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.

In Asia the data revealed a clear desire for enhanced regulation of mediation compared to Oceania. At first blush, this could be said to be rooted in civil versus common law traditions. But only one of the Asian countries to host a GPC event, Thailand, has a civil-law system. The reason appears to be more complex: enhanced regulation, particularly around enforcement, would lend credibility to mediation in Asia as a viable alternative to litigation or arbitration. This is particularly so in the context of commercial cross-border disputes. UNCITRAL’s proposed New York-style Convention on the mutual recognition and enforcement of mediation settlement agreements is likely to be applauded in Asia and may hail an inflection point for the use of mediation.

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New dispute resolution rules for foreign investors in South Africa

South Africa’s draft regulations for investor-state mediation require refinement to work effectively with international arbitration.

Interested parties have until 28 February 2017 to comment on draft Regulations on Mediation Rules (Regulations) published by South Africa’s Department of Trade and Industry (DTI) on 30 December 2016, under the Protection of Investment Act, 2015 (Act).

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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).

Pivotal to Herbert Smith Freehills' pre-eminent disputes practice is a deep understanding of the importance of working with our clients to assess how they can best make use of the various dispute resolution mechanisms available to them.  We have therefore long been at the forefront of efforts to explore what corporates and other organisations actually need from dispute resolution processs and how the existing mechanisms can be improved to meet those needs.  In particular, our award-winning alternative dispute resolution (ADR) practice has undertaken extensive client research studies into how corporates develop strategies for using ADR and we were the lead sponsors of the pilot event for the GPC series, held in London last year. 

We are therefore proud to be the Global Platinum Sponsor of the GPC series.   Alexander Oddy, Partner and member of the GPC Central Organising Group said:

 "The GPC Series is a really exciting and unique opportunity for all stakeholders in the dispute resolution community to shape the way we do things in the 21st Century. It is a chance to understand what corporates and other organisations really need, to share ideas and learning and develop new processes that are fit for purpose.

"What we have today is a relatively developed set of dispute resolution processes but we need to understand how we can use those more effectively in combination and in culturally sensitive ways in the future."

Why the 'Pound Conference' Series?

The original Pound Conference, held in the USA in 1976 (and named in honour of Roscoe Pound, the reforming Dean of Harvard Law School in the 1920s and 30s), was the event widely credited as the stimulus for the development of the range of ADR processes used today. The new Global Pound Conference series is intended to be as ground-breaking and important for corporate dispute resolution as the 1976 conference was.  

Who will attend the GPC events?

Major stakeholders in dispute resolution will attend the GPC Series including businesses, lawyers, chambers of commerce, academics, judges, arbitrators, mediators, policy makers, government officials and others. They will collaborate at each of the conferences around the world to discuss how existing tools and techniques available in dispute resolution are working in practice. They will also stimulate new ideas and generate actionable data on the dispute resolution needs of corporates and other organisations, both domestically and internationally.

How will the GPC gather data? 

The events worldwide will share a common technology platform to enable all participants to vote on standardised core questions about the current and future dispute resolution landscape. The results of the voting for each question will be available immediately to delegates at each event, for analysis and discussion.

What will be the output of the GPC? 

The GPC Series will culminate in a report at the end of 2017, interpreting the data gathered globally to help shape how dispute resolution will be conducted for years to come. The resulting data from all of the events will be publicly available to anyone wishing to research stakeholder views on dispute resolution.  The data collected at individual conferences will be published following each event and we will be providing periodic updates on this blog throughout the 18 month period.

How can I get involved in the GPC?

The GPC gives all those interested in civil and commercial dispute resolution a say in how dispute resolution should evolve. We invite you to participate in this exciting project by attending a GPC event near you over the next 18 months.   The dedicated website www.globalpoundconference.org contains full information about the GPC, the planned events and how to get involved.

Click here​ to watch a brief video explaining the benefits of attend​ing the GPC Series.

Singapore International Mediation Centre is launched, offering parties an “Arb-Med-Arb” process in partnership with SIAC

The Singapore International Mediation Centre (SIMC) was officially launched on 5 November 2014. Set up following the recommendations of a Working Group chaired by Edwin Glasgow CBE QC and George Lim SC, the SIMC will supplement the array of international dispute resolution options available in Singapore. In particular, the SIMC will work closely with the Singapore International Arbitration Centre (SIAC) to promote mediation within international arbitration through a new ‘Arb-Med-Arb’ protocol (“AMA Protocol“).  

