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Asian

Dispute Asian Dispute Review is sponsored by:
Hong Kong International Arbitration Centre

Review
Chartered Institute of Arbitrators, East Asia Branch
Hong Kong Institute of Arbitrators
Hong Kong Mediation Council

Editorial Board Members November 2004
Hong Kong International Arbitration Centre
Peter Caldwell
News
Christopher To
62 News
Chartered Institute of Arbitrators, 64 Useful Websites
East Asia Branch
Winnie Whittaker
66 Forthcoming Events
John Cock
Arbitration
Hong Kong Institute of Arbitrators 67 Minority Share Redemption Disputes Between Shareholders of Finnish
Edwin Chan Limited Liability Companies
Paul Varty Jouko Huhtala, Marko Hentunen, Marcus Möller

Hong Kong Mediation Council 69 CIETAC Financial Dispute Arbitration Rules: Practice and Problems
Andrzej Cierpicki James M Zimmerman and Diarmuid O'Brien
Norris Yang
71 Attempting The Impossible: The New IBA Guidelines On Conflicts of
Consulting and Commissioning Editor Interest in International Arbitrations
Robert Morgan Nick Longley

73 Soybean Contracts and FOSFA Arbitration
Editor and Publishing Director Samuel CC Wong
Diane O'Hare
76 Ex parte or Default Proceedings in International Arbitration
Published by Ben Beaumont
Hong Kong International Arbitration Centre
38/F, Two Exchange Square, Online Dispute Resolution
8 Connaught Place,
Central, Hong Kong
79 ICODR 2004: Enhancing Understanding - Part 2
Tel.: (852) 2525 2381
Benjamin G Davis and Alan Gaitenby
Fax: (852) 2524 2171
Email: adr@hkiac.org Mediation
Website: www.hkiac.org 82 Pioneering an Approach to Mediating Large Disputes
Ian Hanger and John Cooper

86 Towards a New Definition of Mediation
Rhiân Williams

Case Report
91 Wal-Mart Recovers Chinese Domain Name
Gabriela Kennedy and Paloma Wong

(c) Hong Kong International Arbitration Centre, 2004 Book Review
All Rights Reserved
92 Law, Practice and Procedure of Arbitration by Sundra Rajoo
Asian Dispute Review is published quarterly for US$128 per year Robert Morgan

News

ADR in Asia Conference
The ADR in Asia Conference was held this year at the Island Shangri-La in Hong Kong
on 15 September 2004. ADR in Asia is a conference devoted to arbitration and other
forms of alternative dispute resolution and was organized by the Hong Kong International
Arbitration Centre in conjunction with the Hong Kong Corporate Counsel Association. The
Conference was well attended by over 100 delegates from countries throughout Asia. It
was such a success that it will certainly be held again next
year. The date set down for it is 15 September 2005 - so
please mark your diaries!

62 [2004] Asian DR

News

[2004] Asian DR 63

org/icsid/constate/c-states-en.org/dispute/comarb/iacac/iacac2e.jurisint.jurisint.worldbank.htm Information on the Protocol The 1966 Strasbourg Convention Providing a Uniform http://www.htm http://www.htm http://www.worldbank.htm Commercial Matters BIT bibliography On the site of the Hague Conference on Private International http://www.org/icsid/pubs/icsid-8/main-eng.fr/eng/legaltxt/42e.htm Arbitration of Civil Law Disputes Resulting from Information on the Convention Relations of Economic and Scientific-Technical http://www.alca-ftaa.jurisint.sice.org/english/texts/arbconc/58conv.jurisint.html 64 [2004] Asian DR .org/icsid/pubs/treatbibl/main.htm Cooperation The 1958 United Nations Convention (New York) on On the site of Juris International (see VII) http://www.coe.org/pub/01/en/doc/161_1.jurisint.worldbank.net/e/conventions/menu14e.en.htm Law on Arbitration The 1927 Geneva Convention on the Execution of On the site of the Council of Europe http://www.htm Information on the Treaty http://www.org/pub/01/en/153.htm Arbitral Awards The 1962 (Paris) Agreement Relating to Application of On the FTAA site (see V) http://www.01.worldbank.org/busfac/comarb/intl_conv/caicmoe.htm the Recognition and Enforcement of Foreign Arbitral Awards Information on the Convention http://www.html the Settlement of Investment Disputes (ICSID) http://www.fr/eng/legaltxt/56e.jurisint.uncitral.htm The 1975 (Panama) Inter-American Convention on The 1961 (Geneva) European Convention on International Commercial Arbitration International Commercial Arbitration On the site of the Organization of American States (OAS) http://www. Senegal) Other States On the site of Juris International On the site of the World Bank/the International Center for http://www.org/pub/01/en/151.jurisint.jurisint.htm (click on "English").hcch.org/pub/01/en/150.htm Law http://www.org/icsid/treaties/treaties.coe.htm TREATIES AND CONVENTIONS OF INTEREST TO ARBITRATION AND ADR PRACTICE 1959-1996 Bilateral Investment Treaties The 1965 Hague Convention on the Service Abroad of On the site of ICSID (see IV) Judicial and Extra-Judicial Documents in Civil or http://www.asp#fjaat the European Convention on International Commercial Arbitration The 1987 (Amman) Arab Convention on Commercial Arbitration On the site of the Council of Europe On the site of Juris International http://www.org/pub/ohada/text/text.worldbank. The 1965 Washington Convention on the Settlement of The 1993 OHADA Treaty on the Harmonization of Investment Disputes Between States and Nationals of Business Law in Africa (Port-Louis.org/icsid/basicdoc/9.html List of Contracting States http://www.jurisint.asp On the site of Juris International http://www.org/pub/01/en/doc/153_1. Useful websites TREATIES AND CONVENTIONS ON ARBITRATION The 1923 Geneva Protocol on Arbitration Clauses Contracting States and Measures Taken by Them for the On the site of Juris International Purpose of the Convention http://www.htm On the site of UNCITRAL http://www.jurisint.org/pub/01/en/doc/151_1.htm The 1979 (Montevideo) Inter-American Convention on Information on the Convention Extraterritorial Validity of Foreign Judgments and http://www.org/pub/ohada/index_en.htm Foreign Arbitral Awards On the site of Juris International The 1972 (Moscow) Convention on the Settlement by http://www.org/pub/01/en/161.jurisint.oas.org/pub/01/en/155.org/pub/01/en/doc/150_1.

incorporating amendments: amendments http://www.html The 1970 Hague Convention on Taking Evidence The 1980 United Nations Convention (Vienna) on Abroad in Civil or Commercial Matters Contracts for the International Sale of Goods On the site of the Hague Conference on Private International On the site of UNCITRAL Law http://www.arbitration-icca.europa.htm Rules") on the Carriage of Goods by Sea On the site of UNCITRAL http://www.org/english/texts/sales/salescon.ca [2004] Asian DR 65 .html Law http://www.uncitral.hcch.net/e/conventions/menu27e.html http://www.europa.uncitral.uvic.org/english/texts/sales/limitcon. http://www.org/english/texts/payments/guarant.html 1998 consolidated version.com/articles/boskey.org/english/texts/payments/bilnote.int/eur-lex/en/lif/dat/1988/en_488A0592.html The 1988 United Nations Convention (New York) on Supplementary Protocol International Bills of Exchange and International http://www.org/directory_of_arbitration_website.net/e/conventions/text31e.eu.htm available investment treaty awards.int/eur-lex/en/lif/dat/1998/en_498Y0126_05.int/eur-lex/en/lif/dat/1998/en_498Y0126_01.org/english/texts/transpor/ott.htm http://www.htm#TOP Agency On the site of the Hague Conference on Private International The 1995 United Nations Convention (New York) on Law Independent Guarantees and Stand-By Letters of http://www.eu.int/eur-lex/en/lif/dat/1980/en_480A0934.eu.europa.html the Limitation Period in the International Sale of Goods The 1992 United Nations Convention (Vienna) on the On the site of UNCITRAL Liability of Operators of Transport Terminals in http://www.hcch.europa.net/e/conventions/menu20e.law.eu.html The 1986 Hague Convention on the Law Applicable to The 1971 Hague Convention on the Recognition and Contracts for the International Sale of Goods Enforcement of Foreign Judgments in Civil and On the site of the Hague Conference on Private International Commercial Matters Law On the site of the Hague Conference on Private International http://www.html Credit On the site of UNCITRAL The 1978 United Nations Convention ("Hamburg http://www.html Promissory Notes On the site of UNCITRAL The 1973 Hague Convention on the Law Applicable to http://www.uncitral.hcch.int/eur-lex/en/lif/dat/1968/en_468A0927_01.hcch.mediate.htm INVESTMENT TREATY ARBITRATION A website providing free online access to the text of For further ADR websites please see: international investment law documents and all publicly http://www.html http://www.europa.uncitral.org/english/texts/transpor/hamburg.uncitral.uncitral.eu.htm International Trade On the site of UNCITRAL The 1978 Hague Convention on the Law Applicable to http://www.net/e/conventions/menu22e.net/e/conventions/menu16e.hcch.htm#TOP Products Liability On the site of the Hague Conference on Private International The 1988 European Convention (Lugano) on Law Jurisdiction and the Enforcement of Judgments in Civil http://www. Useful websites The 1968 European Convention (Brussels) on The 1980 European Convention (Rome) on the Law Jurisdiction and Enforcement of Judgments in Civil and Applicable to Contractual Obligations Commercial Matters On the European Union's legal research site EurLex On the European Union's legal research site EurLex http://www.html and Commercial Matters On the European Union's legal research site EurLex The 1974 United Nations (New York) Convention on http://www. incorporating the most recent Consolidated version.cfm http://ita.hcch.net/e/conventions/menu17e.

org/dispute/documents/callproposals.org Czech Republic For more information on these Conferences go to www. Intervention and Appeal" http://www. USA Mar. Sep." Mexico City Jan.20th Anniversary Conference . USA Nov. 16 http://www.com/dwnld/agenda/Program%202004.my/pdf/cietacbroc.com/index.rcakl.org/ International Advanced Arbitration Practice Workshop (IAAP) Paris Nov.edu/ American Bar Association (ABA).org and click on Events 66 [2004] Asian DR . Kuala Lumpur Nov.org.International Chamber of Commerce (ICC) Paris Nov. 23-24 Dubai International Arbitration Centre http://www.org/dispute/buildbettercorporateboards. 19 http://www. 1-2 http://www. Mar. Kuala Lumpur Dec. 13 -19 http://www.com/index. and Dispute Resolution.html Spring Conference of the Institute for Transnational Arbitration's Academic Council: Washington. 25 -30 http://www.cailaw.doc/ KLRCA Symposium on The Essentials in Arbitration.pdf ABA Judicial Division and Section of Dispute Resolution.org/ USA Mediating the Litigated Case Irvine. 15-19 http://learn2mediate. 4-5 Better Decision-Making Through Collaboration.php KLRCA-CIETAC Joint Conference on Business Opportunities & Resolving Trade Disputes .iaiparis.rcakl. USA Nov.pdf Divorce and Custody Mediation . 29-Dec3 http://www. 3 http://www.International Bar Association Berlin Dec.org/Dubai/DUBAI%20FLYERS%20CIAW.arbitrators.doc 18th Annual Summer Professional Skills Program in Dispute Resolution. London Apr.ccls. Malibu. 7-9 International Chamber of Commerce (ICC) http://www.htm School of International Arbitration . Feb. Mediation for Judges.Asian Arbitration Conference 2004 Sydney Nov. Experienced Arbitrators sharing their knowledge. 30-Apr.Mediation Training and Consultation Institute (USA) Chicago.cailaw. USA Nov.org/annual_meeting/index05.org Events of 2005 ITA -CANACO Workshop in Mexico City: "Arbitral Advocacy and Enforcement of Arbitral Awards.iccwbo.asil.cailaw. Build Better Corporate Boards: New York Nov. 8-9 http://www. 30 "Arbitration and the Involvement of Non-Parties: Transparency.iccwbo.hkiac.ibanet. 9 -11 http://www. 9 China & Malaysia Experience http://www.International Arbitration Institute Geneva Dec.Mediation Training and Consultation Institute (USA) Boulder. http://www.cailaw.cils. Section of Dispute Resolution. Phoenix.org/ita/ Centre for International Legal Studies. Los Angeles Apr. 2 Testing the Limits of International Law" http://www. USA Nov.org.org/pdf/nov2004-Arbitration%20Conference. International commercial Arbitration.org/main.DC. Steamboat Springs.Effective Dispute Resolution for the Region Dubai Nov. USA Jun.pdf IBA SERL Gas Conference . 17 .hkiac.abanet.org/main. DC.12 "Contemporary Problems in International Arbitration" http://www.org/ita/ 16th Annual ITA Commercial Arbitration Workshop Dallas.my/pdf/fullesstlseminar.org/ Meeting Business Needs in the Middle East . USA Jun.hkiac.abanet.iccwbo.html The 11th Geneva Global Arbitration Forum .php 21st Joint Colloquium on International Arbitration . 14 -16 Seventh Annual Section of Dispute Resolution conference http://www.pdf International Commercial Arbitration in Latin America: The ICC Perspective Miami. Mar. 10 . 9-10 http://www. Mediation. 24 http://www.org/ita/ IBA International Bar Association 2005 Conference Prague.18 http://www.hkiac.pdf ABA Section of Dispute Resolution. 7 philosophy & skills http://www.org/ita/ 99th Annual Meeting of the American Society of International Law: "New World Order or a World in Disorder? Washington.ibanet.org/ Divorce and Custody Mediation . Forthcoming events Function Title Place Date Events of 2004 International Commercial Arbitration in the Asia-Pacific Region . 8-12 http://learn2mediate.

