Hong Kong Mediation Lecture 2022

We are pleased to announce that the annual Hong Kong Mediation Lecture will take place in hybrid format on Wednesday 9th November during Hong Kong Legal Week 2022.

Co-organised with the Hong Kong Department of Justice, keynote speaker, The Honourable Mr Justice Johnson Lam Man-hon, Permanent Judge of the Hong Kong Court of Final Appeal will speak on the topic of “Confidentiality and Privilege in Court-annexed and Court-based Mediations”.

The lecture will be held in a hybrid format. CPD points from the Law Society of Hong Kong and the HKMAAL are being applied for.

For in-person attendees (6pm – 8pm), please join us for a pre-lecture cocktail from 6pm at Herbert Smith Freehills offices, 23F Gloucester Tower, Landmark, Central. Please note that all attendees are required to sign in using LeaveHomeSafe and provide a negative RAT test result within 24 hours of the event. Please note that due to limited capacity, places are available on a first-come, first-served basis.

For online attendees (6:45pm – 8pm), the lecture will be broadcast virtually through Zoom.

Please register here.

For more information, please contact Simon Chapman, Partner, Kathryn Sanger, Partner, or your usual Herbert Smith Freehills contact.

Simon Chapman
Simon Chapman
Partner
+852 93152889
Kathryn Sanger
Kathryn Sanger
Partner
+852 65338669

HSF publishes Disputes in the Technology Industry Q&As for Practical Law (UK)

HSF technology disputes practitioners Andrew Moir, Rachel Lidgate, Martin Hevey, Kate Macmillan, Peter Dalton, Heather Newton and Rachel Montagnon have recently published a Q&A in Practical Law on Disputes in the Technology Industry (see here for pdf and here for subscribers) covering all aspects of disputes in the sector including current and future trends.

In the Q&A, the team gives a high-level overview of

  • typical types of claims in the technology sector,
  • wider economic, regulatory or political factors that make disputes of any kind more or less common in the sector
  • which issues give rise to the most disputes in the sector
  • what proportion of disputes between parties become the subject of dispute resolution proceedings
  • any unusual time limits for starting a claim
  • who the parties to a dispute in this sector typically tend to be
  • the balance in terms of bargaining power and financial circumstances between parties
  • how disputes typically resolved in this sector
    • which courts, arbitral bodies or other organisations commonly deal with disputes
    • what factors are most likely to influence the choice of dispute resolution method
    • what the most commonly used alternative dispute resolution (ADR) methods (adjudication, mediation, ENE, expert determination, dispute boards) are
    • requirements in the sector for a particular type of dispute resolution regime
    • sector-specific procedural rules that apply
    • dispute resolution methods used, costs and funding issues, settlement, judgments and remedies and any other specific dispute resolution issues
    • to what extent do the parties expect to be able to control the procedure and timetable for disputes in the sector
  • interim applications
  • use of experts
  • appeals
  • costs and funding (including third party funding)
  • enforcement of judgments
  • forum shopping
  • trends in the sector
  • class actions
  • future developments that will impact on litigation in this sector

For more information, please contact Andrew Moir, Rachel Lidgate, Martin Hevey, Kate Macmillan, Peter Dalton, Heather Newton, Rachel Montagnon, or your usual Herbert Smith Freehills contact.

Andrew Moir
Andrew Moir
Partner, London
+44 20 7466 2773
Rachel Lidgate
Rachel Lidgate
Partner, London
+44 20 7466 2418
Martin Hevey
Martin Hevey
Senior Associate, London
+44 20 7466 2631
Kate Macmillan
Kate Macmillan
Consultant, London
+44 20 7466 3737
Peter Dalton
Peter Dalton
Senior Associate, London
+44 20 7466 2907
Heather Newton
Heather Newton
Senior Associate, London
+44 20 7466 2984
Rachel Montagnon
Rachel Montagnon
Professional Support Consultant, London
+44 20 7466 2217

ENGLISH COURT CONFIRMS THAT PRE-CONDITIONS TO ARBITRATION ARE AN ISSUE OF ADMISSIBILITY AND NOT JURISDICTION

In NWA & FSA v NVF & others [2021]  EWHC 2666 (Comm) the English High Court has declined to set aside an award on the basis of failure to mediate a dispute before referring it to arbitration.

Consistent with its reasoning in Sierra Leone v SL Mining (see our blogpost on that case here), the English Court was clear that the question of compliance with procedural steps in an arbitration clause goes to the admissibility of a claim rather than to the tribunal’s substantive jurisdiction, and therefore falls to be determined by the arbitral tribunal and not the Court.

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ECUADOR INTRODUCES REGULATIONS TO ITS ARBITRATION AND MEDIATION ACT

After rejoining the ICSID Convention in June 2021, Ecuador has made a further contribution to the growth of international arbitration within its borders. On August 18, 2021, President Guillermo Lasso issued Executive Decree No. 165-2021, introducing the Regulations to the Arbitration and Mediation Act (the “Regulations”).

Ecuador’s Arbitration and Mediation Act was originally enacted in 1997 and subsequently amended in 2015. Certain aspects of the arbitration process remained unregulated by the Arbitration and Mediation Law, and some of its provisions were vague, which caused confusion and conflicting interpretations. The Regulations, which were published in Ecuador’s Official Registry on August 26, 2021, specifically address the aspects of the arbitration process which were not previously regulated and aim to clarify previous ambiguities. In this connection, the First Transitory Provision provides that, following publication in the Official Registry, the Regulations’ procedural rules will apply immediately to every ongoing arbitration.

We discuss below the most relevant provisions that the Regulations introduced.

