Brick Court Mediators In Asia

This week Geoff Sharp was appointed one of a handful of Senior International Mediators to the new Mainland China – Hong Kong Mediation Center.

Being the first joint mediation center in the region set up by two major mediation institutions in Mainland China and Hong Kong, the Center aims to provide an effective platform for resolving cross-border commercial disputes between Mainland China and Hong Kong, in particular with China’s “Belt and Road” initiative.
The Center is a joint venture between the China Chamber of International Commerce and the Hong Kong Mediation Centre, with the vigorous support of the Department of Justice.
The Belt and Road inititive together with the National 13th Five-Year Plan means cross-border trade is set to increase drastically and commercial disputes are expected to follow.

 

Mediation in Singapore

Singapore Guidemediation-in-singapore-dataLast week Thomson Reuters launched “Mediation in Singapore: A Practical Guide”  highlighting the growth of mediation in Singapore.

The publication provides an overview of both the development and current practice of mediation in Singapore. It includes discussions on aspects of mediation encompassing the psychological, cultural and legal aspects of the mediation process: how parties choose a mediator, mediation agreements, enforcement of mediation settlements, accreditation of mediators, mediation in family disputes, divorce, family estate disputes, and many other topics.

Editors include BCC mediators’ good friend and local commercial mediator George Lim S.C. and CEDR’s man in Asia, Danny McFadden.

Other contributors include well known Singaporeans in mediation circles; mediation academic from the National University of Singapore, Associate Professor Joel Lee, Gloria Lim from the Ministry of Law, Eunice Chua from Singapore International Mediation Centre, and Loong Seng Onn and Deborah Koh from Singapore Mediation Centre. Purchase information

Well done to all involved.

BCC mediators are active in Asia and a number belong to the invitation only panel of the Singapore International Mediation Centre and are available for mediations in Singapore.

Clever Thinking Out of Dubai

Dubai, February 2015: DIFC Courts Practice Direction No. 2 of 2015 – parties can now choose to refer their DIFC money judgments for enforcement through the DIFC-LCIA Arbitration Centre, effectively converting their judgement to an arbitral award.

Having done that, the arbitration award should be enforceable in all New York Convention countries thereby avoiding limitations of state court judgments that they are not normally enforceable outside of the home jurisdiction absent the usual and limited reciprocal enforcement mechanisms.

To some extent this mirrors the efforts by some in the mediation community, including the IBA, to find a mechanism to turn a cross border mediated settlement into an arbitral award which would then be enforceable internationally under the New York Convention.

For more, see two short Kluwer articles The Handbrake on Global Mediation and The Race towards a New York Convention for Cross-border Mediated Settlement Agreements: the Fable of the Tortoise and the Hare Revisited?

This lack of any coherent method of enforcement is widely seen as a major impediment to further globalisation of mediation, the argument being how can we expect parties involved in large international commercial disputes to embrace mediation if there is a risk that any outcome might be, to all intents and purposes, unenforceable.

DIFC’s innovative Practice Direction issued in February and subject of much discussion since late 2014, is the first of its kind globally – it offers parties the advantages of both litigation and arbitration since it allows the DIFC-LCIA Arbitration Centre to provide an additional remedy to the judgment creditor if the parties choose to submit any disputes they may have about the payment of money judgments to arbitration under the auspices of the DIFC-LCIA Arbitration Centre. In this way the judgment creditor obtains an arbitral award for their unpaid money judgment that can be enforced in the 150 plus New York Convention countries providing greater enforcement internationally.

As Michael Hwang, Chief Justice of the DIFC Courts, says

 we have developed an important tool to synthesize litigation and arbitration by giving concurrent remedies for enforcement and thereby resolve one of the great problems of international litigation

DIFC Courts Practice Direction No. 2 of 2015 – Referral of Judgment Payment Disputes to Arbitration

DIFC Courts – Chief Justice’s Explanatory Lecture on Referral of Judgment Payment Disputes to Arbitration – November 2014

International Mediation – A Comparative Table of Institutional Mediation Rules

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In the world of international mediation, global providers such as ICC, WIPO and AAA/ICDR dominate the landscape together with various more regionally based institutions such as HKIAC, SMC and CEDR.

Brick Court mediators belong to a number of these organisations’ panels including, the World Intellectual Property Organisation , CEDR, Singapore Mediation Centre and the new Singapore International Mediation Centre – and while the International Chamber of Commerce does not retain a mediation panel, Brick Court mediators have historically been selected as mediators for ICC matters.

