Transnational Dispute Management
Volume 3 - Issue #04 - July 2006
Table of Contents
» Special Feature:
Alternative Dispute
Resolution in Asia
EDITOR IN CHIEF
Professor T. Wälde
Centre for Energy, Petroleum
and Mineral Law and Policy at
the University of Dundee,
Scotland, UK.
E-mail: twwalde@aol.com
TDM is supported by
the IBA and
CEPMLP
www.transnational-dispute-management.com
Special Feature:
Alternative Dispute Resolution in Asia
Alternative Dispute Resolution in Asia - Editorial Introduction
Professor A.F.M. Maniruzzaman, University of Portsmouth, Munir.Maniruzzaman@port.ac.uk
It is my great pleasure to launch this TDM special edition on 'Alternative
Dispute Resolution in Asia'. The expression 'Alternative Dispute Resolution' has to
be understood in an expansive sense that includes negotiation, mediation /
conciliation and arbitration, etc. Here, however, the focus is on commercial
disputes. The subject is important not only for the fact that the 21st century is
considered to be the Asian Century in terms of ever growing economic activities
and achievements in the region but also that the subject itself will have to be
taken, in practice, more seriously for a better understanding of it in the Asian
context.
It should be appreciated that in Asia the subject of dispute resolution has a
unique dimension that could very often be embedded in culture, traditions and
the fabrics of the society as a whole. Where oriental culture and Confucianism
have different considerations in matters of dispute resolution to that in the
western world, it may be advisable that for their continuing successful business
relationship western business people and their advisers should learn something
valuable from the attitude of their eastern counterparts. The eastern and western
dispute resolution systems and the respective societal value judgements cannot
be wrapped up together in one mode. Any such attempt will be undesirable in the
real world. In the age of globalization when cross-cultural elements need to play
an effective role for harmonious business relationship across the borders, a better
understanding of the eastern culture of dispute resolution can make a positive
contribution to it.
Although in many Asian countries the UNICTRAL Model Law on International
Commercial Arbitration has been followed in legislative enactment, and
institutional infrastructure for alternative dispute resolution has been established
and promoted in several centres in Asia, there still remain myriad of problems
associated with international commercial arbitration in that part of the world.
This special edition, first in the series, explores the above matters, recent
developments concerning alternative dispute resolution in Asia and many relevant
recurring issues. Interested experts are most welcome to contribute to the future
special editions.
Professor A F M Maniruzzaman
University of Portsmouth, UK.
Chief Editor
TDM Special Edition
Alternative Dispute Resolution in Asia.
Volume 3 - Issue #04 - July 2006 - 1
 Settling International Business Disputes in
Asia - Pitfalls and Prospects
Professor A.F.M. Maniruzzaman, University of Portsmouth,
Munir.Maniruzzaman@port.ac.uk
Introduction
The importance of the issue of settlement of
international business disputes in Asia by alternative
dispute resolution (ADR) methods cannot be overlooked
in the present day of international business transactions
in that part of the world. Such an issue will be ever more
increasingly prominent in the context of an ever stronger
regional Asian market in the framework of economic
regionalism of ASEAN Plus Three,[1] prospective regional
energy co-operation in Asia and also in a wider context of
the Asia-Pacific region in the foreseeable future. Such
regional energy co-operation may take place in various
forms such as the South Asian power grid, the Southeast
Asian power grid, the ASEAN power grid, the Myanmar-
Bangladesh-India cross-border gas pipeline project
(recently proposed),[2] the Trans-ASEAN pipeline
network for gas transit across the ASEAN countries,
Trans-Asian gas pipeline project,[3] the interconnection
of power grids in the APEC member countries,[4] etc.
Apart from that, in many international energy contracts
that concern Asian countries as host countries for the
exploration and exploitation of oil, gas and energy, the
host country is, more often than not, agreed by the
parties concerned as the venue for the settlement of
disputes arising out of these contracts by ADR methods.
This may be, however, due to the stronger bargaining
power of the host country. There is also an increasing
tendency among Asian parties to refer their disputes with
foreign partners in international business transactions to
international arbitration centres close to their home
country. All these recent trends explain why the issue of
settlement of international energy and business disputes
in Asia should be taken very seriously.
A commentary article reprinted from the March 2005
issue of Mealey's International Arbitration Report.
