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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Enforcing dispute adjudication board decisions

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.

 

ADR in Asia – overview of key ADR processes

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.

That summary and Dispute Resolution Wheel can now be downloaded separately, here.   If you would like a copy of our full Guide, please email asia.publications@hsf.com.

 

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.

 

Judicial support for dispute adjudication boards

Three separate court decisions in different jurisdictions in recent months have given support to dispute adjudication boards (DABs) as a form of dispute resolution and, more generally, the enforcability of contractual dispute resolution clauses.

DABs, which often comprise a panel of three members, provide a decision on a dispute which is binding pending any subsequent determination by a court or arbitral tribunal should one of the parties pursue litigation or arbitration. In this sense they are similar to adjudicators’ decisions. Commonly seen in international standard form contracts in the construction and infrastructure industries,  clauses requiring disputes to be referred to a DAB before court or arbitration are intended to keep a long term project on track by providing quick resolution to disputes and avoiding disruption to cashflow  – applying a ‘pay now, argue later’ approach.

Two decisions in England and Switzerland last year both considered the provisions in the FIDIC suite of contracts (used extensively in the construction industry) that require referral of disputes to a DAB.   In both cases, the courts held that the referral to a DAB was mandatory, with only limited exceptions  – rejecting arguments that the parties could opt out of the process once the dispute had arisen and refer the dispute direct to arbitration or court proceedings (although, on the facts in the Swiss case, the court considered that an exception based on principles of good faith applied).    Michael Mendelblat of our Construction team comments on the Swiss and English decisions below.

Shortly after those judgments, in an important decision in an arbitration context, the Singapore Court of Appeal upheld an interim award made by an arbitral tribunal giving effect to an obligation to promptly comply with a DAB decision. Our arbitration team comments on this Singapore decision on our Arbitration Notes blog here.

Underlying all three decisions is the view that parties should be held to their bargain where they have clearly expressed their intention to resort  first to a particular form of dispute resolution (in this case DABs) before escalating the dispute to court or arbitration.

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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.

 

New Singapore mediation institute launched

On 5 November,  the Singapore International Mediation Institute (SIMI) was officially launched by Singapore’s Senior Minister for Law and Education, who described mediation as the “third jewel” in the crown of Singapore’s legal services landscape, alongside arbitration and international litigation.

SIMI, which has a partnership relationship with the International Mediation Institute (IMI), was founded by and is housed at the National University of Singapore Faculty of Law.  It is the fruition of a recommendation by the International Commercial Mediation Working Group, appointed by Chief Justice Sundaresh Menon and Singapore’s Ministry of Law.

As a professional standards body, SIMI will not itself conduct mediation sessions but will provide users with tools to make basic decisions on using mediation and choosing a suitable mediator. More details on SIMI’s remit can be found here.

 

 

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.)

Challenges to the enforcement of Dispute Board decisions in Asia

The use of Dispute Boards is becoming increasingly common on large and complex projects across the Asia Pacific region. In many cases, Dispute Boards have provided an effective means for parties to obtain interim decisions on disputes pending final resolution by arbitration or litigation. Unfortunately, however, enforcement of a Dispute Board determination is not always straightforward. This should be addressed through careful drafting and, in particular, by vesting an arbitral tribunal with jurisdiction to address in an expedited manner any failure to comply with a Dispute Board decision.  We consider some of the difficulties which may arise with particular reference to a recent Singapore case. Please click here to read more.

Singapore Mediation Centre announces new dispute resolution service

A quick and cheap dispute resolution service was announced on 2 May 2012 by the Singapore Mediation Centre (SMC). The SMC is a non-profit organisation that provides mediation and other ADR services. Under the new arrangements, parties who are unable to settle disputes but are unwilling to foot the significant legal costs of court/arbitration proceedings can opt for Neutral Evaluation. An impartial third party will deliver a legally binding decision based on the merits of the case in a confidential process. The procedure is quick – a decision can be reached in a month or less. The parties will be required to pay the neutral’s professional fees and an administrative fee ranging from SD$700 to SD$2,000. In comparison, SMC’s current mediation fee starts at SD$900 per party per day, with fees varying depending on the size of the claim.

The SMC’s current panel of neutrals includes Senior Counsel, former Supreme Court judges, and a former judicial commissioner.

Compared to litigation or arbitration, early evaluation offers parties greater flexibility and autonomy, much like mediation. However, unlike mediation and most forms of early neutral evaluation, the SMC’s neutral evaluation service results in a binding decision, and this renders if relatively unusual.