Of course, parties who choose to resolve cross-border disputes by way of mediation are free to develop their own bespoke rules of engagement as they might in their domestic mediations via a comprehensive mediation agreement (ad hoc mediation) – however, and although there are cost implications, parties to international mediations usually perceive real benefits in adopting a tried and true process administered by a respected and often global ADR provider (administered mediation).

Many parties arrive at the door of their chosen ADR provider because their contract, about which they are now in dispute, contains a dispute resolution clause containing an agreed dispute process and names a particular institution to administer it. These clauses are well known, for instance the standard ICC multitiered clause requiring the parties to refer the dispute to the ICC mediation rules and if it does not settle, to ICC arbitration. Such clauses are inserted into thousands of contracts all around the world.

It is because of the complexity that often accompanies cross-border commercial disputes – usually of higher value and involving more participants in more places and time zones than their domestic counterparts as well as almost always involving cultural and language differences – that institutional administrative support is seen as a vital ingredient to international mediations.

This usually comes in the form of comprehensive case management which, in the case of the best institutions, does not stop when the case is transferred to the appointed neutral.

Institutions also tend to play an important role in the selection of the mediator, especially when the parties disagree over the appropriate person or, more usually, when they simply do not know how to find a suitably qualified neutral.

And there is no doubt that these global institutions are in competition with 2014 seeing a number of ADR providers enhancing their mediation rules to make them more relevant to business and more attractive to users. All of ICC, WIPO, ICDR and CEDR have made significant updates to their mediation rules this year, the highest profile being ICC’s ‘world tour’ taking its new rules on the road where they were unveiled to much applause in the great capitals of the world from Paris to Singapore to New York and Dubai and developing mediation markets including Brazil, Panama, Turkey São Paulo and the Philippines and translated into multiple languages for use in hundreds of countries.

So how do these rules shape up in the important areas of mediator appointment, process, mediator recommendations and decisions, confidentiality, parallel arbitration/litigation, costs and fees?

This Comparative Table looks at the recently updated mediation rules of:

  1. International Chamber of Commerce administered by the International Centre for ADR (ICC)
  2. World Intellectual Property Organisation (WIPO)
  3. American Arbitration Association’s International Centre for Dispute Resolution (ICDR)
  4. Singapore Mediation Centre (SMC)

Mediation in Asia

ADR-in-Asia

Herbert Smith Freehills’ Hong Kong office has launched its first ADR in Asia Guide, with emphasis on mediation in Hong Kong. Through direct interviews captured in the Guide and anonymous voting via a bespoke HSF iPad app at the Guide launch, they have surveyed around 100 international corporates on their use of mediation in Hong Kong.

The full report is a good read and if you want it you will need to make a request to HSF at asia.publications@hsf.com

In the meantime, key findings include;

  1. 43% of users who voted via the iPad app regard cost and time savings as the greatest benefit of mediation, followed by the range of outcomes – some not possible through the courts.
  2. Organisations defer to their external lawyers when it comes to considering mediation, when and how to deploy it, and who to appoint as a mediator. This places considerable responsibility on the legal advisor as a stakeholder to mediation success.
  3. The clients surveyed and those who voted via the iPad app, want a mediator who commands the respect of the parties and has gravitas. 47% of those who voted through the iPad app said they relied on recommendations from contacts in the market and 38% deferred to the advice of their external lawyers.
  4. A number of those surveyed noted that evaluative mediators often added more value as they would robustly test the counterparty’s case. Several found that a purely facilitative mediator was too passive and did not gain the respect of the parties.
  5. 50% of the clients interviewed and 56% of those who voted via the iPad app said the most important aspect of mediation was the mindset of the parties. 18% of those voting via the iPad app said timing was the second most important. An early mediation, forged on too little information, is less likely to succeed. A mediation very late in the day occurs when significant costs (eg of discovery, witness statements, trial preparation) have already been incurred.

HSF comments;

“Our research highlights that, when undertaken meaningfully, and at the optimum time, mediation forces everyone into an earlier appraisal of their case. Those surveyed generally said that around 50% of their mediations settled (which accords broadly with market trends for commercial disputes). Those which failed were very often helpful however – in gaining intelligence, promoting engagement with the case, narrowing the issues, or assessing the approach of the counterparty and their external lawyers”