Footnotes
[1] The group unites the member countries of the
Association of the South-east Asian Nations with China,
Japan and South Korea. It is predicted that this group
could become the world's largest trade bloc, dwarfing the
European Union and North American Free Trade
Association" - see Michael Lind, "How, America became
the world's dispensable nation,"Financial Times (Tuesday,
January 25, 2005), p.17.
[2] Recently, in a joint statement of the energy
ministers of the three countries issued in Yangon it was
stated: 'The speedy implementation of development
programmes by all the governments of the region and
accelerating economic growth are boosting a huge
market for natural gas in the region requiring regional
development of energy sources and infrastructure for the
delivery of the gas to consuming centres' - see
Bangladesh Sangbad Sangstha, Dhaka, 15 January 2005,
available at: www.bangladesh-web.com
[3] See at
http://www.gasandoil.com/goc/news/ntc30256.htm,
Afghanistan, Pakistan and Turkmenistan signed a
Memorandum of Understanding to pursue the pipeline
project in May 2002. The project covers 1,500 km
pipeline from gas-rich Turkmenistan across Afghanistan
to Pakistan. The $2 bn project with a capacity of 20 bn
cm is expected to be completed by 2005.
[4] See generally, Cross-Border Power: A Report
Addressing the Barriers to the Interconnection of Power
Grids in APEC Member Economies 2002 (Asia-Pacific
Economic Cooperation Energy Working Group, March
2002) EWG 03/2001T. The full text of the APEC study is
available at http://www.
apecenergy.org.au/welcome/publications/ See also
Robert Pritchard, "The Contemporary Rationale for
Interconnection of Power Systems," Oil, Gas and Energy
Law Intelligence (vol.1, issue no.1, 2003), available at
http://www.gasandoil.com/ogel/articles/roundup_08.htm
ª Full article here
The New Law of International Commercial
Arbitration in Bangladesh: a Comparative
Perspective
Professor A.F.M. Maniruzzaman, University of Portsmouth,
Munir.Maniruzzaman@port.ac.uk
Introduction
Bangladesh has recently enacted a new arbitration
law, known as "The Arbitration Act, 2001 (the "Act")."
The Act came into force on April 10, 2001.[1] The Act has
repealed The Arbitration (Protocol and Convention) Act,
1937 and The Arbitration Act, 1940.[2] With this new
enactment Bangladesh has kept pace with the recent
trends in the field of international commercial arbitration
in the rest of the world. Such a legislative step was
urgent in the face of increasing foreign investment in
various sectors, especially in the natural gas and power
sectors in Bangladesh, and her ever-growing export trade
with the rest of the world. The new Act, principally based
on the UNCITRAL Model Law on International Commercial
Arbitration (1985),[3] consolidates the law relating both
to domestic and international commercial arbitration. The
new Act thus creates a single and unified legal regime for
arbitration in Bangladesh which has also been the trend
in recent years elsewhere.[4] However, in the context of
international commercial arbitration, the Act has specific
prescriptions which are not applicable to domestic
arbitration. In certain respects it has drawn on the Indian
Arbitration and Conciliation Act, 1996.[5] This is
obviously in tune with the reality of the region as a
growing popular destination for foreign investment.
Volume 3 - Issue #04 - July 2006 - 2
 In this article the new Bangladesh Act will be
discussed, wherever relevant, with reference to the Model
Law and the The Indian Act, 1996 and beyond. The
purpose here is to examine how both the new
Bangladesh Act and its counterpart in the sub-continent,
i.e. the Indian Act have followed the Model Law as a
model or a source of inspiration and how the new
Bangladesh law fares with the recent trends of
modernization of international arbitration law.
Previously published in American Review of
International Arbitration. Vol. 14, 2004.
Footnotes
[1] Vide Notification No. SRO 87-Law/2001 dated 9-
04-2001, published in BANGLADESH GAZETTE
EXTRAORDINARY, dated 10-04-2001. Section 56 of The
Arbitration Act, 2001 [hereinafter the Act] states: "After
the commencement of this Act [the Bangla text], the
Government shall, by notification in the official Gazette,
publish an Authentic text in English which shall be known
as the Authentic English Text, of this Act : Provided that
in the event of any conflict between this Act and the
English text, this Act shall prevail." It should be noted
that the official Authentic English Text of the Act has not
been published yet by the Government of the People's
Republic of Bangladesh.
[2] The Act, Sec. 59(1).
[3] UNCITRAL Model Law on International
Commercial Arbitration, U.N. GAOR, 40th Sess., Annex I,
U.N. Doc. A/40/17, Annex 1 (1985), available at
http://www.uncitral.org/ en-index.htm.
