Dispute Resolution doing business in China

Rapid change has taken place in China since 1978 when Deng Xiao Ping led plans to re-establish a judiciary and a legal system. Since then, there has been a systematic attempt to legislate in all areas and to create and promote a judiciary and legal profession – now 150,000 strong – for the country’s population of 1.3bn.

What can a foreign party expect in relation to dispute resolution when doing business in China? If a dispute arises, negotiation is the best initial method of resolution. Most business contracts in China will include a clause requiring negotiation before other dispute settlement mechanisms are pursued. Negotiation might require attempts to enlist the help of local government officials by emphasising the importance of the foreign company’s investment.

If negotiation fails, it is arbitration that has for many years been the preferred method of resolution for foreign-related commercial disputes in China. Arbitrators have, at least until recently, been more experienced and better qualified in the subject matter than judges, and procedures have been more flexible and predictable. Arbitration also has the advantage of finality, in that awards are not subject to appeal whereas court rulings may result in a lengthy appeal process. Continue reading Dispute Resolution doing business in China

Mediation in civil and commercial matters: European Parliament endorses new rules

Mediation in civil and commercial matters European Parliament endorses new rules

A Directive on certain aspects of mediation in civil and commercial matters was adopted today 23 April 2008. The purpose of the Directive is to facilitate access to cross-border dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a sound relationship between mediation and judicial proceedings. The Directive is one of the follow-up actions to the Green Paper on alternative dispute resolution presented by the Commission in 2002, the other being the European Code of Conduct for Mediators established by a group of stakeholders with the assistance of the Commission and launched in July 2004.

Welcoming the adoption of this Directive, Vice-President Jacques Barrot said: “This Directive fulfils the political objective established in October 1999 by the European Council of Tampere, which – in the context of encouraging better access to justice in Europe – called for the creation of alternative, extrajudicial procedures for dispute resolution in the Member States. Mediation can provide cost-effective and quick extrajudicial resolution of disputes in civil and commercial matters through processes tailored to the needs of the parties. Agreements resulting from mediation are more likely to be complied with voluntarily and help preserve an amicable and sustainable relationship between the parties.

The Commission proposed the Directive in October 2004 (IP/04/1288). The Directive facilitates recourse to mediation by strengthening the legal guarantees accompanying it, thus giving real added value to citizens and businesses in the European Union. The key components of the Directive are as follows:

The Directive obliges Member States to encourage the training of mediators and the development of, and adherence to, voluntary codes of conduct and other effective quality control mechanisms concerning the provision of mediation services.

The Directive gives every Judge in the Community, at any stage of the proceedings, the right to suggest that the parties attend an information meeting on mediation and, if the Judge deems it appropriate, to invite the parties to have recourse to mediation.

The Directive enables parties to give an agreement concluded following mediation a status similar to that of a Court judgment by rendering it enforceable. This can be achieved, for example, by way of judicial approval or notarial certification, thereby allowing such agreements to be enforceable in the Member States under existing Community rules. Continue reading Mediation in civil and commercial matters: European Parliament endorses new rules

3rd annual ICC International Commercial Mediation Competition awards unveiled

The Brazilian team prevailed as a winner of the 3rd annual ICC International Commercial Mediation Competition. A team from the FGV Sao Paolo Law School walked away with this year’s top award for the 3rd annual ICC International Commercial Mediation Competition 18 February.

The award followed four days of intense competition , as the team from Sao Paolo and the University of California Hastings College of Law were pitted against each other to mediate a complex business deal. The Brazilian team, made up of Gisela Ferreira Mation, Pedro Fida Fenelon Tibucheski, and Daniel Tabel Luis received a trophy, EUR 2 000 in prize money, an internship at ICC’s ADR Secretariat, and a set of legal reference books.