The shareholders may for example according to the provisions of the redemption dispute. shareholder holding more than nine-tenths on the terms and conditions of redemption. Accordingly. However. unless otherwise agreed between the been certified public accountants. the redemption price) listed companies. Upon the application of a party claiming accordance with the Finnish Arbitration Act With regard to listed companies. the "Companies duty. with respect to smaller companies. the "SMA"). a is three. Commerce of Finland shall. According to the Companies Act. a the shareholders do not reach agreement Arbitration Act. the "Arbitration right and/or duty to redeem shares. the Companies Act does other hand. as amended. In determining the redemption price. a shareholder. shareholders relating to the company in Finnish Securities Market Act (495/1989. the Arbitration Institute of Pursuant to the Arbitration Act. without delay. or in the articles of association of a that the articles of association of a request for arbitration. and with respect to larger companies. the redemption. decide upon the have entered into a shareholders' agreement Companies Act. take into account all the redeem the shares held by the other company is under the obligation to notify relevant circumstances of each individual shareholders at the going price. has the right to demand that his domicile.g. shall be deemed to have the company may include even stricter the claimant may be required to ensure the effect of an arbitration agreement. may be redeemed in accordance with the having jurisdiction over its registered said rule. In other respects the company nor a shareholders' agreement company that it has the right to redeem the proceedings are primarily governed by the between the parties contains an arbitration other outstanding shares of the company. in this article. the trustees have generally Finnish limited liability companies shall. at Act") provides for certain minority share Notwithstanding any stricter redemption this point it should be noted that the rules redemption disputes to be settled by provisions that may apply. of the shares of a company and the votes the redeeming shareholder shall notify the the arbitral tribunal shall. the Central Chamber of (967/1992. arbitration voting rights carried by the shares. However. Jouko Huhtala. Where necessary. are often settled in arbitration in shareholders. necessary for such hearing. in that provides for disputes between the redemption obligation set forth in the general. company. The case. But. It should further be noted to submit a written reply in response to the writing. question being settled by way of arbitration. In accordance with its company may contain an arbitration clause. whose holding in a Finnish arbitral tribunal. Where disputes have concerned D isputes between shareholders of redemption (e.. according to the carried by all shares. as amended. the Finnish Companies Act even lower threshold for the redemption verifiable means of the documents (734/1978. even if there is no arbitration whose holding exceeds the nine-tenths Chamber of Commerce are only applicable agreement between the shareholders and threshold shall. redemption provisions that set forth an communication to the respondent by However. notify the tribunal is concerned. for each Act"). is one. and appoint the chairman of the or the articles of association of the shareholder. is usually preceded by the necessary number of arbitrators. be settled in arbitration. shall have the right to company of its redemption claim and the Companies Act. whose shares company shall also apply to the court not in detail regulate the actual arbitration [2004] Asian DR 67 . Arbitration Minority Share Redemption Disputes Between Shareholders of Finnish Limited Liability Companies The settling of disputes arising between shareholders in limited liability companies can be complex. the authors take the reader step by step though the procedures involved in this process in Finland. listed company exceeds two-thirds of the Arbitration Rules. for appointment of a trustee to Marko Hentunen and shares be redeemed. as amended. a shareholder of the Arbitration Institute of the Central arbitration. which. On the the shareholders of the said claim. If provisions of the Companies Act and the clause. has a the Central Chamber of Commerce hears clauses that are contained in shareholders' duty to redeem the remaining shares issued the respondent and requests the respondent agreements that have been executed in by the company. when the said threshold has as far as the appointment of the arbitral neither the articles of association of the been exceeded. In such a situation. look after the interests of absent and Marcus Möller disputes relating to the right of redemption passive shareholders during the redemption and/or the terms and conditions for procedure.

tribunal may ask witnesses or other persons have so agreed.org or contact Primrose Law at tel 2525 2381 / fax 2524 2171 / email adr@hkiac. bank guarantees are shall without delay deposit the redemption Castren & Snellman. For viewing and room booking details.org 68 [2004] Asian DR . the holders of the shares must. If the share certificates Jouko Huhtala. mediations or other forms of dispute resolution. and thus the general provisions approved by arbitral tribunals). in opportunities to present their case. Finland  !"#$% Hong Kong International Arbitration Centre Looking for a venue to hold arbitrations. the existence matter to a court of law by bringing an to the arbitral tribunal any document that of the redemption right in order to enable action against the counterparty. Arbitration proceedings. the redeeming shareholder is companies. within one month from the agreement on However. the redeeming which the decision thereon has become the original holder of the shares subject to shareholder has the right to receive title to final. Helsinki. In order awards during the proceedings and a final this case. for particular reasons. or if a decision thereon has become final. the shareholder is entitled to the going jurisdiction over the registered domicile of With regard to procedure. the arbitral arbitral tribunal may further. Marko Hentunen and tribunal for payment of the redemption are not delivered. the date when the shareholder received a arrange an oral hearing in disputes relating If title to the shares subject to copy of the arbitral award. to the redeeming shareholder as set out liable for all costs arising from arbitration If the redemption right is not disputed above. seminars or training courses? HKIAC offers custom built and comfortable rooms at competitive rates. In this case price with the county government having of the Arbitration Act are applicable. that the arbitral tribunal must determination of the redemption price. The action may be of relevance to the case.g.hkiac. e. of a security approved by the arbitral the redemption price. the redeeming shareholder Marcus Möller price (in general. in transfer of title to the shares as set out shall be brought within two months from fact. if the parties made. please visit HKIAC's Website: http://www. become an established practice to above. the arbitral but the redemption price has not been the redemption price or from the date on tribunal may consider it reasonable to order agreed upon or ordered. the interest on the redemption price from the the company. transferred to the redeeming to promote the appropriate and expedient award at the end of the process. shareholder does not reserve the right to provide the parties with sufficient The arbitral tribunal may issue partial reclaim the deposit. to redemption of minority shares in listed redemption has not already been transferred Generally. title to the shares is. decide by a separate award A shareholder dissatisfied with the to appear in order to be heard and request a certain issue that is relevant for the arbitral award has the right to refer the a shareholder or another person to submit resolution of the dispute. The shareholder at the moment the deposit is settlement of the matter. It has. among other provision of the security until the final deposit is made and the redeeming things. deliver the share certificates to the redemption to be liable for all or part of the the share certificates against the provision redeeming shareholder against payment of costs. Provided that the appropriate Arbitration Act stipulates. relating to redemption of minority shares.

James M. the limited to: (1) loans. counterclaim. each party must effect an within forty-five business days from the between banks. such provided for in the financial rules.1 The CIETAC The Financial Dispute Arbitration Rules each party to present his case. the usages and negotiable instruments. A rejection of an submit all evidence and submission between financial institutions and other application must be accompanied by the documentation within three days prior to the natural or legal persons in the currency. the foregoing time limit by up to fifteen these Rules. In respect of any matter not arbitration rules to apply. ample scope for other finance-related presiding arbitrator . the parties must between financial institutions. gold and insurance reasons therefor. or otherwise. A 1998 Under the Financial Dispute Arbitration documentation. capital. or. the disputing arbitrator within prescribed time limits.failure by the Subject to any mandatory rules of law domestic and foreign currencies. The introduction of the financial a failure to so specify may result in the track theme. CIETAC's parties are required specifically to refer to appointment will be effected by the general Arbitration Rules will apply. the arbitral tribunal must. The term parties to designate the number of arbitrators governing the contract underlying the also refers to the assignment and sale of any will result in CIETAC making a determination. Arbitration.3 markets that relate to financing in both a sole arbitrator or three . (5) they must entrust the appointment to the terms of the contract. there is period in which to jointly appoint the Arbitration Rules. jointly made by the parties.the rules provide that the I n April 2003. In all cases. the Rules in their arbitration agreement. the claimant has revision to the arbitration rules expressly Rules. if that detailed in the financial rules. dispute. If three arbitrators are to be reasonableness. (2) deposit certificates. such appointment must be applicable substantive law. (9) factoring. (6) fund transactions Chairman of CIETAC. in each case with supporting expansion over recent years. apply documents denominated in both domestic parties. within seven business standard practices of the trade. a procedure other than answer to the respondent's counterclaim. the parties may agree to a venue fifteen business days in which to file an permitted the arbitration of disputes [2004] Asian DR 69 . (7) bonds. An award must be rendered and (10) reimbursement agreements appointed.or entrust such function the CIETAC Secretary-General may extend disputes to be referred to CIETAC under to CIETAC. where a sole arbitrator is to be international standards in determining the and foreign currencies. the respondent is granted arbitration rules has paralleled and application of the CIETAC's general rules of fifteen business days to file its defence and complemented CIETAC's jurisdictional arbitration. and abide and fund trusts. which any. in term "financial transactions".2 appointment within the foregoing seven date on which the tribunal is formed - As the above merely comprises business day period. In turn. If necessary and justifiable. Arbitration CIETAC Financial Dispute Arbitration Rules: Practice and Problems The new CIETAC Rules for Financial Dispute Arbitration are analysed in this article. while the parties are considerably faster than the nine-month examples of the types of financial dispute afforded a second seven-day business period afforded generally under the CIETAC falling within the remit of the rules. including but not appointed. In order for the financial In default of the appointment of any business days. (8) collection and days of the date of receipt of the Notice of by the principles of fairness and remittance of foreign currencies. The tribunal may comprise date of the first oral hearing of the case. CIETAC issued rules Arbitrators are required to be selected from arbitral tribunal may conduct the arbitration designed to provide a summary and CIETAC's dedicated panel of Chinese in "such manner as it considers appropriate" prompt forum for resolving disputes financial specialists. Consistent with its fast. the arbitration . or alternatively. limit for the presentation of evidence. or arising receipt of the application. and CIETAC Chairman. Considerable flexibility is afforded to Diarmuid O'Brien said procedure will prevail subject to the the tribunal in the manner of conducting approval of the Arbitration Commission. in default and all types of financial instruments and Unless otherwise agreed upon by the of agreement by the parties. but must provide reasonable opportunity to relating to financial transactions. (4) letters of credit. The authors have identified certain disadvantages in the administration of CIETAC rules and also in the enforcement of the decision. Financial Dispute Arbitration Rules give a apply a fast-track arbitration procedure. The parties may jointly agree on a time broad and sweeping interpretation to the Notification of acceptance. arbitral tribunal must take into account the (3) guarantees. Zimmerman and outside China and. This term is of the Application for Arbitration must be default of agreement or a determination of defined as referring to transactions arising issued by CIETAC within five days of its such time by the tribunal. foreign exchange.

it can be difficult to weaknesses of the parties. as at recognition and enforcement of an Convention. suitable arbitrator from the dedicated CIETAC arbitration and the foreign party list. international arbitration. According to court may examine a domestically CIETAC. permit the arbitral venue to be located the parties at least ten working days before the with CIETAC. there can be certain Enforcement of Foreign Arbitral Awards. Centre (HKIAC). Notification of a hearing must be served on the role of the arbitrators. the Convention scheduled hearing. CIETAC . selected from CIETAC's drafted list of would apply to any award rendered by 4 CIETAC's jurisdictional expansion in 2000 is approved arbitrators . Beijing decision is pending. arbitration than similar arbitration arbitral award. The drawbacks are as CIETAC is a mainland organisation. it can often prove location outside China. please send it as a Word document by email to: Diane O'Hare.org 70 [2004] Asian DR . the CIETAC enforcement of a CIETAC award that Commerce). thereby limiting Financial Dispute Arbitration Rules do tribunal will determine whether or not to hold oral hearings. As Squire. 2. from a for setting aside and refusing April 2003 by the China Council for the Promotion of International Trade/ China Chamber of International procedural perspective. It is noteworthy that the 3 Subject to the agreement of the parties. generally considered a reaction to the 1996 approved arbitrators has been drafted Having regard to the foregoing. Sanders & Dempsey. while a suitably qualified and technically will depend on the relative strengths and an amendment in 2000 formally extended proficient arbitrator. Arbitration involving Foreign Invested Enterprises. or ICC arbitration developments and the observation that not benefit from the New York which can be located at a venue of choice CIETAC's rules generally conform to Convention on the Recognition and (except mainland China). In practice. Secondly. Indeed. only one case has actually been (mainland Chinese) rendered award on James M Zimmerman and Diarmuid O'Brien arbitrated under the new rules. art.including its overseas rendered award only in (by HKIAC or ICC) will be enforceable in branches in Shanghai and Shenzhen . Secretariat plays a considerably greater would not apply to an arbitral award 2 Financial Dispute Arbitration Rules. For and placed it in direct competition with notice. even where a party finds overseas arbitration. rendered awards will be enforceable in drawbacks to arbitrating before CIETAC. while regarding the Implementation of the Arbitration Law difficult to select and nominate a the Chinese party will normally seek of the People's Republic of China. such similar to the New York Convention. SIA and ICC international standards. Securities role in the administration of the rendered overseas or a Hong Kong related disputes are excluded from the Rules. the commissions overseas. A PRC court is entitled to refuse mainland China under the New York These are explored below.a separate list of CIETAC overseas or in Hong Kong. Those rendered in Hong Kong the end of August. With cases recommend parties to seek settlement of State Council Notice of the Office of the State becoming increasingly more technical contractual disputes via arbitration at a Council Concerning Clarification of Several Issues and complex. and a the basis of the merits of the case. the Singapore International N o t w i t h sta n d i n g these h ea l t hy accordingly. arbitrators may only be overseas . the successful party will Arbitration Centre (SIAC). the eventual outcome Asian Dispute Review Call for Papers If you are interested in submitting an article to Asian Dispute Review. Moreover. Editor. we expansion of the arbitral jurisdiction of domestic institutions to include foreign-related disputes. However.consequently. ipso follows: facto there are more grounds available 1 Financial Dispute Arbitration Rules (adopted on 4 (a) Administration: Firstly.had accordance with the limited criteria set China under a special arrangement that is received few cases based on the new forth in the Convention. See for financial disputes. we recommend 'domestic arbitration institutions' such as (b) Enforcement: An award rendered by the Hong Kong International Arbitration the Beijing Arbitration Commission. 4 C I E TAC i s a d o m e st i c awa rd . their bargaining CIETAC's jurisdiction over domestic cases secure his services at relatively short positions and general leverage. Asian Dispute Review: adr@hkiac. financial arbitration rules.

coded lists. handed down and does not continue Witt Wijnen. a likelihood that the arbitrator may be [2004] Asian DR 71 . on 22 May 2004. where no actual or apparent conflict exists. (a) he considers that he has doubts over his approaches to issues of bias and conflict of The first part sets out seven general ability to be impartial or independent. having knowledge of the Despite the enormity of the task and of interest situations into three colour relevant facts. The Red List. Some criticism is levelled but the author concedes that it is hard to make rules for every situation and notes that feedback to the IBA will result in refinement of these Guidelines. give rise to justifiable after two years of work. problems that the Working Party had to General Standard 2 states that an Format of the Guidelines address as enormous and complex. where the arbitrator must not act. The final list for what is meant by 'justifiable doubts' of interest and: is the Green List. which sets out doubts as to the arbitrator's impartiality the Council of the IBA approved and situations where a conflict of interest exists. which divides potential conflict of view. which is a list of situations which are: help the decision making process. could arise. The non-waivable The requirement that an arbitrator must set out the Working Party's understanding Red List sets out severe conflicts of be both impartial and independent reflects of the best current practice on the interests. law. If a reasonable and informed third party national laws.1 of this article. published the Guidelines. a better description of the task second part of the Guidelines is a practical from a reasonable third person's point might be 'impossible'.3 both of which that they are not intended to override any The second list is the Orange List. assembled a working party to consider and Guidelines and provide a cursory General Standard 1 requires all arbitrators draft Guidelines on Conflicts of Interest in comparison with the current regime for to be impartial and independent. the English Arbitration Act. application. This International Arbitration (the Guidelines). the Working Party's stated intention is which lists situations where a conflict could General Standard 2 (c) sets out a test to reduce the growing problems of conflicts exist in the eyes of the parties. conflicts of interest in arbitrations in Hong requirement ends when the final award is The Working Party was led by Otto de Kong. The (b) if facts or circumstances exist that. the test in Article 12 of the UNCITRAL identification of conflicts of interest and whereas the waivable Red List lists situations Modal Law but is in contrast to the test in disclosure rules in international arbitrations. Nick Longley or in other words to create a degree of The General Test for Conflicts of uniformity of approach to conflicts of Interest I n response to an ever increasing interest. interest and the almost infinite number of principles. Given arbitrator must not serve when either: that each jurisdiction adopts vastly different The Guidelines are set out in two parts. called General Standards and or situations in which a conflict of interest explanatory notes for each Standard. where the arbitrator can only act with the the Hong Kong Arbitration Ordinance2 or Although the Guidelines expressly state express consent of the parties. who recently described the during any challenge. the The purpose of this article is to provide general test for when an arbitrator is in a International Bar Association (IBA) an introduction to the main themes of the conflict of interest and cannot serve. judicial decisions [and] Examples from each list appear at the end would reach the conclusion that there was arbitration rules. or independence. Arbitration Attempting the Impossible: The New IBA Guidelines on Conflicts of Interest in International Arbitrations The IBA's new Guidelines regarding conflicts of interest are explained in this article. General Standards 1 and 2 contain the number of challenges to arbitrators. only require arbitrators to be impartial. The Guidelines is subdivided into two.