[4] For example, in Germany and India. See the
German Arbitration Act (1998) incorporated in the
German Code of Civil Procedure (ZPO) Arts. 1025-1066;
Indian Arbitration and Conciliation Act, 1996.
[5] Indian Arbitration and Conciliation Act (1996)
[hereinafter the Indian Act], available at
http://www.indialawinfo.com/bareacts/arbc.html#_Toc50
0592248.
ª Full article here
Cultural Differences & Ethnic Bias in
International Dispute Resolution An
Arbitrator/Mediator's Perspective
Karen Mills, KarimSyah Law Firm, kmills@cbn.net.id
Introduction
Globalisation! How many times a day do we read or
hear the term? And what exactly does it mean in our
daily lives? For some, businesspersons, it means the
opening of markets for goods, services, and operations.
For workers it often means export of jobs. For lawyers it
means more cross border transactions, and disputes. For
arbitrators and mediators it means more cultural variety
in the disputes we seek to resolve. But for all of us it
means, or should, nay MUST, mean the necessity to
understand and accommodate diverse cultures and all
their ramifications.
And this diversity of culture expresses itself at every
stage of business and even personal life when any cross-
border aspect is present. For the dispute resolution
practitioner, it pervades all negotiations, mediations and
arbitrations. Of all players in the world economy, it is
incumbent upon us, as arbitrators and mediators, to be
the most sensitive to these cultural nuances, as our
mission can succeed or fail according to how well we
fulfill that role.
This paper was prepared for Chartered Institute of
Arbitrators, Malaysia Branch International Arbitration
Conference, Kuala Lumpur, 31 March - 1 April, 2006
ª Full article here
Enforcement of Arbitral Awards in Indonesia
& Other Issues of Judicial Involvement in
Arbitration
Karen Mills, KarimSyah Law Firm, kmills@cbn.net.id
Introduction
When Indonesia attained independence, in 1945, the
then governing Dutch laws remained in force until such
time as new laws would be promulgated to replace them.
Thus Indonesia remains a civil law jurisdiction, with
Dutch law as the underlying basis. Arbitration in
Indonesia dates back to the mid-19th Century Dutch
Code of Civil Procedure, Burgelijke Reglement of de
Rechtsvordering (generally known as the "RV")[1]
coupled with the general freedom of contract provisions
in the Indonesian Civil Code.
Until 1981, when Indonesia ratified the 1958 United
Nations Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (the "New York
Convention")[2], enforcement of any arbitral award was
handled in the same manner as enforcement of a final
and binding court judgement. However, since Article 463
of the RV provides that, except for general average
Volume 3 - Issue #04 - July 2006 - 3
awards, judgments of foreign courts cannot be enforced
in Indonesia, it had previously been assumed that the
same applied to foreign-rendered arbitration awards and
thus these could not be enforced in Indonesia.
This paper was prepared for The Inaugural
International Conference on Arbitration of the Malaysia
Branch of the Chartered Institute of Arbitrators, 28
February - 1 March, 2003, The Mandarin Oriental, Kuala
Lumpur
Footnotes
[1] State Gazette No. 52 of 1847, junct. No. 63 of
1849 (Arbitration was covered in Articles 615 through
651 of Title I).
[2] By Presidential Decree No 34 of 1981, published
in the State Gazette (Berita Negara) of 1981, as No. 40,
of 5 August, 1981.
ª Full article here
The Law and Culture of the Apology in Korean
Dispute Settlement (With Japan and the United
States in Mind)
Professor Ilhyung Lee, University of Missouri School of Law,
LeeIH@missouri.edu
Introduction
The comparative commentary regarding the role of
the apology in dispute settlement has in large part
revolved around the U.S.-Japan axis. Beginning with the
pioneering work of Professors Hiroshi Wagatsuma and
Arthur Rosett,[1] commentators have argued that
cultural norms explain the Japanese tendency to
apologize when one's actions have resulted in the
significant injury of another and the U.S. inclination to
refrain from apologizing or to deny responsibility in the
very same situation.[2] The legal system in each country
jibes with the respective societal inclination or
disinclination to apologize. Recognizing that the apology
is an "important ingredient in resolving conflict,"[3]
Japanese legal institutions have reinforced the societal
use of the apology[4] and integrated it into their justice
system.[5] The culture of Japan is such that all of
society, including the bench and bar, expects and
demands an apology from a party causing harm or injury
to another. There is no such expectation stateside. The
societal inclination not to apologize in the U.S. setting is
matched (and perhaps shaped) by a legal culture that
advises clients not to issue an apology for fear that it
may be used against the apologizer[6] as an admission of
legal liability.[7] In the United States, the apology takes
a much "lower legal priority";[8] the "legal doctrine
based on apology" is simply "underdeveloped";[9] and
the disconnect between the apology and the legal system
continues.