Key features and procedure of the Arb-Med-Arb Protocol

The new model AMA Protocol allows a party to commence arbitration under the auspices of the SIAC, and then proceed to mediation under the SIMC. In practice, parties will, as they would in a regular arbitration, commence proceedings under the AMA Protocol by filing with the Registrar of the SIAC a Notice of Arbitration. The Registrar of the SIAC will inform SIMC of the arbitration within four working days from its commencement (or, if parties had not adopted the AMA Protocol at the outset, from the agreement of the parties to refer to their dispute to mediation under the AMA Protocol). After the filing of the Response to the Notice of Arbitration, and the subsequent constitution of the Tribunal, the Tribunal will stay the arbitration for mediation at SIMC. Upon receipt of the case file from the SIAC, the SIMC will fix a date for the commencement of mediation at SIMC (“Mediation Commencement Date“), which will be conducted under the SIMC Mediation Rules. Unless the Registrar of SIAC in consultation with the SIMC extends the time, the mediation shall be completed within eight weeks of the Mediation Commencement Date.

Under the AMA Protocol, the arbitrator(s) and the mediator(s) will be separately and independently appointed by SIAC and SIMC respectively, under the applicable arbitration rules and mediation rules of eac-h Centre. To ensure impartiality of both processes, the arbitrator(s) and mediator(s) will usually be different individuals, unless otherwise agreed by the parties. This represents a departure from the traditional understanding in Asia of the arb-med process in which arbitration and mediation proceedings are conducted by the same person.

It is also worth noting that all mediations conducted under the rules and auspices of the SIMC (which would include mediations under the AMA Protocol) are private, confidential, and without prejudice, unless otherwise agreed by the parties.

If the mediation is successful, the settlement is taken back to the tribunal to be recorded in the form of a consent award. A consent award is generally accepted as an arbitral award and, subject to any local legislation and/or requirements, is generally enforceable in the approximately 150 New York Convention member states. The non-justiciable elements of any mediated settlement (for example, settled disputes that fall outside the scope of the arbitration agreement and hence the tribunal’s jurisdiction) would need to be recorded in a separate settlement agreement (which would not be enforceable under the New York Convention). Parties who cannot settle their disputes through mediation may continue with the arbitration proceedings.

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ICC publishes in-house guide on effective management of arbitration

Practitioners and arbitral institutions alike are constantly looking for ways to smooth and improve the arbitral process. One of the latest contribution to this effort is a June 2014 guide from the International Chamber of Commerce (ICC) entitled “Effective Management of Arbitration: A Guide for In-House Counsel and Other Party Representatives” (the Guide).

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The ICDR amends its Mediation and Arbitration Rules: tackling some familiar issues and providing some novel solutions

The International Centre for Dispute Resolution (the ICDR), the international division of the American Arbitration Association has released a new version of its Mediation Rules and its Arbitration Rules (the Rules), effective 1 May 2014.

Many of the changes concern issues which have been the focus of many of the recent institutional rule changes – reducing the time and costs involved in resolving a dispute pursuant to the Rules, dealing with multi-party and multi-contract issues, and providing for emergency measures of protection before constitution of the tribunal. However, the revised Rules also contain some novel aspects. In particular:

  • The adoption of the “international” approach to document production in arbitration into the Rules themselves and confirmation that depositions, interrogatories and other US “discovery” procedures are “generally not appropriate” in an ICDR arbitration (Article 21);
  • Provision for joinder and the appointment of a “consolidation arbitrator” to determine whether multiple arbitrations should be consolidated;
  • An express description of the ICDR list procedure at Article 12(6) for the appointment of arbitrators (barring party agreement to an alternative method); and
  • Express inclusion of a default position on the question of privilege in international arbitration, adopting a highest standard of protection test (Article 22).

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JCAA introduces a new set of arbitration rules

The Japan Commercial Arbitration Association (JCAA) has introduced an amended version of its Commercial Arbitration Rules (the New Rules). The New Rules, which contain comprehensive amendments, came into force on 1 February 2014, following a consultation period. They will apply to all arbitrations initiated on or after that date. The changes are intended by the JCAA to update the rules in line with recent trends in the amendment of arbitration rules (such as the 2010 Amendments to the UNCITRAL Arbitration Rules). The changes largely achieve this aim, addressing current issues in international arbitration such as multi-party arbitration, emergency arbitrators and interim relief.

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