72 [2004] Asian DR . parties.9 guidance to proposed arbitrators. might lead him to think the views of the Working Party. and 5 Article 7(2). 9 Green List Article 4.3 relies listed is open to interpretation. Each situation of disclosure. should be of the Guidelines is the beginning rather arbitrator is a director of a party.e.3. test for disclosure by the arbitrator. The Green List includes: the disqualification test in Article 3. parties however. Although a review of the not to serve if he has any interest which.org). standard non-negotiable tender documents arise. no person can serve it is publicly listed6 but not when that share (b) where the arbitrator has previously as an arbitrator in any dispute in which that holding is insubstantial. which require arbitrators to be both include: Standards. Disclosure examples from that list above. this which could be a conflict and which must There are two important differences disclosure test is subjective. party of an affiliate. independence. club. where the doubt as to whether to disclose. same professional organisation or social The Guidelines will provide useful The approach of the Working Party. that the publication arbitrator and the party. placing the be disclosed. the test for disqualification is objective. and circumstances which may: 6 Orange List Article 3.1.Introduction Para 4. Under Article 3. except relationships through membership of the Closing Comments by consent of the parties. It should be (a) where there is an identity between the to the aid of the arbitrator. Article 3. the Guidelines do not and and their advisers on the approach to that are so severe that an arbitrator cannot cannot legislate for every conceivable adopt when considering whether a conflict serve and these conflicts cannot be waived situation. For instance. The 2 Section 2GA requires an arbitration tribunal to act General Standard 3 sets out the general waivable Red List sets out less severe fairly and impartially between the parties. test is that the arbitrator must disclose facts (a) where the arbitrator holds shares in a 4 General Condition 2 (d). Examples of such conflicts exercise their discretion to disclose useful in arbitrations governed by laws or are listed on the non-waivable Red List and information in accordance with the General rules. there are The Green List sets out those situations. the arbitrator is under a expressed a general opinion in an There is a further difference between duty to disclose the fact that he has a unrelated forum concerning an issue the Domestic Rules and General Standard material shareholding in one of the parties if arising in the arbitration.7 Similarly there is an worked with one of the Counsel as Co- person has or has had any interest which obligation to disclose close personal Counsel. They might be particularly by the parties. and arbitrator to disclose to the parties any Working Party. that the arbitrator might be biased. Hong Kong from the principle that no person can be than real.3.ibanet. whereas the Green and Orange lists. their own judge and there are two 1 The Guidelines . i. of bias and requires a proposed arbitrator parties might be. The situations such as: 3 See section 24 of the Arbitration Act 1996. The situations on the non-waivable means that the consensual nature of the Nick Longley Red List are illustrations of situations deriving arbitration agreement is more theoretical Tanner de Witt. It states that any borne in mind. party acts for one of the parties in an Rules. perhaps a useful protection for disputants. if a situations on the Green List might support The Green List party knew of it. does not require any (b) where the arbitrator and Counsel are circumstance likely to create an impression disclosure no matter what the views of the members of the same chambers. Arbitration influenced by factors other than the merits The wording reflects the wording used The Orange List of the case as presented by the parties in in the ICC Rules of Arbitration. (a) where the arbitrator has previously on the subjective views of the parties.3 of the HKIAC Domestic However under the Guidelines.5 Although The Orange list sets out situations reaching his or her decision. First the test in the Domestic Rules is autonomy has limits. where the practice The two-part Red List sets out those Conflict of Interest Guidelines please see of including arbitration agreements in situations where a conflict of interest could the IBA website (www. Any issue appearing unrelated matter without creating a perhaps broader.5.3 requires an on the Green List.1. or resolved in favour of disclosure.5. and 2. The Orange List includes: between this test and the test for bias set opinions of the parties at centre stage. The Red List If you would like a full copy of the IBA particular in Hong Kong. than the end of the story.2. in the view of the significant commercial relationship. in the eyes of the parties. might lead a party to think that the friendships with the parties 8 but not proposed arbitrator might be biased. is that there are some conflicts However. The Working (b) where the arbitrator has a significant Party has requested feedback on the actual economic interest in the matter at stake.4. give rise to (b) where the arbitrator is a lawyer in the 7 Green List Article 4. The proposed arbitrators must of interest exists. doubts as to the arbitrator's impartiality and same firm as a firm advising one of the 8 Orange List Article 3.4.4 The Lists use of the Guidelines so that consideration The inclusion of a non-waivable list is can be given to revision and refinement. This which the Working Group considers do not the Guidelines set out an objective test for difficulty applies to situations listed on both raise a conflict of interest and raises no duty the disqualification of arbitrators. General Standard 3 (c) comes impartial and independent. obvious difficulties with the drafting. (a) where the arbitrator's law firm currently out in Article 3. however. Second.

the additional events occurring after the contract was exporting soybeans to China. Cargill Agricola SA and Bianchini SA of discharge. The one red bean per kilogram was not exchange control or. Soybeans are imported into there were 2. Contracts 000 to 60. But there was charter hire due to demurrage. in the form FOSFA of Oils. The Notice reported that took place. become very significant. This was announced on or the threat of contamination. This the trade in soybean is dominated by a few involved in the trade: the importers. soybean discharged by frustration." Background returned and not processed. ADM Do accrued as a result. route." Federation")). the contract can and the suppliers to Dreyfus were ADM Do about 22 June 2004. to perform.6 red beans per This must be the first thing to ascertain. a Cargill Cargill. Bunge. As an example. This caused serious alarm to those and the place of performance is China. On 24 May 2004. CIQ Certificates (import permits) for the validity and performance thereof shall be discharge of soybean in Chinese ports were governed in all respects by English Law. Notice prices did drop dramatically from about performance. by breach or by contamination. a contract can be of Brazilian soybean shipments due to depress soybean prices. If so.000 tonnes of soybeans with contract provides: are generally made in accordance with the cargo values in excess of US$ 20 million per "This contract is made upon the terms.8 to 4. English law applies. of questions: (1) whether the standard forms of Ministry of Agriculture of the PRC were FOSFA 22 provides: contract allow for a fair allocation of risks.. Samuel C C Wong provided that the cargo complied with the from buyers of soybean oil and soybean requirements of AQSIQ. The pesticide which coated the In fact. However. the Notice permitted importation unfulfilled or cancelled contracts and claims When that happens. as in this case. the question arose as to which excused from performing it. Inspection and political pressure was exerted by Brazilian example of the soybean case: if the US Quarantine of the People's Republic of and US interests and vigorous negotiations Government imposes a ban. These are matters of the substantive T rade between China as importer further notices were issued. reaching an import tonnes of soybean on board M/V Nordstra. a material harmful so far. For example: the drop subsequent impossibility.. none of the contracting parties are English importer of soybean in the world. applications by PRC importers for been made in England and the construction.. beans". However. seller's standard forms of contract. This article explores two in accordance with the regulations of the Clause 28. Subsequently. meal. making it impossible if not illegal an exception: for shipments already en capacity due to raw material shortage. Arbitration Soybean Contracts and FOSFA Arbitration This article examines FOSFA arbitrations such as those involving soybean contracts. Shiploads of 50. in relation to suspended "This contract shall be deemed to have and (2) whether FOSFA arbitration in London exporters. Likewise. of supervening Brazil and two other suppliers from in the price of soybean. With the resumption be discharged and both parties can be Brazil. Brazil and Argentina notice of 31 May 2004. The author argues the case for choosing Hong Kong as the seat of arbitration instead of London. Dreyfus and ADM. from the contracts I have perused human consumption and soybean meal for red beans was carboxin. which announced particular contract governing apportionment as exporters in soybean.. it would be a case of suspension of Louis Dreyfus. This makes China the largest to humans and animals. The consequence under each No 58 was issued by the Administration of US$ 450 to US$ 300 per tonne. contract forms. or the Chinese Government pesticide-coated soybeans. due to exporter was Louis Dreyfus Asia Pte Ltd exceeded. suspended.944 of risks.. exporters and the brokers. Take the Quality Supervision. more importantly. the arose out of the incorporation of FOSFA international grain traders: among others. such as the law of contract and the provisions of the and the USA. the Industria Comerico E Agricultura.. It is timely to explore the above two There were accusations that the Chinese Frustration and Force Majeure issues as a result of the recent suspension Government used quality as a pretext to Under English law. in a shipment from Brazil. the Domicile clause. announced the delay and the loss and damage that the parties' control. figure of 21 million tonnes for China for the by AQSIQ Guangdong. making it China (AQSIQ). idle plant entered into.. has the rejection of a shipment of 58. even though animal feed. In fact. with shipload were stranded. Intense scenario is markedly different. so called "red of Brazilian beans provided that a limit of bans import due to a change in the law3. best serves the needs of the parties. Applications for conditions and rules. The party should bear the consequences of the frustrating event must be one that is beyond Notice. It was found that Substantive law year 2003. China for crushing: soybean oil is used for kilogram. It was eventually agreed that illegal to export soybean due to war1or AQSIQ Guangdong had once again found China would permit resumption of import prohibition2. what would be the [2004] Asian DR 73 . Seeds and Fats Associations ("the Certificate for genetically modified soybeans 22 in force at the date of this contract. including the arbitration arbitration in London per FOSFA (Federation GMO Safety Certificate and GMO Labelling clauses of this contract.

The parties can only appoint as arbitrator for security for costs. was ordered to pay US$ 2. the need for a party a reason to declare force majeure". Arbitration consequence for a shipment of soybean that These and other features of these one who is a trading.. The arbitrators appointed by the the name of its appointed arbitrator to the contract falls upon the buyer. an arbitration takes place before two consecutive days after the day of final duty and failure by the buyer to obtain arbitrators. No legal representation at the last 30 days of the contract shipment a problem arises in relation to Hong Kong hearing period by reason of Act of God. Under English law. Arbitration and Appeals of FOSFA under 2(a) and (b). In the case of parties then assume the role of advocate/ other party and to the Federation within the Bangladesh Export Import Co Ltd (BEI) v.. but this in fact is not the case. English procedural law. fires or Kong is merely the place of arbitration with members of the legal profession (Rule 4(g)). Failure to Sucden Kerry SA 5 . FOSFA Arbitration them. If this were to happen. (2) letters of credit or otherwise) before the time seller's option. the procedural law of an arbitration Further.. the buyer (BEI) was each party has the right to appeal to the serve the required notice of claim within the under an absolute duty to obtain an import Federation against the first tier tribunal's time stipulated results in the claim being licence and the contract term stipulated award (the second tier). usual practices of FOSFA have to say? Not contrary. such as terms that representative of a trading.and any certification Two-tier system date of discharge of the goods for claims on demanded by Chinese authorities beyond FOSFA arbitration is a two-tier system. judicial capacity... the award of the first tier discretion otherwise determine. Secondly.the time Hong Kong Arbitration Ordinance (Cap 341) and properly ventilating their cases. quality and/or condition. English procedural law under the shipment. Thus.. riot. the Board of Appeal has 30 days beyond the termination of such that is currently under arbitration pursuant to the right to decide whether legal cause. FOSFA impose a time bar for seeking the buyer is required to guarantee "all arbitration: 21 consecutive days after the import licences/ quota. It says: "Should arbitration. However. the Ordinance applies by consent of representation at the hearing is granted. quality. two types of arbitration a small community dominated by key contracts. full broker. In a soybean contract the appeal stage. issue. unless the arbitrators in their absolute force majeure. an appeal is heard before a surprisingly.be prevented at any time during Arbitration Act 1996 would govern..6 FOSFA arbitrators prospect of a respondent seeking an order million pursuant to the seller's counterclaim. unable to FOSFA arbitration under English law is the perform. For the unwary. (4) there is a lack stipulate that the contracts are "subject to of Asian representation in the Federation. full broker or full which provides for the consequences of the provide for phytosanitary inspection. Even at allowed for shipment shall be extended to (the Ordinance) governs. an claim. the effect of the Ordinance and the Rules of arbitration and time limits provisions.6 So." and under the prohibition clause in clause (b). and are therefore incapable very favourable to the Chinese importers in a of properly adjudicating the cases before falling market. other cause comprehended by the term English procedural law to apply or whether the This will prevent or hamper parties from fully Force Majeure at port of loading. It was held that this prohibition was not with further costs to the parties. or full non- is en route? If there is no other provision such soybean contracts are biased in favour of trading member of FOSFA or a nominated as a "force majeure" clause in the contract sellers in risk allocation. the force majeure clause only will be the law of the jurisdiction where the tribunal of five arbitrators. none of whom is deals with prevention of shipment and not arbitration is to take place. Criticisms frustrating event and the contract is held to be condition. while other contract forms arbitration as per FOSFA. for London appointed by the parties.. deemed to be waived and absolutely that inability to obtain one did not constitute an appeal is a complete rehearing of the barred. and weight to be final at load of this system are: (1) that the parties are frustrated. with events at discharge. all monies paid by the buyers (by port as per independent surveyor at the limited in their choice of arbitrators. the Rules of Arbitration of Under the Import licence and quota clause. So what do FOSFA 22 and the In the absence of any agreement to the FOSFA arbitrator. all the risk of the the case. civil commotions. the usual force majeure practices as per Seat of Arbitration with virtually no known practising Asian FOSFA". The question is whether Hong Parties may not be represented by lockout. one appointed by each party discharge of the goods for other types of import licences or quota is "not to constitute and. umpire would be appointed to take over to dispatch the notice of claim together with With this in place. independent and impartial. and 120 those specified in this contract". the event of prohibition of export of the the parties. It leads one to wonder members of FOSFA or their nominees are of discharge shall be recoverable from the whether the buyers should collectively often persons with no legal background or sellers4. strikes. arbitration. if the arbitrators cannot agree. Security for costs into. This is a peculiar 74 [2004] Asian DR . it would be negotiate for more equitable terms. above period can be a deadly trap. Thus the problem was resolved country of origin. (3) the commodities traders belong to The reason lies in the provisions of the Typically. if shipment proves without the arbitrators having to decide the Obscure time bar clause impossible during the extended 30 days. Clause But this is only one half of the catch. agent for their respective parties. non-trading member of the FOSFA. Another undesirable consequence of a frustrating event and BEI. Sugar imports were case. But there are serious differences between Under the Procedure for claiming any unfulfilled part shall be cancelled. The force majeure clause in the clause are used: (a) arbitration to take place players: the question is whether an arbitrator Cargill contract provides that the contract is in London as per FOSFA and (b) arbitration appointed in the circumstances from the subject to the "force majeure clause in to take place in Hong Kong or Hong Kong FOSFA list can be truly (or perceptibly) FOSFA 22". an absolute Firstly. subsequently prohibited by the Bangladesh tribunal is not final and a repeat of the Government after the contract was entered hearing is expected in big money cases.

