Dispute resolution in Asia-Pacific: Parties seek efficient processes and enforceable outcomes

Following our report on the Global Pound Conference series, which brought together over 4000 stakeholders at 28 conferences worldwide, our analysis of the Asia Pacific results reveals different demands in Asia and Oceania.

Six Asia Pacific cities hosted conferences to assess how dispute resolution can be improved: Singapore; Hong Kong; Chandigarh, India; Bangkok, Thailand; Sydney, Australia and Auckland, New Zealand. Each conference addressed the demand side (commercial party perspectives on dispute resolution); the supply side (what advisers and providers are delivering to commercial parties); the key obstacles and challenges; and what needs to be addressed to effect change.

Region-wide, the data highlights that commercial parties want to use mediation and other ADR processes more, either alone or as an adjunct to adversarial proceedings. However, the data shows that the market is not responding adequately. As a result, mediation remains under-utilised, and actual use lags behind positive attitudes to it. Unless parties and their advisors actively take a different course (for example through inserting escalation clauses in contracts, actively proposing mediation at the point of dispute, or by following mandatory mediation protocols), there is likely to remain a perpetuation of the “same old processes” – litigation and arbitration.

Read more analysis of the Asia Pacific results on our Asia Disputes Notes blog here.

Herbert Smith Freehills launches latest Guide to Dispute Resolution in Asia Pacific

Dispute Resolution in AP

Please click here to preview this publication.  To request a copy of the guide, please email asia.publications@hsf.com.


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. 

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Launch of landmark global conference series on the future of dispute resolution

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). 

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Selling Mediation in the East

It is generally accepted that, while the use of mediation is on the rise globally, this trend is significantly more pronounced in the West than in Asia.   While the modern concept of formal mediation has of course been around for longer in the West, and has had more time to take hold, can this alone explain the disparity?  Or does the explanation lie at least partly in how mediation is ‘sold’ ?

Sean Izor, an associate in our Beijing and Hong Kong offices, examines this issue in an article recently published in the Asian Journal on Mediation.   In particular, he seeks to identify a number of broad cultural differences in the way individuals approach disputes generally and suggests that practitioners and proponents of mediation would do well to bear these in mind when seeking to communicate the benefits of mediation to Asian parties.

Read the article ‘Selling Mediation in the East – Is there an Asian Way?’ (© Singapore Mediation Centre. Originally published in [2013]  Asian Journal on Mediation, 1.  Reprinted with permission.)

India: mediation successful in 60% of Delhi court actions

A wide reaching study, spanning 2005-2012 has concluded that 60% of disputes heard in the mediation centres affiliated to the four Dehli courts (Tis Hazari, Karkardooma, Rohini and Dwarka) were resolved.  The statistics for Tis Hazari show that of the 26,608 cases lodged within the period, 26,096 were settled.

The concepts of mediation and conciliation were given official recognition in India by the Arbitration and Conciliation Act 1996 and by the amendment of the Civil Procedure Code (CPC) in 1999. Since then, mediation has grown steadily, first as a recognised adjunct to arbitration. Now judges are quick to recognise mediation as a helpful mechanism for reducing case backlogs and delays, as these statistics demonstrate. Mediation is now a central tenet of India’s principal dispute resolution centres.

Supreme Court of India holds that mediation proceedings are confidential

On 7 January 2011 the Supreme Court of India, in the case of Moti Ram (D) Tr. LRs and Anr. Vs Ashok Kumar and Anr (Civic Appeal No. 1095 of 2008), held that mediation proceedings were confidential in nature, and that only an executed settlement agreement or alternatively a statement that the mediation proceedings were unsuccessful, should be provided to the court by the mediator. Continue reading

India – Delhi Mediation Centre joins Asian Mediation Association

A significant practical step in the development of ADR in India was evidenced in September 2008 by the Delhi Mediation Centre becoming the latest member of the Asian Mediation Association (AMA). This builds on a 2002 amendment to the Indian Civil Procedure Code which attempted to increase the number of mandatory references of litigants by the Indian courts to mediation, conciliation or arbitration proceedings, as well as incentivising such litigants to resolve their differences by refunding any prior court fees paid. Law Commission of India Report 222 dated April 2009 endorsed increased utilisation of the 2002 amendment and emphasised the need for speedy dispensation of justice through mediation and conciliation. Back to top