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.
Our updated Guide to Dispute Resolution in Asia Pacific aims to provide answers to some of the basic questions a party unfamiliar with a particular jurisdiction will wish to ask when facing the prospect of having to engage in a dispute resolution process in that jurisdiction (including at the stage of negotiating contracts, when deciding on the choice of law and whether to include jurisdiction or arbitration clauses in favour of a particular jurisdiction).
Amongst the range of topics addressed in the Guide, we asked local counsel whether parties to litigation or arbitration are required to consider or submit to ADR procedures before or during proceedings. We will feature the responses of the various jurisdictions in upcoming posts and cover our first five jurisdictions (Australia, Bangladesh, China, Hong Kong and India) below.
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
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.
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).
Herbert Smith Freehills is pleased to announce the launch of The Global Pound Conference (GPC) Series 2016-17.
The aim of this ambitious worldwide conference series is to build a global conversation about the current landscape of civil and commercial dispute resolution and how dispute resolution tools and institutions should respond to the needs of 21st century business. In particular, it aims to gather standardised and actionable data on what users of dispute resolution mechanisms need and want and whether those needs are being met.
Over 25 countries worldwide have already committed to holding a GPC event, with more being added. The launch will take place at a two-day conference in Singapore on 17-18 March 2016 and the last event is scheduled to be held in London in July 2017. Other cities will include Hong Kong, Paris, Dubai, Madrid, Sydney, New York and Frankfurt/Berlin.
The Series, which is being led by the International Mediation Institute (IMI), is being sponsored by Herbert Smith Freehills as well as other global partners: Shell, AkzoNobel, the Beijing Arbitration Commission (BAC), JAMS, and the International Centre for Dispute Resolution (ICDR).
A recent Hong Kong judgment has added to the growing body of case law illustrating courts’ intolerance of litigants who refuse to engage with ADR. The decision will be of interest to litigants not just in Hong Kong but in other jurisdictions (including England) where similar procedural rules allow a court to penalise a party whose refusal to mediate is held to have been unreasonable: Wu Yim Kwong Kingwind v Manhood Development (24/07/2015, DCCJ 3839/2012).
Of particular interest are the court’s findings that the successful defendant’s refusal to mediate could not be justified by:
- the fact that the claim was for possession of real property, rather than a monetary claim. The court refused to accept that this meant the claim was not susceptible to negotiation at all; or
- the other party’s uncooperative attitude in the proceedings more generally and the fact that it had not instigated settlement negotiations itself. Aside from the fact that bilateral settlement negotiations are not to be equated with more structured ADR procedures like mediation, the court noted that ‘one must not assume that the process of mediation would not bring about changes in attitudes’. This echoes the English High Court’s recent warning that litigants should not consider themselves justified in dismissing mediation as futile purely on the basis of the stance adopted by their opponent up to that point – ‘tactical positioning should not be too easily labelled as intransigence’.
Read our Hong Kong office’s briefing on the decision here.
We reported earlier this year on a spate of recent court decisions in different jurisdictions giving support for the use of dispute adjudication boards (DABs). DABs can provide an effective means for parties to obtain interim binding decisions on disputes pending any final resolution by arbitration or litigation – applying a ‘pay now, argue later’ approach designed to keep long term projects on track and avoid disruption to cashflow.
However, enforcing DAB decisions is not always straightforward, as highlighted in the recent decision of the Singapore Court of Appeal in PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation (which is likely to be influential in other jurisdictions). It now appears that the way should be clear for the contractor in that case to enforce the DAB's decision but it has taken him nearly seven years to reach this point. What lessons can be drawn from this saga? In our recent ebulletin, Mark Lloyd-Williams, Ann Levin and David Nitek, Partners in our London office, explore the details of the case and the salient take-away points.
The third article from our recently published ADR in Asia Guide is now available – Client Perspectives on Mediation in Hong Kong.
We have sought the views of numerous clients from a broad range of sectors including banking, insurance, manufacturing, investment funds, accountancy, leisure and energy on their use of mediation and other ADR processes in Hong Kong over the past five years. In particular, they shed light on the impact of Practice Direction 31 in Hong Kong. This research provides a valuable and rare insight into how multinationals are using ADR in Hong Kong and across Asia. Please contact the authors, or your regular Herbert Smith Freehills contact, if you would like more information.
If you would like a copy of our full ADR in Asia Guide, please email firstname.lastname@example.org.
We recently published the first article from our recent ADR in Asia Guide, summarising the main ADR processes and their use across Asia. The second article from the Guide is also now available – a practical guide to mediation in Hong Kong.
It is five years since the Civil Justice Reform put mediation at the heart of Hong Kong’s dispute resolution landscape. Yet it remains a relatively under-used mechanism for resolving disputes. This guide explains what mediation is, why it works, and how and when best to use it. It contains practical advice on mediator selection, mediation preparation, what to expect from the mediation day, and the client’s role in it. Whilst we focus on the rules and procedures relevant to mediating in Hong Kong, much of the article is of general application and assistance, regardless of the jurisdiction in which you are contemplating mediation.
If you would like a copy of our full ADR in Asia Guide, please email email@example.com.
We previously reported the publication of our ADR in Asia Guide. As well as distilling the results of our client survey on the use of mediation in Hong Kong, the Guide contains a summary of the main ADR processes used across Asia and includes our Dispute Resolution Wheel, explaining at a glance the characteristics of the various dispute resolution processes you may encounter in Asia.