Every participant in this year’s competition received a year’s subscription to the ICC International Court of Arbitration Bulletin. The awards ceremony was officiated by Guy Sebban, ICC Secretary General, Jason Fry, Secretary General of the ICC International Court of Arbitration and ICC Dispute Resolution Services Director and Pierre Tercier, Chairman of the ICC International Court of Arbitration. Continue reading 3rd annual ICC International Commercial Mediation Competition awards unveiled

Hong Kong International Arbitration Centre HKIAC

With about 350 arbitration cases / year (mainly in construction matters) Hong Kong International Arbitration Centre (HKIAC) is one of the most actives dispute resolution centres of the world. Main areas of activity of the Hong Kong International Arbitration Centre HKIAC are:

Negotiation: The most common form of dispute resolution is negotiation. By this means alone nearly all disputes are solved. If negotiations fail, it is necessary to seek the assistance of a neutral third party or several neutral third parties to facilitate a solution.

Mr. Christopher To, Secretary General of Hong Kong International Arbitration Centre HKIAC, video:

Conciliation and Mediation: Conciliation and Mediation are often terms used interchangeably and they are together referred to as mediation. Both involve the appointment of a third party to assist disputing parties to reach a settlement of their difference. The mediator is not given any power to impose a settlement. His function is to try to break any impasse and encourage the parties to reach an amicable settlement. In commercial disputes an impasse most often arises from either a lack of trust in the integrity of the other party or a genuine good faith difference of opinion on the facts underlying the dispute or on the probable outcome of the case were it to go to court. The mediator may act as a shuttle diplomat acting as a channel for communication filtering out the emotional elements and allowing the parties to focus on the underlying objectives. He will encourage the parties to reach an agreement themselves as opposed to having it imposed upon them. Continue reading Hong Kong International Arbitration Centre HKIAC

e-Justice Centre, ODR in Second Life

e-Justice Centre is an arbitration centre that belongs to the Portuguese Ministry of Justice and was developed in collaboration with the Department of Communication and Art of the University of Aveiro and the Faculty of Law of the Lisbon New University. This centre provides mediation and arbitration services for all avatars in Second Life in the resolution of disputes resulting from consumer relations or any other contract-based relations signed between parties.

The most interesting issue is that e-Justice Centre, is a mediation and arbitration centre, in the 3D virtual world of Second Life.

Picture of the virtual ODR centre e-Justice:

e-Justice Centre, ODR in Second Life
The centre provides mediation and arbitration services for avatars resident in Second Life, permitting the opportunity to decide on conflicts deriving from consumer relations or any contracts signed between parties. Users of the centre can opt to resolve submitted disputes through the application of Portuguese law or through the use of impartiality criteria. The functioning of the mediation and arbitration centre will be the responsibility of the Faculty of Law of the Lisbon New University via a protocol signed with the Ministry of Justice. Continue reading e-Justice Centre, ODR in Second Life

1st International Law School Negotiation and Mediation Competition

The 1st International Law School Negotiation and Mediation Competition is an interesting competition for law schools worldwide includes the 2008 International Competition for Online Dispute Resolution (ICODR 2008) in which 270 teams from law schools around the world have competed since its commencement. The competition covers client instruction, case pleading, negotiation and mediation in the field of commercial dispute resolution. Continue reading 1st International Law School Negotiation and Mediation Competition

Labor disputes arbitration in China

Labor disputes arbitration in China

China‘s top legislature started to read the draft law on labor dispute mediation and arbitration amid an increasing number of labor disputes that emerged in the country. The draft law was submitted Sunday to the seven-day 29th session of the Standing Committee of the National People’s Congress (NPC), or China’s top legislature, for the first reading. Arbitration in labor dispute cases will be important because in China are continuously increasing in recent years. Statistics show that labor dispute arbitration organizations at various levels dealt with 1.72 million labor dispute cases involving 5.32 million employees from 1987 to the end of 2005, with a growth rate of 27.3 percent annually.

Xin Chunying, vice Chairman of the Legislative Affairs Commission of the NPC Standing Committee said on the legislative session that excepting the increasing number of labor disputes, other problems also exist. For instance, the personnel in arbitration organizations are not professional and thus lack credibility and the process of arbitrating labor disputes is long, making the cost of arbitration high. Continue reading Labor disputes arbitration in China

International Dispute Resolution in United Kingdom UK

International Dispute Resolution in United Kingdom UK

World of Arbitration In a civilised society, citizens look to the courts to settle their disputes. The courts put judges at the disposal of the parties, the courts determine the substantive and procedural law which is to be applied and the courts enforce their own orders through court officers, when necessary. It is a one-stop shop.