legislation has been amended so that commercial disputes involving serious By virtue of both 'one country. economical resolution of disputes . (1) there is finality of the award10: recourse friendly and fully reflects party 3 Nile Co for the Export of Agricultural Crops v." The UNCITRAL Model Law ("the Model (1) Hong Kong is a neutral venue acceptable Law") applies to an international arbitration to both parties. the composition of the procedures that are appropriate to the 6 Bank Mellat v. Fairbairn. Hong Kong complexity of the case. it is submitted for costs in international arbitration unless. 14 See Article 17of the Model Law (but cf section 2GB procedure for appointing arbitrators. Samuel C C Wong Barrister at Law and Chartered Arbitrator. contrary agreement by the parties. (2) unless the parties have agreed the alternate procedures depending on the 10 Article 34 of the Model Law. non. arbitration. UNCITAL Model Law) should be promoted involving the writer and governed by English for soybean contract disputes. A case for Hong Kong arbitration A recommended arbitration clause could security for costs was applied for by the Disputes involving soybean contracts read as follows: respondent on the ground that there might between US or Brazilian exporters/traders "Any dispute or difference of any kind be difficulties in enforcing arbitral awards in and Chinese importer/processors are whatsoever which arises or occurs between China against the Chinese claimant. arbitrability under Hong Kong law and unfetter an arbitrator from a set 9 New York Convention on the Recognition and contravention of Hong Kong policy. disputes not (4) section 2GA of the Ordinance requires 4 Section 1(2) of the Law Reform (Frustrated Contracts) Act 1943. Hong Kong conducted in Hong Kong or governed by (2) H o n g Ko n g i s ge o g ra p h i ca l l y Hong Kong procedural law: Part IIA of the advantageous for both parties and Ordinance. In a arbitration for the arbitration to take place seat of arbitration (and applying the commodity arbitration under FOSFA in a neutral venue. falling within the submission to (and permits) the arbitrator to use 5 [1995] 2 Lloyd's Rep 1. Helliniki SA [1984] QB 291. that Hong Kong arbitration is well suited to in the particular circumstances of each (6) intervention by a Hong Kong court is serve the needs of both foreign traders and case. Arrangement of 2003. re g u l a r i s at i o n a n d "the English courts should be slow in cases where hearings took place in furtherance of trade between Chinese and applying the jurisdiction to order security Hong Kong. unless substantive law of Hong Kong. (3) the parties are free to agree on a stated objectives of the Ordinance16. subject to 7 Section 38(3) of the Arbitration Act of 1996. It is suggested that Hong Kong this contract shall be referred to arbitration enforces Convention awards. Lawson Combe Barbour Ltd [1943] AC 32. [2004] Asian DR 75 . empowered to determine this question11. solicitors and experts in trade 15 Section 2GA(1)(b) of the Ordinance. for complex to many international trade transactions. as modified by section 34C(5) of the Ordinance. 542. whether by provision of legal or related services for the In Bank Mellat8. legally systems' under Hong Kong's Basic Law and the ground that the claimant is ordinarily qualified arbitrators conversant in the the Closer Economic Partnership resident or incorporated outside the United relevant areas of law can be appointed. M. in most ad va n ce m e nt. procedure and allow him the use of Enforcement of Foreign Arbitral Awards. Sweet & Maxwell Asia. the agreement to arbitrate. International Arbitration Centre is achieving the fair. and 16 Section 2AA of the Ordinance. L Rep. H. Editor in Chief: agreement. question is whether FOSFA arbitration is the respondent14 and this accords with the It is suggested that an arbitration clause such a specific connection as to trigger the agreement of the parties to an international which clearly stipulates Hong Kong as the power to order security for costs. Features of international convenient to witnesses (compared 1 Fribrosa v. expeditious and 12 Article 11 of the Model Law. Bennett (Commodities) Ltd [1986] 1 Lloyd's Rep 555. This matters that fall within the definition of the parties in relation to any thing or matter was notwithstanding that China is a signatory 'international arbitration' under the arising under or out of or in connection with to the New York Convention9 and regularly Ordinance. of which mere fact that the parties had agreed that (7) it is arguable that the tribunal may not have the disputes arising out of the threat of the arbitration was to take place there. Helliniki Techniki [1984] 1 QB 291 at 292. While the arbitration agreement. 2 Societe Co-operative Suisse de Cereales v." The jurisdiction to order security for costs of contaminated soybean is but one example. two security for costs cannot be exercised on arguments as to issues of law. parties were routinely foreign entities. would be a more appropriate seat for such which shall take place in Hong Kong in arbitrations than the UK for the following accordance with the Arbitration Ordinance Hong Kong Procedural law reasons: of Hong Kong Cap 341 then in force. Kerr and Walker LJJ said that local or foreign counsel: in fact. there is no judicial guidance as to (5) there is no restriction against legal to complement mainland China in the how the tribunal is to exercise its discretion7. arbitrator and the two appointed arbitrators barristers. with the aim of 11 Article 10 of the Model Law. of procedural unfairness. 2003. experienced the Hon Mr Justice Ma. In this respect. represented by counsel and solicitors. there was some more specific minimal and circumscribed by the Chinese business entities in the resolution of connection with England other than the Model Law13 international commercial disputes. shall appoint the third arbitrator12. La Plata following: (3) the Hong Kong Ordinance is user. and maritime disputes. This would. Thus. representation at a hearing. Arbitration aspect of English law put in place to protect (4) there is no restriction as to qualification (6) the common law is a large part of the an English defendant or respondent from an or nationality of an arbitrator. number of arbitrators. where both parties were foreign. 530. arbitration in Hong Kong include the with travelling to UK to give evidence).& J. 8 Bank Mellat v.the 13 Article 5 of the Model Law. law. against an award is restricted to matters autonomy. each party shall appoint an bilingual arbitrators. tribunal not being in accordance with particular case15. SA (1947) 80 Ll. Failing (5) Hong Kong has a pool of experienced (1)(a) of the Ordinance) and paragraph 13-123 of Arbitration in Hong Kong: a Practical Guide. Hong Kong's role is Kingdom. as well as action taken by a foreign plaintiff or otherwise stated in the arbitration the basis of the commercial law applicable claimant in England. Cereal Co.

tribunal may make the award on the tribunal may proceed with the arbitration The very important question of the evidence before it. as to the for the termination of the arbitral admission of the claimant's allegations. fails The London Court of International jurisdictions. without showing sufficient cause. There are many occasions when one The Model Law. within the period of time fixed by the (b) the respondent fails to communicate his tribunal at the time of the act of default. the arbitral to submit a statement of defence. duly invited to or counterclaim are substantiated. whereas the tribunal. of the UNCITRAL Arbitration (a) the claimant fails to communicate his specifically refers to a power given to the Rules applies. would inhibit the tribunal in some produce documentary evidence. The tribunal is authorised to yet it is a situation which occurs regularly in authority given in the UNCITRAL Model proceed with the arbitration notwithstanding a variety of circumstances and requires ex Law. If one of the parties. the In the alternative the non-defaulting 76 [2004] Asian DR . that direction refers to evidence before the 1. Article 6(3). without showing sufficient directs that. Default of a party the tribunal in the above circumstances to proceedings or may not comply with an Unless otherwise agreed by the parties. If one of the parties. otherwise agreed by the parties". If. to the power to proceed. Article 28 states: statement of claim in accordance with tribunal to decide the issue upon the article 23(1). detailed guidance as to how proceedings continue. not comply with the directions of the mandatory. time fixed by the arbitral tribunal. the be vital to the success or failure not only of without showing sufficient cause for absence of a defence does not permit the the arbitration process but of any such failure. stage in the proceedings when the evidence proceedings. fails to appear at a hearing. However. And yet. the arbitral tribunal key condition. within the applicable rules or law the arbitral tribunal shall issue an order treating such failure in itself as an or by agreement of the parties. then the tribunal must be showing sufficient cause for such failure. duly notified under those provisions in the UNCITRAL Rules as divided. Article 25 (a) and (b). are very similar to to proceed is lacking and opinions are 2. the arbitral tribunal shall order that the The provisions of the Model Law. of the arbitration. shall continue the proceedings without instructed. It is at that stage that if. international arbitration occur regularly. The proceed with the arbitration. Article 25 is only available "unless a refusal or failure to participate in all or part parte action. within the period of (c) any party fails to appear at a hearing or is deemed to be before it. Article 15(8). the arbitral tribunal may tribunal to treat that absence as an subsequent enforcement attempt. and make an award. If. If arbitral tribunal. It is not clear whether DEFAULT Article 28 terminate the proceedings. the to produce documentary evidence. permits party may not participate at all in the Article 25. Article 25(c). Article 25(c) Article 28. The ICC International procedure to be used when one party does The key point here is that this article is Court of Arbitration Rules. the arbitral tribunal shall evidence before it. then the proceed in such circumstances. Ben Beaumont respondent has failed to communicate arbitral tribunal may continue the his statement of defence without proceedings and make the award on E x parte or default proceedings in showing sufficient cause for such failure. international tribunals would agree that of time. Arbitration Ex parte or Default Proceedings in International Arbitration At present there is no unity of opinion among senior arbitration figures as to the proper course of action to be taken in the event of a default in arbitration proceedings. admission that the issues set out in the claim reason appears to be that explicit guidance 3. The author argues that there is a need for guidance and offers some suggestions to alleviate uncertainty. The majority of parties and to do so within the established period Arbitration (LCIA) Rules. evidence before the tribunal. if the parties adopt the gives a wide and general power to the tribunal is not an area much discussed and UNCITRAL Rules unamended. where a respondent has failed there is a need for guidelines as to how to cause for such failure. the claimant has failed statement of defence in accordance the phrase "on the evidence before it" is the to communicate his claim without with article 23(1). proceed to make an award upon the order of the tribunal. The adequacy of the process can these Rules. the evidence before it.

in order to be seen to tribunal has no authority to issue an award continued over 22 days in the absence of meet the burden of proof. counterclaim. Such attention to detail may copies of all correspondence. law should contain a provision to the learned authors emphasise that the 1999) examine both ex parte hearings and that effect which would set forth tribunal must keep in mind the need for default awards. There may in court proceedings was treated as figures as to the proper course of action arise the issue of a costs order being made an admission of the claimant's that should be taken in the event of a against the non-defaulting party by reason allegations. according certain discretion to the deprived of an opportunity of putting its It must be explicit that unless the non. and New York Convention 1958 requirements the tribunal will proceed with useful in view of the fact that under Article V 1 (b)). where appropriate. Arbitration party could be required to submit all its the arbitration. There is a duty not correct. The tribunal will transmit all such arbitration. 36 defaulting party complies with those limitation which was considered (1)(a)(ii). the Working Group. However. (Emphasis require that such oral evidence be submitted action. evidence to the defaulting party. contained a case (Model Law. the tribunal of a party is described by Redfern and evidence before it at the time of the act of must state in the award the circumstances Hunter (op cit) at page 170. para 83). the conditions for such continuation. There is to establish that the non-defaulting party procedure default of the defendant no unity of opinion among senior arbitration has met the burden of proof.Under respondent. the Sudanese Government. Butterworths. or likewise the Redfern and Hunter do not examine the for such continuation. A tribunal. Group Report supports this conclusion. The adhered to rigorously. it may be unable many national laws on civil evidence and make submissions. improves the search for "the truth". The requirement is not noted in (Sixth Working Group Report. Case No. by agreement. Redfern and Hunter state that. at page 336. pleadings. in any event the tribunal must act in a way authorise the tribunal to make an award achieving the necessary burden of proof. adopted the wording preclude a successful challenge at the time evidence and submissions up to and of variant B. (Survey of International Arbitrations 1794- need to ensure that all necessary evidence Redfern and Hunter state that the 1970. Mustill and Boyd in Commercial Redfern and Hunter in the Law and 71. No authority situation where there is more than one another view. an attempt should tribunal must not make an award unless the be the respondent. The example of a recently joined since such regulation might not be terms of the arbitration agreement require a respondent which fails. Articles 34 (2)(a)(ii). Action must be taken against the case. claim or. Proofs of evidence It is clear. The authors also state that where the default. by copying all such procedure for fear of clashing with the default). That wording. The commentary to the Model there is no agreement to the contrary (the upon the tribunal to require the claimant to Law makes quite clear that the Working Turriff tribunal had express power under fill the gaps. and which permits a tribunal to issue the arbitration law at the seat of the defaulting second respondent whatever the an award in the case of an undefended arbitration. Paragraph 71 of the First Working litigation involving civil disputes. (Emphasis added) default. party. while of enforcement . achieved must seek further evidence. This is a crucial comment. It is submitted that the 83 As regards the three variants presented same time ensuring that the absent party is defaulting party must be kept supplied with in subparagraph (b). after deliberation. not prejudiced. all the while adhering to the Group was unwilling to spell out a detailed the submission agreement to proceed in rules of natural justice. which does not uncertain. when in any doubt as to requests. arbitral tribunal. divergent views were Arbitration.that the losing party was including the issuance of an award.. be made to formulate the conditions claimant has proved its case. 1989) Practice of International Commercial expressed as to whether the model discuss default procedures... then it is suggested that the award issued as a result of exercising a correct procedure to follow in the absence tribunal can decide the dispute upon the decision to proceed in default. to the defaulting default procedures in individual jurisdictions whether the burden of proof has been party. (2nd ed. At page 538 Arbitration (3rd ed. where applicable. This approach sufficient to issue an order that the claimant It is suggested that the learned authors are must be correct where. If the jurisdiction at the seat of situation of the other respondents. added) in sworn form. or all respondents? In The parties may.. the hearings is before the tribunal. in my view. to readily acceptable in some countries full oral hearing. from the outset. the arbitration has adopted the Model Law. it was not practical to is cited for this suggestion. However. It is not in a procedure similar to a default judgment. A31). The inference is drawn that each of its failure to comply. is where this exercise of discretion must be using a default procedure. as in this case. In the case of default. is vital. The assume that the defaulting party will usually Under one view. has failed to prove its case. In any event the tribunal should which caused the tribunal to proceed ex Turriff Construction (Sudan) Ltd. adherence to the burden of proof. [2004] Asian DR 77 .. or demands. How this suggestion both respondents. and only one of those parties is in regulate this issue in the model law. able to be seen to be carried out fairly and require the examination of the merits of the In my view the tribunal must examine equitably. against the defaulting respondent. it will be sufficient for the co-operate is apposite.. in any An arbitral award which suggests the Article 25(c). at the Mustill and Boyd. v determine a fair and equitable burden of parte. The authors. Against which in view of their general position on tribunal to waive that requirement and respondent does the tribunal take default ex parte judgements. Sweet and Maxwell. It must be Government of the Republic of Sudan proof and inform the parties thereof. that the Working jurisdiction should fall back upon the made by means of affidavit or affirmation Group anticipated that a default without proof procedure that would apply before the must be taken and submitted to the procedure would be acceptable in international local courts at the seat of arbitration in tribunal.