This Article addresses the apology in civil dispute
settlement in Korea, Japan's neighbor across the East
Sea,[10] using the U.S.-Japan comparative discussion as
a helpful frame of reference. Part I provides the
necessary background on the meaning of the apology
and the leading commentary along the U.S.-Japan axis,
beginning with the work of Wagatsuma and Rosett.
Culture appears in this discussion in two regards. First, a
question arises as to whether the very meaning of the
apology as noted in the commentary reflects the U.S.
cultural orientation, or instead has universal application.
Second, some argue that cultural norms explain the
differences between the U.S. and Japanese use of the
apology. With this foundation in place, the discussion
turns to Korea. Part II begins with a brief description of
the relevant social and political developments in
contemporary Korea, and then, using the specific cultural
indicators that shape the apology in Japan, examines the
Korean tendency to apologize. The discussion notes that
although the indicators suggest that Korea might have an
approach quite similar or equal to that seen in Japan,
events and trends in contemporary Korea suggest that it
is too early to draw such a conclusion. Part III delves
further into the Korean apology and Korean law, as well
as the relationship between the two. This Part begins
with an introduction to what an apology means in Korea,
how it is delivered, and the legal culture's reaction to it.
The discussion then addresses the specific issue of the
legality of a courtordered apology in Korea, using the
U.S. and Japanese positions as comparative points of
reference, and invites discussion on how each
jurisdiction's approach might reflect its larger societal
culture.
In brief, the collective sources indicate that the
societal and legal setting in Korea appears at first glance
to be quite similar to that in Japan, and indeed, in some
respects the use of the apology in dispute settlement in
Korea is like the Japanese approach. Yet in other
respects, there are indications the Korean approach is
leaning to its U.S. counterpart. This Article provides an
introduction to the Korean perception of the apology, its
role in the resolution of civil disputes, and the legal
system's use of it in the settlement of claims.[11]
Footnotes
[1] Hiroshi Wagatsuma & Arthur Rosett, The
Implications of Apology: Law and Culture in Japan and
the United States, 20 Law & Soc'y Rev. 461 (1986).
[2] E.g., Jonathan R. Cohen, Advising Clients to
Apologize, 72 S. Cal. L. Rev. 1009, 1012-13 (1999)
[hereinafter Cohen, Advising Clients]; Jonathan R.
Cohen, Legislating Apology: The Pros and Cons, 70 U.
Cin. L. Rev. 819, 850 (2002) [hereinafter Cohen,
Legislating Apology]; Deborah Levi, Why Not Just
Apologize? How To Say You're Sorry in ADR, Alternatives
to High Cost Litig. 147, 164 (Sept. 2000).
[3] Wagatsuma & Rosett, supra note 1, at 493.
[4] John O. Haley, Comment: The Implications of
Apology, 20 Law & Soc'y Rev. 499, 506 (1986).
Volume 3 - Issue #04 - July 2006 - 4
 [5] John O. Haley, Apology and Pardon: Learning
From Japan, 41 Am. Behav. Scientist 842, 851 (1998).
[6] Another commentator has used the terms
"apologizer" and "apologizee" in the apology discourse.
Levi, supra note 2, at 163.
[7] See Wagatsuma & Rosett, supra note 1, at 479,
483, 485; see also V. Lee Hamilton & Joseph Sanders,
Everyday Justice: Responsibility and the Individual in
Japan and the United States 47 (1992); Cohen, Advising
Clients, supra note 2, at 1010; Erin Ann O'Hara &
Douglas Yarn, On Apology and Consilience, 77 Wash. L.
Rev. 1121, 1122 (2002).
[8] Wagatsuma & Rosett, supra note 1, at 493.
[9] Id. at 494.
[10] To all but Koreans, this body of water is known
as the Sea of Japan.
[11] The developing commentary might prove fruitful
for those interested in U.S.-Korea bilateral discussions,
especially given the increasing tension on matters
relating to, for example, the North Korean situation and
protection of U.S. intellectual property rights in Korea.