For those engaged in alternative dispute resolution – ADR, the courts are available not merely to enforce decisions and awards but also to supervise and control the chosen ADR procedures, should matters go awry.

Where disputes arise in the international arena, the picture is a little different because national courts are rarely acceptable to both sides. Disputes between states or between an individual and a foreign state or between an individual and an international organisation may be regarded as being in a special category, where the aggrieved party may have recourse to treaty arbitration. Examples are arbitration before the PCA1 and arbitration under the auspices of ICSID2. Beyond that special category, the parties must make express provision for dispute resolution in their agreement, failing which the aggrieved party will be left to seek his remedy from the domestic courts of one country or another, depending upon which will assume jurisdiction.

The result is a contrast. Whereas national courts often represent a convenient and acceptable means of dispute resolution for parties to a dispute which has no international element, there is no international equivalent. In consequence, most international disputes fall to be resolved through a process or by a tribunal which is essentially consensual in origin.

This paper is concerned with the resolution of disputes arising under international construction contracts. The purpose is to survey the available alternatives and to identify some of the considerations to be borne in mind by those concerned. In this last context, the emphasis is on two key considerations, being enforcement and applicable law. Continue reading International Dispute Resolution in United Kingdom UK

New Procedures in the Institute of Arbitration

The Standard Dispute Rules (hereinafter referred to as ‘the rules’) are used, both nationally and internationally, to find a solution to a dispute or to obtain a verdict, quickly, simply and more cheaply, either through reconciliation or arbitration.

I. Conciliation
Either party may demand conciliation. The demand for conciliation is made by letter, fax or Internet. Within 10 workdays, and once the administrative costs have been covered, the other party (parties) is (are) advised of this demand for conciliation. The applicant is notified of any response or reaction by the other party. If the case reveals a serious difficulty the parties may, in that event, call for an expert or a mediator to be appointed, so as to avoid litigation. After one month or when the conciliation fails, either party may initiate arbitration proceedings.

II. Expertise and Mediation
All the parties may demand, together, in writing, for an expert or mediator. Within 15 workdays, and once the administrative costs have been covered, an expert or a mediator will be appointed. Each party bears the costs thereof for equal parts. Within 30 days after the appointment, the expert or mediator shall meet the parties and, within 3 months, he shall make a compromise or give a report with a clear opinion.

III. Arbitration
Before initiating arbitration in the first instance parties are obliged to make an attempt at conciliation every time the law imposes it.

Art. 1: General
Arbitration has, since 1958, been an internationally recognized procedure (convention of New York). Unless otherwise agreed between the parties, only the laws of the country of the clerk’s office of the Court shall apply. The law applies to all that is not expressly stipulated in these rules.

Art. 2: Jurisdiction
Parties who had not foreseen an arbitration clause, may, after a dispute has arisen, conclude a contract thereto. An arbitration agreement must be incorporated in a document signed by both parties or in other legally binding documents. Disputes which cannot be legally submitted for arbitration shall be inadmissible. If one party refuses to take part in the proceedings or does not present its arguments within the stipulated time limit, the dispute will be heard anyway and an award shall be pronounced. Continue reading New Procedures in the Institute of Arbitration

Settling e-Commerce Disputes

Settling e-Commerce Disputes by Giuseppe Leone

Despite the dot.com bust, the future of Internet commerce (e-commerce) still looks rosy. According to recent studies, it is now projected that by 2005 one billion people will be on the Internet and at least one third will make online purchases. What is even more remarkable is that this huge, $1.6 trillion business will be based essentially on trust, among sellers and buyers who are unlikely to ever see or speak to each other.

Inevitably, some of those e-commerce transactions are bound to turn into disputes. So what happens when a seller in the USA and a buyer in Russia disagree over a sale transaction worth only a few hundred dollars? What recourse do they have, when litigation, Small Claims court and arbitration are obviously not feasible options? Continue reading Settling e-Commerce Disputes