if without showing sufficient very difficult and that is why authoritative procedure which proves most equitable to cause. award dismissing the claim or give directions. unlike many jurisdictions has retained then issuing a reasoned determination as to Report No. the arbitral tribunal may make an Neil Kaplan are so essential.. Consider a video conference for your next meeting! For details please contact Primrose Law telephone: 2525 2381 fax: 2524 2171 email: adr@hkiac.the claimant fails to prosecute the texts such as those by Robert Morgan and the parties. 20. and is overtly undertaken and claim.. Further New after inviting the views of the parties and VIDEO CONFERENCING facilities are available at the HKIAC The Hong Kong International Arbitration Centre provides state-of-the-art Video Conferencing equipment. procedure with or without conditions.. a Model Law. This would confer a discretion on the capable of adaptation to make it effective in tribunal to use a clearly stated procedure the view of the Commission. set out in the award. The tribunal must choose the states: ". noted concerns as to the Law. utilising the latest software and accessories. Arbitration The New Zealand Law Commission in Zealand. The UNCITRAL Rules Ben Beaumont Barrister (Hong Kong and England & Wales) and New Zealand is using the fact that the could be modified to add an Article 28(4).... As a result an ignore the original UNCITRAL skeleton while should not have to prove its case would be additional clause 25(d) was enacted which retaining the concepts.org 78 [2004] Asian DR . A default.. This makes research of interest. without proof." Two issues are fully aware of the implications and agree important to note here. addressing the adoption of the original Article skeleton of the Model which procedure would be appropriate. the Model Law. Observer to UNCITRAL Model Law is just that. By this addition thereto explicitly. for the speedy should be allowed where the parties are determination of the claim. It is regrettable that so many jurisdictions The submission of a claimant as to why it adequacy of Article 25.

I refer to unconsciously. This is the second part of the article in which the role and responsibilities of the Administrator of the ICODR are examined. the rooms had to be offline world of having a reliable neutral as a the competition. a suboptimal result could be student declined at the last minute and. there was the possibility that I could unbeknownst to one party or the other. to be able to say one had set up a In other words. the same issues present in the my law school ultimately won a medal in fair competition. parties in Room 1 also came from School A. that second and no one would necessarily be the wiser. there was a possibility m u c h re s p o n s i b i l i t y fo r t h e computer platform is more extensive than that a second student from another school independence and neutrality of Online providing a dispute resolution space. I could have privileges/access than the other. However. The Administrator's Role eliminating trust. one can technology is being selected. If for some reason. Online Dispute Resolution ICODR 2004: Enhancing Understanding Part 2 In a two-part article. reflected at length. due to the late decline of the might feel pressure to give one side greater rooms was vital so as not. [2004] Asian DR 79 . Benjamin G Davis and independence through technical backdoors against each other in one of the rooms. I asked one of the students access that the other side did not have. with the third party are also needed when the student but I wondered if I had somehow pressures of making money. Equality of trusts the computer to calculate accurately had to be switched with the mediator in treatment in design of the spaces is an the user's preferences to determine the another room (Room 2) as one of the essential component. consciously or second student from School A. and emphasise here was not possible as at least twice the result served in the original mediation in Room 1 only the need for great attention to was for students from the same school to rather than Room 2. Part one. the user problem was that the mediator in Room 1 shoulders of the administrator. The new mediator from Clearly. I was happy for the equal. would have served. of desperation. the This was done and a place reserved for the design rooms with or without certain manner of calculation by the computer (or second student from School A to act as a features for students in the same competition algorithm) were to be altered by the mediator in Room 2. in the real world. to give one party an switched the mediators again so that the this problem as structural independence advantage. Even if the interesting situation about which I have actions do not amount to claims of fraud. This computer generated optimum may in the hall at my law school whether he Only by exchanging passwords (which inadvertently be given more credibility due to wanted to participate. In or specialised access for one party as 2003. the authors discuss the 2004 International Competitions for Online Dispute Resolution (ICODR). which was published in the August 2004 issue. they may still have the chilling effect of A student mediator from School B III. thanks to the kindness of learned in creating ICODR is how is required rises when the role of the another team's coach. dropped out just before a mediation round P robably the most important lesson I1 The level of trust in the administrator that in Room 1 and. The result would have eliminating even the appearance of lack of potentially be placed in different roles or been that the student from my law school. access. The Dispute Resolution systems rests on the systems with analytical support. gave an introduction to the ICODR and a detailed examination of the technical procedures involved in the running of the ICODR. He said yes and would be hard to do since the students did its coming from an ostensibly "neutral" ultimately served as mediator in Room 2 not know who was in which room) would computer (sometimes called the fourth party) where the second student from School A students see what other rooms looked like. this potential risk led to a very Alan Gaitenby opposed to other parties. However. as opposed to from one or the other party. out One side might be given a "backdoor" unfairly made to appear as an optimal result. However. administrator. As I could dictate optimal result. In (School A) could serve as a mediator. betrayed the trust of the rest of the wonder if an administrator for real disputes The random allocation of teams to students as. perfect randomness student from my law school would have tensions that arise.

or. While I feel was a pillar on which the whole ICODR the matter to the attention of the teams comfortable with my decision. someone else might service. it is evaluations. This diversity of medals won by schools of that the evaluator should not have happenstance came to light just after the various nationalities. One could organiser. While evaluators came from resolution was not possible here. With the matter. we eliminated the ranking by year's ICODR. but even Transposing these concerns to a situation of our concerns to the teams in that with many countries represented. At the end of the day. around the world. this evaluator was assigned to a hearing of the students' achievements. as an culture played a role in the evaluations in a suspicion had been aroused. explain the likely consequences cultural bias (language or legal culture) may extensive care concerning the appearance of a change and invite them to object to the have crept in. none of the other year. I think it tells specified that each student participant is to as the best that we can do. each local authentication attention of the administrator (as drawing back to the original status quo. coach by coach. to compete on a level playing field in the ourselves. Trust was being built team by would run the risk of loss of anonymity). faculty coach for the school to enter into Notwithstanding the random allocation of Having seen students who have done well. the evaluators were greatly not enough to have an evaluator removed.no matter what the modest means of the had a faculty coach while other students at held at the University of Edinburgh in June students .they can be judged on their that same school did have a faculty coach. an administrative anonymous setting. as here. 2003. When those remembered my rationale had been that I a worldwide structure and suggested that things happen. This illustrates how concern about has been felt by students in these virtual 80 [2004] Asian DR . some a real dispute. Some might think room were from the same law school. as the confidence in the competition was likely Some evaluators only saw one room and administrator. Did I know that true students are enrolled and this is that notwithstanding the most somehow favour the student from my participating. This approach appears for now cause for tremendous elation. would have mediated now also was one of a "local authenticator" independence and neutrality could arise in with completely different students and letting the organiser of the competition an anonymous setting. As part of the rules. the faculty coach role meeting. a professor). the end result was that the evaluators were American. While in the early to make sure that no improper advocates on both sides of one arbitration past the ultimate results showed a great contact had occurred. I was worried that I had somehow manner that I did not seek. One could think that in an changing rooms again . As a practical also think that a vague hunch was simply compromised the competition. but it brought forth another for objections and the round went smoothly better job of completing the specific criteria aspect of the Online Dispute Resolution from there. It raised the difficulty of aggressive efforts of the administrator. However. and problem in which the role of the faculty room where a student participant seemed having seen how impressed some evaluators coach was now seen in a different light. During the Fall of 2002. contact with the quiet student. the evaluator should professional. in thinking over the evaluations (seven to nine discrete categories environment and a vital exchange of ideas. As it turned out. It turned out that one More intriguing was the discussion in a easily accessible global competition where student had signed up without stating they recent Online Dispute Resolution Workshop . a court. they do in the room that is evaluated. While immediately draw the suspicion to the think I should have changed everything competing globally. The kind of immediate recognition that administrator and more broadly the vigilance A fourth concern I had involved the would happen in face-to-face dispute needed by the administrator in selecting the evaluators. enough.it did not appear commerce. No clear answer arose in schools objected during the time allowed In addition. it did strike me that the for each team) than in ranking the teams. I have to ask myself whether enhanced by our presenting the difficulties were therefore only able to evaluate two each student was given a fair opportunity to all the parties rather than keeping it to teams or one mediator or arbitral tribunal. experience highlights one burden on the team. one ability anonymously and by experienced When the first student was not active evaluator had visited a law school and had evaluators. I did wonder if legal participated in the competition after his start of the arbitration round and. We do not know but will of independence is important to the online team placement within a specified period endeavour to be sensitive to this issue each dispute resolution environment in order to of time. the lack of a faculty coach came spoken with students about tactics and background or how they look. What I learned from might not have scored so highly. other organiser we determined to disclose appreciated for what they did. Suspicions might be acted on changes. and many of the the room. help it flourish. school? I reflected at length on this and authenticating persons on the periphery in serendipitous things happen. Online Dispute Resolution who had joined late. again due to last minute while others did not. all students that we are able to design an have a faculty coach. I addition to helping the students prepare for the evaluator had mentioned at the Fall know that a real sense of accomplishment the competition. It is not the student's school. but what to light and a request was made to the strategies for the ICODR competitions. some evaluators accepted based setting suggests a real need to be A second concern I had involved a to evaluate more than one or two rooms extremely careful in reading what is put in situation where. However. As a result. This text- neutrals for the dispute resolution. we must rely on the neutral had already changed these rooms once and the key is to have local authentication by or evaluator to figure out what is the right did not want to create greater confusion by someone that is trusted (a chamber of thing to do. evaluators appeared to do a the discussion. experience. This evaluators to rooms and the anonymous having read the joy of their coaches in situation created an interesting authentication process. In to be using the strategies and tactics that have been with the work of the students. I feel that we have achieved a A third concern was that I had involved evaluators and kept the specific criteria fair international competition and this is a one participant. this edifice stood. one wonders if more competition.

the International Centre for us having spoken. world. and the Permanent spirit I had felt in the room was the spirit he Information Technology and Dispute Resolution. been pleased to have the assistance of the and tireless worker at the ICC Institute of Harvard Program on Negotiation in the World Business Law. all enthusiastically permitted Jean Monnet in the early 1950s.info/ students. I sensed that a way of conducting share this common experience while of learning about justice and of hope for dispute resolution worldwide that is remaining in our home locations. The about a spirit . come this far. we have written this in the Massachusetts and the financial support of in that place was something that was first person using "I" rather than "we" generally the University of Toledo College of Law and helping humanity to progress. Dispute Resolution of the American to me a week after Gaudet Day that that Amherst and Assistant Director of the Center for Arbitration Association. beginning This article is adapted with permission from Kluwer us to make reference to them to help with the extraordinary task of creating what has Law International. he knew that what was going on 1. institutions independent. Benjamin G. during lunch that day. room at lunch on Gaudet Day. neutral and global in a way this point home . Online Dispute Resolution competitions. I feel this spirit during the ICODR icodr2003_pics. For ease of reading. Journal of of the experience is the Center for wrote that in his career. which works towards helping those who make these competitions I was privileged to know and work with humanity to progress and enhances possible. 2004). to make future ICODR competitions honour I am also greatly appreciative of all IV. I felt honoured throughout the text. Organization. 20(6). (c) 2003.a place for connection. see http://www. there are the competitions and I keep a hope alive that For general information. the International Chamber of sophisticated international lawyers present. While people have ideas.a spirit that I had felt in the Benjamin G Davis Hong Kong International Arbitration Centre. evaluators making a portion of the internet .odr.org/cyberweek2003/ their assistance. whenever he had International Arbitration. Without that he had given me that insight to guide 2. Davis. 2004) [2004] Asian DR 81 . I find it remarkable how all resolution space . Arbitration. the London Court of International honour of Chairman Gaudet.php (Last visited March 12. ICODR the realism of the experience. http://www. On the these efforts by all these extraordinary icodr. He once told me selection of the mediation problems.the two authors of this such as ICODR help preserve those ideas.html (Last visited March 12. this idea would not have me. I hope that I will be able internet. He 2003: Helping Humanity Progress. a day held in Associate Professor of Law. that power is used. I Commerce International Court of remember asking an ICC Court counsel. Legal Studies Department. At the heart now become the European Union. with 150 University of Toledo College of Law Arbitration. Information Technology and Dispute felt that same spirit where people were Re s o l u t i o n of t h e U n i ve r s i t y of together. we have the ICC International Court of Arbitration together. former Chairman of understanding for all so that we grow the technologies described above. coaches and evaluators. 589-597. the Arbitration and Mediation Odette Lagace. Chairman Gaudet wrote University of Massachusetts. Finally. The satisfaction of the ICODR web page one can see the faces of people are helping humanity to progress in students is as real as that experienced in some of the students.ombuds. Hamline University School of Law. The spirit that spirit. "Do Alan Gaitenby Centre of the World Intellectual Property you feel something in this room?" Without Adjunct Professor. that so far has only been reserved for the article have now been working together for Those institutions eventually have power well-off is possible through these little steps over three years on this project and have and the ultimate question is for what goal of alerting law students to the power of the never met physically. In addition to the people behind the late Michel Gaudet. To bring peace. Court of Arbitration in the Hague have. coaches.a dispute any sport or competition in the physical and organizers2. had felt when he first went to work with over the years.

