian nexus, a more consensual, efficient approach may evolve to resolve disputes. ICC has long offered mediation and arbitration services and is well placed to offer mixed-mode dispute resolution along the Belt and Road.”

 

Justin D'Agostino
Justin D'Agostino
Global Head of Dispute Resolution, Hong Kong
+852 21014010
Anita Phillips
Anita Phillips
Professional Support Consultant, Hong Kong
+852 21014184
Briana Young
Briana Young
Professional Support Consultant, Hong Kong
+852 21014214

Herbert Smith Freehills launches latest insights guide: ADR in Asia Pacific – Spotlight on Singapore

 

ADR

As dispute resolution professionals, users, judges, arbitrators and mediators prepare to convene in Singapore for the inaugural event of the Global Pound Conference series, Herbert Smith Freehills sheds light on ADR trends in the city state.

Since the 1990s, Singapore has improved access to ADR. Various schemes and institutions have developed to encourage disputing parties to resolve their differences outside formal legal proceedings (most recently through a novel Arb-Med-Arb procedure). This approach marries well with one of the Global Pound Conference series' primary objectives of understanding what users of dispute resolution want and need in the 21st Century.

In this issue of our Asia Pacific guide, we shine a spotlight on Singapore to summarise that development and dive deeper into its future direction, addressing:

  • ADR in Singapore: developments and trends
  • Interview with Ms Eunice Chua, the Deputy CEO of Singapore International Mediation Centre
  • Med-Arb, Arb-Med and the Arb-Med-Arb protocol
  • Recent trends in governing law and jurisdiction clauses
  • Singapore's landmark global conference on the future of dispute resolution

If you would like an electronic copy of our guide, please download it here. Alternatively if you would like to request a hard copy (while stocks last) please email asia.publications@hsf.com.

For further information about the Global Pound Conference Series, which will span 38 cities across 29 countries, please visit www.globalpoundconference.org and register for a local event. You can register for the Singapore event here.   The series will present corporations (and their in-house counsel) with a unique opportunity to benchmark themselves against peers in terms of how they manage and resolve conflict. 

 

Study by Singapore Academy of Law suggests strong preference for arbitration over mediation

The Singapore Academy of Law (SAL) has published the results of its study on preferences for the choice of governing law and jurisdiction by those involved in cross-border transactions in Singapore and the region (the Study). 

The Study reflects the views of around 500 commercial law practitioners and in-house counsel who have involvement in cross-border transactions. In terms of dispute resolution processes, the key outputs are:

  • 71% of respondents indicated that arbitration was the favoured method of dispute resolution, compared to 24% for litigation and 5% for mediation. Mediation's low score is perhaps surprising and the outcome may reflect the way the Study question was framed, given that mediation is often attempted within the framework of litigation or arbitration and should not be selected as a sole method of dispute resolution,given that it may not reach a determinative outcome.
  • Enforceability of decisions was cited as a key priority by respondents. Given the importance of enforceability in choosing litigation or arbitration, the introduction of the hybrid Arb-Med-Arb protocol by the Singapore International Mediation Centre in partnership with the SIAC may encourage the use of mediation in Singapore in the future. As described in our previous blog post, the combined process can result in a consent award enforceable under the New York Convention 1958.
  • All industry sectors represented by the Study showed a strong preference for arbitration.  Consistent with our own experience, the highest scores were shown in the Construction and Oil & Gas sectors, at 84% and 82% respectively. The highest score for litigation was the Banking and Finance sector at 30%. 

Click here to read more on our Arbitration Notes blog.

Herbert Smith Freehills’ ADR in Asia Pacific Guide available online

We are pleased to launch online our ADR in Asia Pacific Guide, building on a publication we launched last year.  Please click here to download a copy.

While focusing on the use of ADR in Asia Pacific, the guide will assist organisations wherever they operate to deploy ADR more effectively in the resolution of their disputes.

We focus on mediation in Hong Kong and distil the results of an exclusive client survey involving personal interviews and voting via a bespoke HSF App. The outputs of our client research will help organisations benchmark themselves against their peers when assessing their dispute resolution options.  In addition, the guide:

  • summarises seven common ADR processes and their use in Asia Pacific; and
  • contains a practical guide to help you get the most out of mediation (with an emphasis on the procedures in Hong Kong)

Our research in Hong Kong foreshadows an exciting global initiative commencing this year which Herbert Smith Freehills is sponsoring, the Global Pound Conference (GPC) series GPC will canvass thousands of stakeholders worldwide at events in 36 locations over an 18-month period, on their use of ADR and other dispute resolution processes (see www.globalpoundconference.org for more details).

