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

What is (and isn`t) ODR – Online Dispute Resolution?

Jason Krause, ABA Journal online, wrote a really interesting article about ODR. These are some of the most interesting ideas about it:

– The American Arbitration AssociationAAA – says ODR is used in only a small percentage of all cases settled, but it has seen recent growth. In 2006, 3,000 of the 160,000 cases the AAA handled were done digitally.

ODR, Online dispute resolution is a broad category: Any mediation, ar­bitration or dispute resolution that takes place outside of court and at least partially online qualifies. It differs from alternative dispute res­olution, which refers to processes outside governmental jurisdiction. ODR can mean anything from e-mailing documents and evidence to using videoconferencing to bring the sides together. And it has been most effective in international or long-distance disputes involving technology issues. Continue reading What is (and isn`t) ODR – Online Dispute Resolution?

Vacancy in the Permanent Court of Arbitration – Deputy General Counsel –

The International Bureau of the Permanent Court of Arbitration is currently considering applications for the position of Deputy General Counsel.

Qualifications

Advanced university degree in law, with admission to practice in at least one jurisdiction of a Member State. A minimum of 9 years of progressively responsible professional legal experience in the practice of law either in the legal office of an international organization, or in a law firm, or the legal office of a Government is required. Knowledge of public international law, the law of international organizations, and/or arbitration is desirable. Excellence in drafting and negotiating legal texts, as well as superior analytical, verbal communication, and inter-personal skills are required. Fluency in written and spoken English is essential. Good working knowledge of French is desirable. Good working knowledge of Spanish and/or any other major language is a plus. Continue reading Vacancy in the Permanent Court of Arbitration – Deputy General Counsel –

Vacancy in the Permanent Court of Arbitration – Legal Counsel –

Vacancy in the Permanent Court of Arbitration – Legal Counsel –

E-Arbtitration-T received the notice that the International Bureau of the Permanent Court of Arbitration is currently considering applications for the position of Legal Counsel.

Qualifications:
Applicants should be native English speakers admitted to practice law in their home jurisdiction with a minimum of five years of work experience in international arbitration, public international law, or a related field. Excellent drafting and research skills are required; language skills in addition to English are desirable. Continue reading Vacancy in the Permanent Court of Arbitration – Legal Counsel –

AAA arbitration awards will be online

LexisNexis, a leading provider of business and legal information services, and the American Arbitration Association (AAA), the global leader in conflict management and dispute resolution services, today announced a strategic relationship to deliver a new electronic collection of searchable Labor Arbitration Awards exclusively via the LexisNexis® research services. Continue reading AAA arbitration awards will be online

Litigation: Arbitration online

A lot of dispute resolution business comes to the UK. Between 6,000 and 8,000 cases find their way here each year for arbitration or other forms of mediation, such as ADR. At least half of this is related to shipping industry disputes, processed in the UK on behalf of Lloyds of London, but there is a significant amount of commercial dispute resolution too.

Kieran Flatt asks Alan Connarty, director of operations at the Chartered Institute of Arbitrators, why his organisation is championing the cause of electronic dispute resolution in some cases. Continue reading Litigation: Arbitration online

WIPO Continues Efforts to Stamp Out Cybersquatting

Online Dispute Resolution News A Colleague writes “Efforts by the World Intellectual Property Organization (WIPO) to combat the abusive registration of trademarks as domain names, or cybersquatting, made significant headway in 2003 although the problem persists most notably for high-value brands around the world. Since the Uniform Domain Name Dispute Resolution Policy (UDRP) went into effect in December 1999, through 2003, WIPOs Arbitration and Mediation Center has handled some 6,000 disputes, covering 10,000 domain names.

“While daily filings with WIPO are less now than in the early days of the UDRP, we need to continue our efforts to ensure that the rights of legitimate trademark owners are not diluted,” said Mr. Francis Gurry, Deputy Director General of WIPO, who oversees the work of the Center. “Reducing the practice of cybersquatting is an important element in enabling the Internet to develop as a secure and reliable environment which inspires confidence on the part of the ever-growing number of Internet users,” he observed. “The fact that over 80 percent of the WIPO expert decisions went in favor of the trademark holder, be it a large multinational corporation or a small or medium-sized business, underlines the bad faith inherent in this practice,” Mr. Gurry further noted. Continue reading WIPO Continues Efforts to Stamp Out Cybersquatting