The protocol dissatisfied. term has different meanings depending on amicable and it should facilitate an ongoing Like the ancient mariner. It is based on and adapted from The mediation process also usually actions or if our own reputation or a procedure described by Sir Laurence takes account of the psychological need of prospects are affected. In our view only through taking this flexible approach Needs from an ADR process it is part of human nature to want to justify that a number of disputes we have been An ADR process has four fundamental an action that has been taken. that all evidence be exercise in psychotherapy but one cannot a flexible process and we will describe the relevant and that it be otherwise admissible. despite the process that we have recently adopted is a It must minimise the risk to the parties. while logical to lawyers. Much B oth mediation and arbitration are well employees who are in conflict and then evidence is excluded by rules of evidence established as effective methods of meet with the mediator to resolve the which. Who better to Street in a paper given many years ago. a client will address have declined to use that term because the desirable to satisfy. It must be the opposing party. We argue that it is essential to will have noticed the delight of participants Lessons learned design a dispute resolution process that when given feedback showing that the Which cases are suitable for SEAM? suits the particular dispute rather than to try mediator understands and acknowledges to make the dispute fit into a process. are not dispute resolution in Australia - conflict. logical to their clients. It must be economical. have added the word "mediation" after the This is a need which is generally not but also the CEO of the company? words "senior executive appraisal" to satisfied by the litigation or arbitration During the SEAM hearings the tribunal describe better our adaptation of the process because of their very formal and must utilise significant listening skills. It is the concerns being expressed. We thought that the most relationship between the parties. not only to involved with have been effectively and needs. agreement between the parties utilising the Initiation of the process They are therefore psychologically skills of an independent third party. help drawing on principles applied over nature of the process and our experiences Witnesses are prevented from giving their many years in the field of psychology and 82 [2004] Asian DR . Clients frequently the latter involving the submission of a We will deal with the topic under the feel that they have failed to get their dispute for determination by an independent following headings: message across to a judge because of the third party and the former involving the Needs from an ADR process formal and rigid nature of the process and resolution of the dispute by mutual Our dispute . company's finances are affected by our ("SEAM"). It is tribunal.the background the application of the rules of evidence. not only a mediator. We do process in which we were involved which rigid nature and the insistence by the not suggest for a moment that a SEAM is an requires both appraisal and mediation. Mediation Pioneering an Approach to Mediating Large Disputes The type of dispute resolution process chosen should be appropriate to a particular dispute. encouragement of the mediator to look and hybrid one. The authors have developed a type of dispute resolution which they call a "Senior Executive Appraisal Mediation" (SEAM). They discuss the effectiveness of this form of mediation in a large and complex dispute. That is why. Instead. Ian Hanger and in dealing with it. Not all disputes fit comfortably into The hearing either the mediation or the arbitration Those experienced in mediation work Was SEAM effective? process. they are experienced mediator working with two asked to answer questions designed to John Cooper senior officers of disputing organisations bring out evidence in the manner the who listen to presentations from their own lawyers think most appropriate. other person. The process should be the mediator rather than the other party. The parties must perceive it to be fair. but also to a significant efficiently resolved with our input. The fast. In order to tell our story to a significant other apposite term in Australia was to call it a to meet each of these needs the ADR person. satisfy that need than. We a person to be heard and to be understood. quite properly. In a nutshell it involves an account in their way. we all have a need where you are. It is akin to a mini trial but we There are two other needs that it is talk to the other party. That need increases if our "Senior Executive Appraisal Mediation" process must be flexible.

should be done by the persons actually showing interest in. that it is the "opposing" the traditional dispute resolution process in the agreement were very committed to CEO who should be encouraged to do the the contract (which involved mediation and making it work. The superintendent had not organisational role rather than a speaking helpful to the speaker to get more off his/ issued decisions on all of the claims.It is necessary to establish trust period. The parties had been of the process and to return a week later to (a) it ensures to the panel member that he unable to resolve the majority of their discuss the draft.The lawyers for the parties for variations. it is essential that each of the CEOs contract. That is to say the mediator and the [2004] Asian DR 83 . on site important step than had been at first sent is a message received. The contract was quite prescriptive What was clear is that the CEOs were between the two other members of the in terms of performance requirements. To achieve this. prepared to trade off what might be panel. the captain of the team for information where such is either helpful to The claims were complex and each side but that their role would be an the panel or the panel feels that it would be significant.a bit with CEOs the mediator should apply the to continue with an amicable business of amateur psychology same principles. Mediation psychiatry. disruption costs. this matter occurred deliberately. They did not want the dispute Step 3 . The arose. the with a very tight delivery period. mediator. and superintendent. acknowledging the speaker by entitlement to liquidated and other damages. envisaged by the mediator. mediation. programming and described euphemistically as a Rolls Royce knowing that they are going to have contractual requirements. They indicated that each will act with absolute integrity. that there were some mistakes in the relationship. The CEOs We would suggest for this reason. in effect. They should approach the process technical requirements. the project there were many variations. fast The Protocol: The creation of alliances - heard and understood and in prive sessions and non-acrimonious solution and a desire a retrospective look at alliances .the context is has been perceived with the wisdom of The dispute in which we first employed Initiation of process hindsight to have occurred. the contractor brought claims consultation with each other and the Step 4 .Each of lawyers must have sequencing documentation provided by the to escalate by virtue of a litigious process. confidence in the mediator. and at different levels of management. what The principal also alleged that the involved. during the whole of the construction disadvantages of each process considered. and role. project in Queensland. it was alleged by the contractor that to presentations from their relevant then the mediator must make an effort to the superintendent under the contract had employees and then made decisions on create the trust before the SEAM failed to administer the contract properly. The e xe c u t i ve a p p ra i s a l a n d e x p e r t mediator had quite lengthy conversations in project was made more complex by the determination were all discussed and the a relaxed and informal atmosphere with fact that through traffic had to be maintained relevant benefits and advantages and each of the CEOs alone. and a small the SEAM process related to a major road The process began with a meeting amount of it is wishful thinking. involved in a process whereby they listened made to the mediator but if it does not exist Finally. her chest and summarising what a speaker many of the decisions made by the The CEOs agreed to draft a preliminary has said. some of it Our dispute . particular aspects of the dispute in commences. This was done and some or she has properly understood the disputes with the assistance of the suggestions made by the mediator and concerns expressed. It was considered by the parties that having put considerable energy into drafting where possible.Before the SEAM process can as a lump sum design and construct to discuss the nature of the dispute and begin. This turned out to be a more (b) it reassures the speaker that the message the parties were strained at all levels. be. inviting more contractor's claims were time barred. ambiguities in documents. that they were prepared to live with rough Hence the mediator and the CEOs worked directions. system of arbitration or litigation as against different opinions from time to time but It was alleged that during the course of a quick and cheap process. then arbitration) was unlikely effectively agreement redrafted by either of their The mediator chairing the SEAM panel and efficiently to resolve the dispute. The project was bid between the mediator and the two CEOs Step 1 . senior skills and integrity. relationship on this project and for the Some of what we are about to say in future. Essentially. Listening involves giving full failings by the contractor in respect of mediator suggested that lawyers should be attention to the speaker with both body design and construction quality and an involved at all times but that presentations and mind. delay costs. respect and trust each other. There solicitors. has to appreciate that CEOs also like to be was a desire on both sides for a cheap. acceleration costs and damages for breaches The role of lawyers was discussed and In our experience steps 3 and 4 had been of contract. and respect for. and justice and wanted to resolve this dispute on getting to know and trust each other other contractual issues. It was also alleged and resume a satisfactory business before the hearings commenced. The relationships between adopted. then to consider the options for a speedy trust and have confidence in the mediator's It was a very large and complex project resolution. This probably principal and problems with other designs They jumped at the idea of being personally exists prior to the initial approach being and information provided by the principal. must know. Step 2 . It was agreed that a lawyer should the speaker is saying. Nor did they want their summarising. Arbitration. they were anxious to avoid the dispute accomplished long before this dispute The principal alleged that there were turning into a legalistic dispute. The process of summarising superintendent had been disputed by one agreement between themselves in respect serves two purposes: or both parties.

It is therefore necessary for the Prior to the hearing. A flexible approach was further presentation on a particular point. tension between the most promising parties of each party's case even though they were Both parties were happy with the on either side . Given a joint task and delegated several days' break in between sessions There were many lessons learned by all responsibility to resolve issues. other and the mediator to the extent that (in an ideal world) one then attempts to Where the panel could not arrive at a they were supportive of the CEOs meeting minimise the conflict between other resolution on a particular matter. agreements this regard. experts to enter conclaves to discuss and without considerable effort and sometimes The process gave the panel a "helicopter try to resolve specific issues and then discomfort. see as their adversarial role and to step into adopted and if the solicitors could agree on the role of an independent expert trying to a discrete issue the panel accepted their Was SEAM effective? help clients resolve a difficult matter. money. would attempt to ascertain why the two basis. The panel should be dealt with by the panel because written material was sufficient for the panel members formed strong bonds. and again. conflict or a very large amount of the presentations. to Step 7 .Proceeding in a similar fashion further the material that had been presented. The panel process and happy to reach resolution. in a large number of one tenth to one fifth of the estimated them in private conference with the panel cases. Mediation lawyers had all known each other well for that barriers might begin to fall.that is to say if the panel has given in a short period of time. they did not involve a very large part of the to deal with an issue without the need for It was efficient. We find that the done utilising PowerPoint with printouts of respective cases and provided "rough fewer people present in the room. The matters could not have from the psychological viewpoint one does disagreement. They should be allocated time to the parties to deal with investigate that matter further and give a encouraged to step out of what so many each issue.In the SEAMs with which we would like to mend all of the damaged at times would do trade-offs as against have been involved. if necessary. some flexibility was permitted money. They involved payments of mediator and the SEAM panel can assist in day. which in itself suggests the process than the other members of the respective asked by one party of the other for the was effective. experts have played a relationships. Again. it does not happen. agreed days for precise issue and appropriate directions they are helping the mediator and the panel the discussion of discrete issues and would be given through the solicitors to to resolve the dispute. Yes. saying that they would abide by the couple of hours. Presentations were generally view" of the claims and the parties' report back to the panel. then the with the mediator without the lawyers individuals in the dispute. members and opposing parties. For example. In the end o t h e r m at te r s w h e re t h e re wa s vital role. The parties. agreement was reached within a costs of an arbitration. although not affirmation of contractual obligations. of perfection and of course as much as one would accept and what B would offer and Step 5 . in our permitted by the panel but no cross. the more the presentation being given to the panel justice" and an opportunity for the frank the discussion. issues the parties exchanged position papers It resolved all issues in dispute between Step 6 . It took about 4 months. On some occasions the other to resolve the issues. Bloggs and Smith could be mediator discussed the material with the It cost each party approximately about appointed to sort that matter out between panel members and. the mediator proceeded without expert input on a daily the best one can to mend the relationships. extensions of time. recommendation made by Bloggs and The SEAM hearings occurred with Lessons Learned Smith. It is up recommendations. They usually each of the CEOs a first hand look at minimise the conflict by reducing the clearly apprised the panel of the issues and their respective organisation's case. sessions (sometimes with others) to consider many years and the lawyers trusted each Step 8 .We speak now of the presentations were usually very factual and be heard. The parties owned and ran the process particular mediation there were many examination was permitted by a party of and worked very closely with each smaller matters that the panel did not feel the other party. That generally involved going experts such that they appreciate that they and together broke the hearing process back and getting more detail on a very are not just helping their own team but that down into discrete issues. teams. waiver of rights and have private discussions with experts or ask the time limitations fairly well.The experts should ideally and then at the hearing each party was the parties. then one might give Bloggs and purpose of understanding a position were The process was relationship building. gained an impression that Bloggs on side A engaged in the listening and questioning to Neither party viewed the result as a has less of a conflict with Smith on Side B which we have earlier referred. develop a relationship of trust and mutual given a specific limited and equal time to The resolutions arrived at were diverse respect for each other. both the deal with the item on the agenda for that in nature. This is a counsel three members kept a note of what A present. It also gave theoretical ideal. the SEAM panel to overcome the hurdle to a settlement on mediator to develop a rapport with the had met with the solicitors for the parties that issue. SEAM was effective on this dispute to the mediator to convey this message to Prior to the hearing of the particular and has been successful on others. It may be that the panel will but in our experience the parties observed to rectify work. The panel should aim to of a very high standard. the panel met between parties to the dispute and all those involved 84 [2004] Asian DR . them. it was hoped and. It was cathartic. and importantly their people. After each session the An arbitration would have taken years. Experts exert a very large influence panel members arrived at different figures on their own clients and on their own legal The hearing and the panel would then work out a way team. Questions win. Alternatively. Smith a mutual task.

because of the large being perceived to be fair. and in a quick and cheap fashion parties fully about the process (including to deal with these early and agree a without excessive attention to detail. being economical. For of resources for a relatively short period of [2004] Asian DR 85 . in our dispute it was agreed time. ADR as arbitration and litigation will consume. binding) or the timing or cost involved. It is important to monitor that be involved in the process. time other more formal processes such and the likelihood of future obligations Because every dispute is different. constitute the meeting of the parties' enough for the CEOs not to have been the choice of mediator is absolutely CEOs under the dispute resolution involved at the grassroots level prior to critical. and if there the issues without resort to litigation there is a real need to educate the are a significant number of small issues. Sydney the ADR process is working. We would suggest that the following The main lessons learned are as follows: that all notice and dispute process factors indicate circumstances in which it is critical to understand fully the provisions under the contract would be SEAM may be appropriate: parties' objectives before recommending halted during the SEAM so that no (a) the issues are many and involve large any form of alternative dispute resolution party would be disadvantaged. Ian Hanger QC importance of trying to make the SEAM Brisbane work. suit the subjects and the subject matter of the likely cost and timing involved in we recommend fully discussing the the particular dispute. Additionally most clients tend to and if anything. Not all parties fully understand settlement can cause significant anxiety. panel clause in respect of the issues submitted the SEAM. faith in the process (including the cost process to ensure progress (by way of and time involved in more formal agreement) is being made. the releases to be given by the parties. cost and number of complex issues in dispute. and efficient they must at least meet the the nature of ADR processes (including The main anxiety arises in respect of fundamental needs of: whether they are binding or non. Mediation in the SEAM process. The parties (CEOs. the terms of settlement are meeting these needs if they are designed to submit to the CEOs and the mediator often difficult to finalise. To avoid this. It was amounts of money. and underestimate the resources. (c) a desire by the stakeholders to mend must fully trust and respect the there is a need to focus on the small the relationship and genuinely to resolve mediator. management and presenters) to the SEAM. Conclusion processes if the ADR process does not in most ADR processes deeds of If ADR processes are to be effective succeed). minimising the risk to the parties. issues and the large issues. The estimates were realistic. members. It ties up a large amount Allens Arthur Robinson. and then to ensure that the process also agreed that the process would (b) the organisations concerned are large selected will meet the parties' objectives. the process and working on the terms This helped the parties appreciate the of settlement early. SEAMs are no different in this regard being fast. under the contract remaining to be processes are only likely to succeed in In our SEAM the lawyers were asked to performed. example. cost and time) and the consequences process which will allow them to be (d) a willingness by senior management to of not participating fully and in good resolved. pursuing arbitration if the SEAM did not breadth of the releases at the outset of succeed. Which cases are suitable for there is a need to deal with the SEAM? contractual processes which will It is not suggested that the SEAM John Cooper otherwise continue to operate while process is cheap.