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ICSID RELEASES REVISED PROPOSED MEDIATION RULES

On 15 June 2021, the International Centre for the Settlement of Investment Disputes released its latest working paper as part of its Rules Amendment Project. In addition to proposing changes to the ICSID Convention and ICSID Additional Facility arbitration and conciliation, as covered in our earlier blog post, Working Paper 5 also refines the proposed new rules for ICSID fact-finding and mediation. The changes to the Mediation Rules between Working Paper 4 and Working Paper 5 have been minimal, and the ICSID Secretariat has expressed a hope that this will be the final iteration of the rules.

To further promote mediation in investor-State arbitration, in July 2021 ICSID also released a Background Paper on Investment Mediation, which provides an overview of mediation in an investor-State context, as well as an Overview of Investment Treaty Clauses on Mediation, which reviews existing treaty mechanisms that address investor-state mediation and other amicable dispute resolution mechanisms.

This blog post provides an overview of how a mediation would be initiated, conducted, and concluded under the proposed Mediation Rules – highlighting any key changes in the latest iteration of the rules and flagging key takeaways from ICSID’s additional publications.

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2021 AMENDMENTS TO THE ICDR ARBITRATION AND MEDIATION RULES: A RESPONSE TO EVOLVING PRACTICE

The International Centre for Dispute Resolution (ICDR) of the American Arbitration Association (AAA) has released its revised Arbitration and Mediation Rules, which came into force on March 1, 2021 (the 2021 ICDR Rules). The 2021 ICDR Rules will apply to any arbitration or mediation commenced after such date unless agreed otherwise.

The Arbitration Rules were last revised in 2014, and the Mediation Rules in 2008. The changes introduced are therefore a comprehensive update, responding to issues that have arisen in both arbitration and mediation over the past decade. They reflect discussions held by the ICDR management and administrative teams, a specific ICDR Committee of practitioners, and feedback from ICDR’s users. Following the trend of recent changes implemented by other major institutions such as the London Court of International Arbitration and the International Chamber of Commerce, the 2021 ICDR Rules include changes relating to third-party funding, joinder and consolidation, data protection, and  the effects of COVID-19 on the arbitral process.

Key takeaways for parties and practitioners

The key changes to be aware of in the 2021 ICDR Rules for parties and practitioners are as follows:

  • The new Arbitration Rules:
    • Permit joinder after the constitution of the tribunal with the consent of the joining party, when the arbitral tribunal considers it appropriate;
    • Allow consolidation when the arbitration involves related parties – as opposed to the more limited “same” parties requirement under the prior rules;
    • Embrace early disposition of issues;
    • Introduce a provision on the disclosure of third-party funding and “undisclosed economic interests;”
    • Acknowledge the use of video, audio, or other electronic means for conducting preliminary matters and final hearings;
    • Require tribunals to discuss cybersecurity, privacy, and data protection with the parties to provide an appropriate level of security and compliance.
  • The new Mediation Rules:
    • Emphasize the importance of party involvement and the obligation of the ICDR to assist the parties in finding an agreeable mediator;
    • Set out best mediation practices by comprehensively outlining how a mediation should proceed;
    • Recognize that all or part of a mediation proceeding may be conducted via video, audio, or other electronic means;
    • Reinforce that it is the responsibility of each party to have present at the mediation a representative with authority to execute a settlement agreement;
    • Allows the parties to request from the ICDR or mediator an attestation that a settlement was reached to assist in enforcing settlement agreements according to the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) or other applicable law.

The most significant of these changes are discussed in more detail below.

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MEDIATION IN ARBITRATION: INSIGHTS FROM THE LONDON CHAMBER OF ARBITRATION AND MEDIATION/ HERBERT SMITH FREEHILLS SURVEY

The Herbert Smith Freehills arbitration team has partnered with the London Chamber of Arbitration and Mediation to conduct a snapshot survey of more than 50 mediators, exploring their experience of mediation in arbitration in 2019 and 2020. The results of the survey shed light on current take-up of mediation in arbitration, the stages of the dispute at which these mediations are most likely to occur, claim values, and settlement rates. In this blog post we discuss and reflect on mediator responses to the survey, examining what the survey results reveal about the current trends in mediation in international arbitration. You can also watch a short video summarising the key findings of our research here.

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LCAM/HSF MEDIATION IN ARBITRATION SURVEY INITIAL RESULTS

The Mediation in Arbitration Survey is now closed and we are very grateful to the more than 50 mediators who have shared their experience with Herbert Smith Freehills and the London Chamber of Arbitration and Mediation.

The survey covered the current take-up of mediation in international arbitration, the stages of the dispute at which such mediations most commonly occur, claim values and settlement rates.

We are delighted to share an initial video snapshot of the Mediation in Arbitration Survey results, which can be viewed here.

We look forward to reporting in more detail on the results of the survey in due course.

For more information, please contact Craig Tevendale, Partner, Chris Parker, Partner, Rebecca Warder, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.

Craig Tevendale
Craig Tevendale
Partner
+44 20 7466 2445
Chris Parker
Chris Parker
Partner
+44 20 7466 2767
Rebecca Warder
Rebecca Warder
Professional Support Lawyer
+44 20 7466 3418

LCAM/HSF MEDIATION IN ARBITRATION SURVEY

Herbert Smith Freehills is joining with the London Chamber of Arbitration and Mediation to conduct a new Mediation in Arbitration Survey.

The survey should provide a valuable opportunity to ascertain the current take-up of mediation in international arbitration. The survey also aims to identify the stages of the dispute at which such mediations most commonly occur, their claim values and settlement rates.

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