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

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.

 

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. 

 

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.

 

 

Herbert Smith Freehills publishes ADR in Asia Guide

Herbert Smith Freehills’ Hong Kong dispute resolution team has launched its first ADR in Asia Guide, featuring a spotlight on mediation in Hong Kong. In particular, the Guide includes the results of our recent client research on how international corporates use mediation in Hong Kong.

ADR in Asia

If you would like an electronic copy of our Guide, please email asia.publications@hsf.com.

The Guide:

  • summarises seven ADR processes and their use in Asia
  • contains a practical guide to help you get the most out of mediation (with an emphasis on the procedures in Hong Kong)
  • summarises the outputs of our recent client research to enable organisations to benchmark themselves against their peers when assessing their dispute resolution options

Our research involved around 100 clients and contacts being surveyed through direct interviews and through voting via a bespoke iPad app at an interactive event convened on 29 January 2015.  The research comes 5 years exactly since mediation was put at the heart of Hong Kong’s litigation landscape by Practice Direction 31 (PD 31), which effectively introduces a ‘mediation step’ into civil litigation proceedings in Hong Kong.

The research indicates that mediation remains under-utilised in practice, despite being widely supported and recognised as having the potential to resolve disputes in a quick, cheap and confidential way. Many clients see mediation undertaken without any real intention to settle, simply to comply with PD 31 and move on with the litigation. This is a missed opportunity to front-end the settlement of disputes. Whether you litigate, arbitrate, or have never yet been embroiled in a formal dispute, our commercially-focused Guide will assist you to deploy mediation more effectively in the resolution of your disputes.

Read more about our client research in our Hong Kong Dispute Resolution e-bulletin.

 

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’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