European Mediation and ADR Guide published

The International Institute for Conflict Prevention & Resolution (CPR) has released its new European Mediation & ADR Guide, designed to assist corporates operating in Europe and beyond in taking full advantage of the range of ADR processes available to them.

Herbert Smith Freehills partner and Head of ADR Alexander Oddy led on the production of the Guide, in conjunction with Isabelle Robinet-Muguet of Orange (both members of the Executive Council of CPR's European Advisory Board)

As well as providing a valuable overview of the most widely used ADR processes in Europe, the Guide provides links to an extensive range of additional materials and practical resources for access to more in-depth information.  It will be translated into several languages over the next few months.

 

 

Mediation within arbitration – a new Med-Arb-Med protocol in Singapore

We recently reported (here) on the official launch of the Singapore International Mediation Institute (SIMI) on 5 November 2014.   One particularly interesting feature of the launch was the announcement of a new arbitration-mediation-arbitration (‘Arb-Med-Arb’) protocol (“AMA Protocol“), under which the SIMI will work closely with the Singapore International Arbitration Centre (SIAC) to promote mediation within international arbitration.

The concept of Arb-Med-Arb is not a new one. Various prominent jurisdictions and institutions including the International Centre for Dispute Resolution (ICDR), the International Chamber of Commerce (ICC) and the Hong Kong International Arbitration Centre (HKIAC) both recognize and support the use of mediation as a precursor to arbitration (Med-Arb) or during the arbitral process (Arb-Med-Arb).  However, two key factors set the AMA Protocol apart – the clarity and certainty of the process, and the assurance of institutional support.  The new model AMA Protocol allows a party to commence arbitration under the auspices of the SIAC, and then proceed to mediation under the SIMI.

Our Singapore office examines the new AMA Protocol in this post on our arbitration blog, Arbitration Notes.

 

ADR Practical Guide No.1 : Common ADR processes – a snapshot

Herbert Smith Freehills has launched the first in our series of ADR Practical Guides, designed to provide practical insights into various processes falling under the banner of ADR, with a particular focus on mediation.

The first guide provides a snapshot of some of the more commonly used ADR processes, highlighting the main advantages and disadvantages of each.  The processes covered include:

1.  Mediation
2.  MedArb / ArbMed
3.  Early neutral evaluation
4.  Expert determination
5.  Adjudication
6.  Baseball arbitration

Read ‘Common ADR processes – a snapshot‘.

Mediation in arbitration proceedings – a Hong Kong perspective

The procedures of mediation and arbitration are regularly combined in some jurisdictions, such that an arbitrator assumes the role of mediator part-way through arbitral proceedings in an attempt to settle the dispute early (arb-med).  An alternative formulation is where a mediator, appointed by the parties in the early stages of a dispute, subsequently becomes the arbitrator in the event that the facilitated negotiations fail (med-arb).

Judicial and legislative developments in Hong Kong have prompted parties, counsel and arbitrators to re-evaluate the merits of these procedures, and their place within the framework of international arbitration.  Immediate reactions tend to be coloured by a party’s legal background and cultural experience.  For instance, while arb-med is relatively common in civil law jurisdictions such as Austria and Germany, the procedure is typically viewed with scepticism by common law lawyers. Continue reading for a discussion on the advantages and disadvantages of arb-med. Continue reading

Hong Kong Court of Appeal enforces Chinese arbitral award despite “unusual” arb-med procedure

In a key judgment, the Hong Kong Court of Appeal (the Court) overturned the lower court’s decision and upheld the enforcement of a Chinese arbitral award – despite the fact that the Tribunal engaged in an arb-med procedure which, in Hong Kong, would give rise to the appearance of bias (Gao Haiyan and Xie Heping v Keeneye Holdings and another CACV 79/2011). Continue reading

Hong Kong’s arbitration law expressly provides for arb-med/med-arb

Hong Kong’s Arbitration Ordinance came into force on 1 June 2011.  One of its enhanced features is that, provided the parties consent in writing, an arbitrator sitting in Hong Kong is permitted to mediate a dispute.  In those circumstances, the arbitral proceedings will be stayed pending the mediation.  In addition, the legislation expressly prevents a party from challenging an arbitrator solely because they have engaged in mediation proceedings.

However, in the event that the mediation fails, the Ordinance requires an arbitrator to disclose to all parties any confidential information learned during the mediation which he or she considers to be “material” to the arbitration.  This provision may well serve to discourage parties from engaging in frank and open exchanges during a mediation, in turn reducing its chances of success.  Practitioners would need to advise their clients of this disclosure obligation under Hong Kong’s arbitration law, and to deal with any concerns that are likely to arise as a result. Continue reading