the 'how' of how people feel has sense to the disputants because of the been left dissatisfied. respect. substantive needs met in a dispute Between Cultures. they wish to satisfy. He spoke at or in any communication exchange. Indeed. resolve their issues and the substantive arm and quite rightly. It belongs to all the the issues or things that are the subject of disputants involved and each of their the negotiation. that it gives them an disputants. particular outcomes that they wish to whilst a 'what' or an outcome has been secure. the misunderstandings that escalate the Emotionally. and yet one person may continue of the Australians. Yet the "dispute" is a participation. Kerry O'Sullivan provides assisting disputants to transform their resolution process and yet not feel happy the following example of a negotiation understanding of the dispute in order to about the outcomes because their b et we e n C h i n e s e a n d Au st ra l i a n resolve it. Disputants very rarely Procedurally. Thus they need to resolve. a dispute between "Prior to the meeting. the Chinese side of factors that impact on the design of the a separating couple may reach a "fair" had been very concerned about the mediation process such that such a substantive outcome in the division of (culturally inappropriate) behaviour of one transformation is best enabled? property. acknowledged. discussion or dispute resolution processes. In essence. even though. focussed on what parallels "what" needs to be resolved. Substantive needs relate to shared property. this transformation and what are the range been met. This article explores the critical implications when mediation is used in cross cultural contexts and makes the argument that mediation should be relationship focussed rather than outcome focussed. emotional and substantive needs. disputant fit the understanding that disputant respected and validated as part of their has of the dispute. people need to feel OK about dispute because they feed the disputants' themselves and their participation in negative perceptions of one another. The Satisfaction Triangle: procedural and emotional arms of the triangle parallel the "how" of how people I n a dispute. for example. in many instances. Rhiân Williams by the following diagram . have ended has not been addressed. it is often not biased or prejudiced in any way. land. disputants are normally. The outcomes sought by a particular They need to feel listened to. Mediation Towards a New Definition of Mediation Mediation is not a culturally neutral process. These can be material and "stories" of the dispute builds to a more tangible. It is shaped by the cultural contexts from which it emerges. people need to believe understand the perspective of other that a process is fair. Disputes are is one of the key forces shaping how beyond their individual and partial viewpoint not resolved by dealing with only one or disputants constitute their procedural. How then do mediators effect emotional or procedural needs have not counterparts on an aid project in China. There are often in the separating couple example above. people in dispute. ultimately lead to dissatisfaction with the their and others' role in it. money complete picture. for example. opportunity to have their say. It is important to recognise that culture mediator is to assist disputants to move recognition or consideration. length about the difficulties overcome and three interdependent needs as represented It is also useful to overlay "how" and the enormous contributions made and 86 [2004] Asian DR . may ways in which they understand the dispute.Communicating agreements.termed the "what" over the satisfaction triangle. For example. which in turn. rights. In his development of mutually acceptable People may often appear to get their book Understanding Ways . mediators are tangible. The Chinese head-of- According to Chris Moore in his book to feel aggrieved because their emotional project began by praising the work of all The Mediation Process. and that it is they may believe they do. to a shared understanding that enables the two of these needs or sides of the triangle. and the needs 'what'. Those outcomes tend to make achieved. The challenge for the or intangibles such as. need to understand why the relationship people involved in the project.

Hall context cultures. Hall argues that a completely interwoven element of any those from a high context cultural cultural contexts are critical to understanding agreement process for those from high perspective they are inseparable because effective inter-cultural communication. Germany. etc. Hall identifies that England (including Australians and New Zealanders Informality Formality of English origin). or country are brought in and they will Whilst it may be argued that mediation is At no stage was the name of the often be drawn from low context cultures. the US and Directness/Openness/Honesty Indirectness/Ritual/"Face" Scandinavian countries fit on the low context end of the continuum and Asian Practicality/Efficiency Idealism/Theory and indigenous cultures are on the high context end. high and low context refers to the LOW CONTEXT HIGH CONTEXT amount of information that a person can (INDIVIDUALISTIC) (COLLECTIVE) comfortably manage. Mediation sacrifices endured by the Australian their ability to recognise it is of critical limiting the time of the mediation process. it is expensive to bring the perspective of high context participants. about reaching agreements about what will offending party mentioned. they are understood concerns of the Chinese delegates were Whose need is this mediation process by the low context mediator in a linear communicated did not translate to the meeting? Certainly not the need of sense as being in the past and separate Australians in the same way. For Hall. in low context cultures the Self-Help Birthright Inheritance majority of information is explicitly communicated in the verbal message Individualism/Privacy Group Welfare whereas in high context cultures the information is embedded in the context of Competition Co-operation the relationship. as people together and it is important to move Another consequence of time limited Sullivan goes on to point out. and thus tend to stay well Future Orientation Past or Present Orientation informed on many subjects. (Hall 1981) Materialism Spiritualism/Detachment The cultural context of mediators and [2004] Asian DR 87 . 1994) limited amounts of time available for explain and seek acknowledgement for To the Chinese it was obvious that they mediation as this fits easily with the value of what has happened or what has gone were communicating grave concerns about "time" being a core priority in low context before. He enumerated the successes importance in the design of mediation It often forces participants to focus achieved. but he expected A low context culture mediator is often far be done. In many instances when the prematurely on what will be done to speech did he comment on the importance need is identified for mediation. However. cultures. all was well. seem to relate to historical relationships ". if not from any agreement or settlement from them and how they communicated those all parties are busy. the speech quickly to reach agreement so as to not processes is that when issues are raised that probably suggested to the Australians that h o l d u p e c o n o m i c d eve l o p m e nt. concerns was also clear. Only right at the end of the processes. However. have a wider "network". Time urgent processes are often do this there may be vital elements missing their substantive concerns were clear to justified on the grounds that certain. establishing and focusing on relationships as from future agreements.. Put simply. high profile resolve matters thus defaulting to the low of respecting others' customs and working mediators from outside the immediate area context value of focusing on the future. This can vary from a high context culture where background Mastery over nature Harmony with Nature information is implicit to low context culture where much of the background information Personal Control over the environment Fate must be made explicit in an interaction. for The writer Edward T. Unless there is an opportunity to the behaviour of one of the Australians . People from low context cultures usually verbalise much Change Tradition more background information. participants. between the disputes. People from a high context culture often Doing Being send more information implicitly. it must also be acknowledged that that from the outset the message was quite more comfortable working within the for high context cultures the need is to clear" (O'Sullivan. for the common good. they define or contextualise the relationship argues that all cultures exist along a There are many consequences of a n d t h e re fo re m u st b e re s o l ve d . Hall argues that all cultures exist along a continuum from low Human Equality Hierarchy/Rank/Status to high context and that the following values can be ascribed to each context Youth Elders (See the table at right). and tend not to be well informed on subjects outside Time Dominates Focus on Relationships of their own interests.. continuum from high to low context." (Ibid) How the substantive government or industry schedules.

" (Jones 2000) pushing hard for settlement or agreement. As Nathan points range of issues that constitute and impact in the process. The only way they invariably do. as community. Mediators the significance in high context cultures of In preparing for El Nino.. fear and anger of beleaguered disputants". human. may be on their disputes.. A number of countries. In relation to how for the relationship to continue. There was a critical need to build for the exclusion of historical contexts and operating. In one instance being biased. As one researcher involved issues such as Native Title.. In 1997 there were growing people to agree on anything. The emphasis on the importance of meant more killings was an extremely hard If a time limited mediation process is taking time to build relationships as the pre. learnt. This loss of Marshalls set up El Nino task forces and uncover the cultural biases within their face then further contextualises the insisted that their ministries all worked processes and their perceptions of what 88 [2004] Asian DR . in high context forecasting information. or 'the right answer' issues should be in the negotiation and dominates with an emphasis placed on whereas in many instances creating which should not. eyeball to eyeball contact: argued that: "There are other interactions cooperation can only serve. The role of the that focus on relationships.. Models of mediation can make things work in that community. (Nathan 1998) involved of the loss of face associated with Republic of Palau and the Republic of the Mediators need to work hard to the breakdown of agreements. In essence. meaningful and lasting engagement between strong pressure to end the talks quickly. Whilst in low context cultures a relationships in order to establish trust instead emphasise future agreements are breakdown in an agreement is often also a between the scientists who forecast El Nino prioritising the interests of one or some loss of face. Artificial exclusions or any mediation process may seem to be intense particularly where a large number third party determinations of what proceeding much more slowly from the of people are dying in ongoing hostilities. Mediators rainfall was one of the most significant. Further to this. as observed by you can't write it in a paper and expect between the parties and within the parties Laurie Nathan. conflict between members of how their own cultural context is shaping communities are experts in themselves - the group that is only amenable to their determination of procedural that is they are expert in what it will take to resolution by traditional law means. relationship"... from the Centre for Conflict people to believe you. including all the actors involved gained ownership of appreciate the consequences for those the Federated States of Micronesia. its in disputes when the history is often one of drawn from low context cultures may miss impacts were far less. and process of getting the community to is in the mediation. Our awareness that every day more of war achieve an "outcome" or "agreement". a key thing was who frame discussion processes that allow both the practice and symbolism of co. to ".... colonisation and dispossession). Yet it should lead to a more team in Mozambique was "put under ignore the full range of their substantive.An acceptability.. relationships with communities requires It is clear that some writers see a role Approaches to mediation that emphasise time and a degree of comfort. forecasters and the only reason they indigenous Australians constitute their mediation processes that do not allow time trusted them was because relationships had interests in relation to land management for the necessary level of discussion in been built up. at least for mediators in "policing" what interests the need to discuss and understand what initially with ambiguity. emotional interests in order to the stakeholders. participants from both high and low problems and the answers. then recognised by those outside the mediation and because "there is no use in forcing when those agreements break down. (Williams 2003) conflict resolution domain.. individual. understanding of these interactions allows easily be seen to be culturally determined Technical experts are concerned with the mediator to make decisions about what when they are future focused and time getting an outcome.". cultures a breakdown may be seen to be forecasters were describing the coming Some Australian writers on mediation indicative of the very nature of the drought whilst standing under a tin roof in have sought to create schema that justify relationship between those involved and in pouring rain. participants blame each forecasts of a very severe El Nino drought the process could have been successful and other for this breakdown. can be brought into the mediation. It is also critical to appreciate the need may be how the group interacts with its Mediators often lack an awareness of for technical experts to recognise that elders or. An example. for Pacific nations in the 1997/1998 the reason that made it successful was that the low context mediator may not summer.. it has been order to build genuine understanding and explained: it's ".. Yet the has gone before in order to understand relationships are necessary to sustaining the role of the mediator is not to "police" what how to move to any future agreement. The only reason people the exclusion of particular interests from some instances may mean it is impossible responded was that they trusted the the mediation process. it is normally seen as something and the people who were going to use the parties over others and in so doing are to be overcome.. constitutes appropriate issues for mediation perspective of the low context culture Father Romano recalls that the Sant'Egidio is a positional approach requiring parties to mediator. procedural. heighten the suspicion. This can also making about how they will manage the full context cultures to participate meaningfully be true for mediators. one or more groups who feel most strongly and becomes itself part of the story or Whilst the El Nino resulting drop in the about the historical relationship (particularly history that needs to be resolved." The mediators nevertheless instituted that does not allow participants requisite to securing sustainable outcomes resisted the pressure because the "pathology the time to explore what is relevant to them which are owned by stakeholders is being of memory could not easily be cancelled". the the process. it's got to be a that may have an influence on the conflict Resolution at the University of Cape Town. . allow for engage with the experts about both the mediator is to facilitate the parties' decision. Mediation Furthermore in most disputes there is often relationship between the parties in dispute together to prepare for the coming drought. However.. burden to bear. but instead pushes for agreements. However. personal trust but are in a sense excluded from the South Africa. Inevitably this will mean that out "the pressure on the mediator .

. I have been engaged and as farmers what were the questions parties in voluntarily reaching their own as a Process Advisor to the Aboriginal Legal that they would want to put to Aboriginal mutually acceptable settlement of issues in Rights Movement supporting their Statewide people. so we asked the participants to definitions of mediation. dispute" (Moore 2003). that most disputants to build and manage their to land. The council or just about anyone else and you partisan and mutually acceptable third meeting between the two boards was seen will probably be offered mediation.it was mediation processes. A key Each of the boards identified all of the describe mediation as ". however. together with the relationship building processes between the to put to them. Since 2000. with some and negotiate ways of fairly dealing with mean in practice?' or 'what does co- jurisdictions even having mandated each other. were role-playing farmers and drafting the systematically isolate dispute issues in order government or Aboriginal people. Low context accommodate their needs. During the preparation for the mediation processes tend to emphasise the relationships with one another is central to meeting a number of the farmers had importance of achieving outcomes or any meaningful. They see that at the own responsibility for making decisions that key support to the negotiation process. is it undertake a role reversal exercise. My colleague matters that might otherwise be dealt with I believe that if accepted. Mediation is a points of misunderstanding between them. Mediators must see that procedural relationships with one another. relationships issues of each stakeholder group. I propose that: Mediation is a relationship in South Australia. which are broadly the expense of relationships. such as farmers. The pilot meeting for the are to have a sense of ownership over both I would like to propose a definition of relationship building meeting was set up the process and its outcomes. Folberg & Taylor Approach to negotiating Native Title. participants in the meeting. that whilst you might be discuss the causes of the differences that when farmers and Aboriginal people offered mediation services in every between them in order better to understand came to talk about 'what does Native Title Australian state and territory. the exchange.business or personal. Traditionally farmers In Australia there has been a proliferation relationships rather than outcomes or and Aboriginal people have had a fraught of mediation services. because they had not come and reach a consensual settlement that will and shared histories and these are often from the actual farmers themselves. however. sustainable and mutually identified quite confrontational questions settlement. One [2004] Asian DR 89 . Mediators must the dispute at the heart of the mediation but rather on the procedural and emotional start by negotiating with parties in dispute process. particularly your neighbour. will require mediators to evaluate whether the element of 'saving face' into the Both the Moore and Folberg & Taylor their process is emphasising outcomes at process. n e goti ations p recede substant ive doing transform their understanding and The emphasis has been on humanising negotiations and that this is vital if parties the nature of 'their dispute'. Mediators mediation that draws on elements of both between the boards of the Aboriginal Legal need to be prepared to start by negotiating the Moore and Folberg & Taylor definitions Rights Movement and the South Australian and not imposing their process. These the "how" of how they will talk about between parties are at the heart of many. any limits on process of enabling parties to 'settle' relationships including cross-cultural the process have consequences for both dispute issues but is one that can assist understanding in recognition that any lack the disputants and the outcomes of the them to fundamentally renegotiate their of understanding holds the potential to process. Mediation makes for "good" mediation. It is a process which recognises existence mean in practice?' . there was no heat in the to develop options. It is fair party. this definition and I thought that we needed to introduce by the courts. could co-exist with pastoral leases. heart of their process are the substantive affect their lives. It is therefore a self. It does appear. Moore has defined Approaching dispute system design would want to put to farmers. consider alternatives. mediators tend to focus on "what" people process which emphasises the participants' Relationship building exercises are seen as a need to negotiate. disputes. As this not all. impartial considerable impact on my own mediation them to imagine that they were farmers and neutral third party to assist disputing practice. and in so derail the substantive negotiations. if processes have brought people together "what" they need to negotiate. who assists them to analyse and as a very important meeting as it was vital to say.. From my perspective as a practitioner empowering process" (Folberg & Taylor that the groups have been brought together it is vital that mediators remember that 1984). If. particularly where they have agreed and acceptable resolution of dispute that they wanted to put to Aboriginal been funded as a means of expediting issues. place a strong emphasis on context of the mediator rather than the Aboriginal people and thinking as Aboriginal 'settlement' as a core component of the parties? people what were the questions they mediation process. your church. as I have proposed. stakeholders. the stakeholders has a range of connections questions. a process by responsibility of mine has been to design questions that the other board had wanted which the participants. there is no one that disputes are shaped by the relationships important that they had a shared approach to mediation that is universally between the disputants and that assisting understanding of their various relationships agreed. We did the mediation as "the intervention into a dispute with this definitional approach has had same with the Aboriginal people by asking or negotiation by an acceptable. We accepted by mediation practitioners in doing so because it reflects the cultural asked the farmers to imagine they were Australia. they need to talk about. And if it is. but as Aboriginal people assistance of a neutral person or persons. your together with the assistance of a non. Each of questions. miners. your boss. mediation is not merely a with the express purpose of building shared paper has sought to explain. Have a dispute with "settlement". whilst emphasising the centrality of Farmers Federation. in processes that focus not on the "how" people talk is as important as "what" Both these definitions seem to place substantive issues in relation to Native Title. What has happened in South Australia is issues. your ex-partner process whereby people choose to come since it was determined that Native Title .

have an insight into how they saw things. Mediation of the other powerful impacts of the through the difficult negotiating points that Refernces process was that each board gained an lay ahead. (1995). Jossey- stories. Sydney. very difficult issues for negotiation. Both the success of the process by whether an Mediation and Settlement of Aboriginal Boundary Aboriginal participants and the pastoralists outcome has been achieved. there will be very little in Nathan. is to assist the parties in conflict to Fo l b e rg a n d Tay l o r. are the building blocks of societies. (1994). Furthermore.. Doubleday. relationships is one that has transformed my 8(3):162-167. York. Jossey-Bass. University of Cape commitment to and support for working not with the solution or the outcomes. A Case of Undue Pressure groups decided that they wanted to place to sustain a process of renegotiation.org 90 [2004] Asian DR . This approach of assisting O'Donnell. (1998). Hale and largely overwhelming any commonalities. www. Understanding Ways of together they had seen their differences as to uncover some of the cultural biases within Communicating between Cultures. Centre for Conflict Resolution. opportunity to do was to explain in greater As a mediator it is easy to measure the Jones. despite the processes that assist them to transform their Australia. Editor. Australian Dispute Resolution Journal outweighed their differences. The Science Show ABC Radio National (Transcript of an interview with Eileen Shea Climate to know each other without the pressure to can actively work against achieving them. my processes and to recognise that the very Iremonger. (1997). not conflicts. However. Aboriginal Dispute Resolution. (2002). Staff Papers. Commonwealth of to land and country meant that. Craig. Canberra. not the whole of their without Litigation. Aboriginal Boundaries: The detail their personal stories. As a practitioner. it reinforced Behrendt. San Francisco. The Mediation Process. and to build in Alternative Dispute Resolution. Me d i at i o n : A The process did not go on to discuss understand that the conflict is a part of Comprehensive Guide to Resolving Conflict substantive issues in any way. San Francisco. K. that RhiIân Williams relationship was able to sustain them Dispute Resolution Consultant. Disputes in a Native Title Context. The Development and areas of commonality significantly stakeholders to manage and transform their Delivery of Facilitation Services in Queensland. Charlton. Project Co-ordinator East-West Centre Honolulu negotiate an outcome was seen as After all. Hall. R.. The opportunity to come together and get act of preferencing outcomes or settlements Williams. L. New allowed each of the participants the relationship. produce a joint statement indicating their The key to transforming conflict is to start. Moore.. ( 1 9 8 4 ) . International Mediation in African Civil Wars.. (1997). understanding that the other board did for me that the key to transforming conflict Federation Press. they recognised that prior to coming own practice as a mediator.au/rn Through the realisation that their relationships and shared connections were bigger than their current conflict. and if insufficient Native Title Tribunal Occasional Paper Series No2. 1990-1996. their relationships. C. Ed. it is relationships. Issues of Fairness and Justice in work together because their connections stakeholders to that conflict. (2003). in National chose to share quite personal and emotional outcomes break down.. please send it as a Word document by email to: Diane O'Hare.abc. M.net. (1981). that Hawaii broadcast Saturday 5 April 2003) found at invaluable by all attending..T. Beyond Culture. E. that at the end of that meeting both of the between the parties. They recognised the need to look at the relationships between all of the Council. but to Town South Africa. R. Australia Asian Dispute Review Call for Papers If you are interested in submitting an article to Asian Dispute Review. What it their relationship. Asian Dispute Review: adr@hkiac. It has enabled me O'Sullivan. Sydney. National Alternative Dispute Resolution Advisory together. What was powerful about this was attention has been paid to the relationship Bass. L.

Wal-Mart argued that the that he had not obtained any commercial respondent had registered and used the gains from the disputed domain name. were rejected. the panellist found that there The complainant was Wal-Mart. but that it was a website Gabriela Kennedy & Paloma Wong  " mark. namely the passive holding of "www. transfer of the disputed domain name to them. and ordered the Domain Name Dispute Resolution Centre. and noted brought under the ICANN Uniform Dispute which these entities sought an unreasonably that the company had registered its "Wal- Resolution Policy. quoted prices received by the complainant that the disputed domain name was Hedging his bets. of a The Arguments selling it or to obtain unjustified benefits.com>.wal-mart. T his case concerned a dispute over disputed domain name in bad faith. Wal-Mart owned 13 " " 2002. respondent registered the disputed domain The panellist ruled in favour of the The case was brought before the Asian name for the purpose of selling or otherwise complainant. This name had never resolved to any operational of the disputed domain name.com". Wal-Mart. Further. The respondent also failed to Further. which is one of the four dispute resolution E-mail correspondence. Guangdong which used sent by the authorised agents of the its numerous trade mark registrations for the characters "  " for its name and respondent for and on behalf of the "  " in the PRC. which provide a real address and had in fact given was not sufficient evidence to support is a well-known retailer with a principal false telephone numbers when obtaining Chen's argument that the website to which place of business in the USA. Chen Qingrui. agree with Wal-Mart's contention that various owners of the disputed domain Chen argued that his choice of the name " Chen had registered or acquired the name over the course of almost one year. its remembered seeing a lighting store in to predecessors of the respondent were own trade marks and showed evidence of Zhong Shan city. The ADNDRC has been excessive amount of money to transfer or Mart" trade marks in more than 46 handling . Prior to filing the name.com. authorisation by which the respondent could Chen asserted that < . Chen also claimed that he as a result of anonymous approaches made identical to. which he liked. The complainant also that this inspired him to choose the respondent. Wal-Mart contended that the cn. numbers in Whois. respondent's predecessor.walmart. although complaint. which is a searchable database respondent. endorsement or competition with the complainant's business.cn. the panellist did not engaged in e-mail correspondence with "Wal-Mart" Chinese names or trade marks. had no rights or Paradox Security Systems Ltd v paradox. argument regarding bad faith.net. General Motors v hummer.cn.com" and "www. character in the works of the famous There was no evidence to show that the Wal-Mart brought forward evidence French writer. brought by complainant. The complainant argued that there The respondent also argued that he was agreed that the giving of false telephone was no relationship between the complainant entitled to use < . any licence. in contravention of and the respondent that would give rise to provided such business was not in direct ICANN policy. case was no exception. countries. However. and in Whois. Jean-Jacques Rousseau. Hong Kong [2004] Asian DR 91 .wal. etc. was produced as evidence. transferring it to obtain unjustified benefits.com". permission. The the domain name < .com> would own or use the disputed domain name. among which the handled by ADNDRC so far and in most it was argued that the disputed domain latest predated the respondent's registration cases those have had an Asian nexus. Chen stated Paloma Wong Thirdly. amounted to bad faith.whois.com> in any business. widely used and recognized. containing information about domain name legitimate interests in the disputed domain com. the disputed domain name and the martchina. never be used for any commercial or profit- which consisted entirely of Wal-Mart's " making purposes. Wal-Mart sought to purchase The respondent denied all allegations there were letters from the respondent's the disputed domain name from the made by the complainant and claimed he relatives and friends certifying this. website. The respondent the registration of the disputed domain the disputed domain name resolved was was Chen Qingrui.com v google. complainant put forward evidence that the The Decision (ie Wal-Mart in Chinese characters). trade marks in the PRC. satisfied with the other evidence/arguments accessible worldwide and in the PRC using The respondent cited cases where regarding bad faith adduced by the the domain names "www. respondent's failure to provide any address Secondly. famous brand owners.com domain name disputes since sell the disputed domain name to Wal. registration .com. between Wal-Mart The panellist agreed with the arguments providers accredited to hear complaints and the predecessors of the respondent in put forward by the complainant. Over 69 complaints have been Mart. and that the respondent did not serving the interest of the public. These included google. domain name complaints. or confusingly similar to. Lovells.  " for the disputed domain name was disputed domain name for the purpose of based on a name. The panellist also name. Wal-Mart had was not aware of the existence of any Regarding bad faith. Case Report Wal-Mart Recovers Chinese Domain Name Gabriela Kennedy & hold any registered trade mark rights in In response to the complainant's respect of the "  " mark. the panellist was cited evidence of its various websites disputed domain name.

This. In relation to statutory 4. been a protracted process. which means the New York Convention. Rajoo. together with curiously. a welcome and Malaysian legislation online. these three It should not be assumed. as a glance at the in the prospects for law reform.html. Practice and Procedure of Arbitration by Sundra Rajoo (2003. especially for laws and related rules of court listed at leading overseas users and academics. arbitration under the auspices of the interested or involved in arbitration in Malaysia. for very few websites such as www. proposals by the Bar Council of Malaysia for 6. Arbitration law reform in Malaysia has thus provided with a 'one stop shop' in this 2. It is also active in domestic principles.an arbitration venues in East Asia consolidation. therefore. appears to be Hong Kong. thereto have been largely piecemeal. most important amending statutes being The appendices contain an extensive Robert Morgan the Arbitration (Amendment) Act 1980 collection of reference materials.hkiac. Amendments Act. the KLRCA is discussed in a separate chapter. the the enactment of a new Arbitration Act. in any event. 92 [2004] Asian DR . Far is the very first detailed and comprehensive the statutory materials appendices. conducted in Malaysia. which has been hard to come by over the comparative purposes. in Committee on Hong Kong Arbitration Law. embracing statutes.although. These are as follows. this is just as well.html. by way of comparison.my/acts. Queensland) ('the 1980 Act') and the Convention on the and foreign. p 683. Book Review Law. despite the fact that the discussed in a chronological manner. This reviewer was unable to find any arbitration years. http://www. (ii) The 1980 Act has 'home-grown' international arbitrations covering. broadly the text of the 1985 Act. and one which is particularly useful for 3. It omissions detract from the usefulness of little arbitral activity goes on there. The in the appendices. Given its special status appendix of their own. from lumped together with trade union and principal Arbitration Act 1952 ('the 1952 arbitration agreement to challenge and workmen's compensation legislation in Act'). however. Users and students of Malaysian arbitration are 1. Or apparently so. discussing the subject from first to remedy this situation.kehakiman. been omitted from the appendices . international arbitration. the giants are China and Malaysian approach is. The the case of Malaysia: for annual figures There is considerable interest in New York Convention is then set out about international arbitration in Malaysia arbitration law and practice in Malaysia and verbatim once again in Appendix 10. http://www. ISBN 967-962-481-1). both Malaysian Barrister (England & Wales. for example. casebound Robert Morgan Law which will apply to both domestic and that sections 32-34 are missing . preliminary points of law and appeals against the source of section 34 to the 1952 Act5. arbitration Recognition and Enforcement of Foreign rules and procedural and ethical guidelines. thus facilitating Appendix 4. See note 1. Act is set out at Appendix 17. The the Malaysian Rules of the High Court arbitration. is based upon the and its de-linking from national arbitration These criticisms apart. that the Malaysian Government is considering This reviewer's criticisms are limited to 5.lawsofmalaysia. which purports to contain of cases referred. gov. judicial determination of important omission given that this Act was possessed of well-known arbitration centres. Kuala Lumpur. commissions or other institutions. and a practice manual.org. Rajoo's book is. See 'Statistics' link at the HKIAC website - Arbitral Awards Act 1985 ('the 1985 Act'). In terms awards on questions of law. which governs both domestic and enforcement of awards. therefore. however. In Hong Kong. the Commissioner about the subject shown in Hong Kong and for Law Revision's website. The text of section 34 does. It performs the publisher would consider issuing arbitration under the auspices of the Kuala the dual functions of an authoritative addenda pages with each copy of the book Lumpur Regional Centre for Arbitration textbook. (i) equivalent enactments in Part IV of the Arbitration draft Act is premised on the adoption of an Appendix 1 sets out the text of the 1952 Ordinance (Cap 341) contain provisions additional to amended version of the UNCITRAL Model Act as at 1 November 1972. Given are hard to come by. Malaysian Law Journal\LexisNexis. www. The text of the new draft Arbitration Malaysian Judiciary website. (iv) Order 69 of (KLRCA).worldlii. however. appear at the incompleteness of the statutory materials p 658 in the text. information about regard.com Singapore. without provisions to implement it6. is a commercial service) or the regarded in Malaysia as something of a state online4. secret. the RHC surely merit an international commercial arbitration ease of reference. reform appears to have been Malaysian statutes appear to be accessible (which. servicing mainly the construction arbitration process throughout is generally (Arbitration Proceedings) ('the RHC') is industry. they are referred to in the list of M alaysia is one of a number of additional optional rules for domestic sections at page 688. By comparison with the openness materials. It is now a matter of record. The proposed (iii) Appendix 9. Sundra the aforementioned difficulties in accessing Statistics page on HKIAC's website reveals2. the middle rankers are Singapore similar to that proposed for Hong Kong in incomplete as it merely sets out verbatim and South Korea and the smallest are 2003 by the Hong Kong Institute of Arbitrators' the text of the New York Convention Malaysia and Japan1.org/en_statistics. that long overdue contribution to the subject. this book is an "vastly outdated"3 pre-1979 version of the law by virtue of section 34 of the 1952 essential addition to the library of anyone who is English Arbitration Act 1950. cxxxvi + 1396 pp. Perhaps from it: Malaysia has a profile in international treatise on Malaysian arbitration.

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