See Sang-Hun Choe, Gap Between Allies Widens over N.
Korea-Seoul Objects to Harsher U.S. Position, Int'l Herald
Trib., Dec. 9, 2005, at 3; Ilhyung Lee, Culturally-Based
Copyright Systems?: The U.S. and Korea in Conflict, 79
Wash. U. L.Q. 1103, 1155 (2001). Dispute resolution
professionals might also take note of the potential of the
apology in resolving disputes between Korean immigrants
stateside. Cf. Diane LeResche, A Comparison of the
American Mediation Process with a Korean-American
Harmony Restoration Process, 9 Mediation Q. 323
(1992).
ª Full article here
China, Taiwan and Hong Kong: Should They
be Part of a World-Wide Dispute Resolution
System?
Anthony Connerty, ARC Chambers,
anthonyconnerty@arc-chambers.com
Introduction
This paper poses some questions in relation to
international dispute resolution and China, Taiwan and
Hong Kong.
Should China, Taiwan and Hong Kong be part of a
world-wide dispute resolution system?
Or, put the question another way: what would a non-
Chinese party expect from China, Taiwan and Hong Kong
in the context of international dispute resolution? In
particular, international arbitration?
The question can be posed on a more basic level: my
UK client comes to me and says: "My company is
considering entering into a contract with a Chinese /
Taiwan / Hong Kong party. Of course, we always hope
that all will go well, but you never know. So we would
like to make some provision in the contract in case there
are problems. What should we do? We have been told
that there are various ways of dealing with disputes."
What follows is a consideration of different dispute
resolution processes and organisations. First, in the West
(England, Ireland, the United States and Europe). And
second, in the East (China, Taiwan and Hong Kong).
The article is based on a paper presented at The
Johnson Stokes & Master Annual Conference, 2004,
organised by the Cambridge University Asian Law and
Business Association.
ª Full article here
Developments in Arbitration Law and Practice
in Asia
David J. Howell, Fulbright & Jaworski, dhowell@fulbright.com
Introduction
Governments seeking to encourage international
commerce and investment well recognise the attraction
of a reliable dispute resolution regime. This recognition,
and the desire of commercial parties to international
contracts for a neutral and reliable method of dispute
resolution, has led to a remarkable confluence of
international arbitration law and practice.
ª Full article here
Chinese Courts: More of a Gamble than
Arbitration?
Cole A. Sternberg, The GRAMMY Foundation, coles@grammy.com
Introduction
Is the Chinese courtroom a viable choice in dispute
resolution? Many interested parties, including the United
States Department of Commerce,[1] major international
law firms,[2] and the Chinese culture itself,[3] prefer
other methods of resolution.[4] Thus, major corporations
doing business in the People's Republic of China ("PRC"
or "China") commonly use an arbitration clause in
contractual obligations.[5] The prevalence of these
clauses has in fact created an "international arbitration
culture."[6] The time, however, has come for
corporations and their lawyers to reconsider this clause
and possibly restructure or eliminate it in the future.[7]
This comment argues that arbitration is not
preferable to filing suit in China regarding international
commercial disputes.[8] Commercial arbitration is
Volume 3 - Issue #04 - July 2006 - 5
inherently ridden with flaws and problems that create a
structure inferior to the Chinese legal system.[9] This is
due to China's progression in numerous avenues of
corporate law[10] and the governmental and social
desire of the nation to become a viable marketplace for
the world.[11]
Part I provides an overview of commercial arbitration
and the major arbitration associations.[12] It continues
to provide a discussion generally of Chinese commercial
law and the structure of the Chinese legal system.[13]
Part II.A examines the supposed benefits of arbitration
and the flaws that underlie each of those attributes.[14]
The section discusses the roles that speed, control,
finality, neutrality, judicial review, and expenses play in
the use of arbitration clauses.[15] Part II.B continues to
examine the evolution of Chinese law and culture towards
a more business-friendly environment.[16] The section
discusses multiple arenas of progress in the Chinese
system, specifically regarding contract law and
intellectual property law.[17] It also examines the use of
the Chinese legal system by multinational corporations
and the presence of skilled national Chinese corporate
lawyers.[18]
Part III recommends alternative options for the
business world in its commercial contractual obligations
in China.[19] The comment contends that instead of
using arbitration clauses in commercial contracts,
corporations should consider the Chinese courts as a
viable alternative.[20] Part III.B advocates cooperation
between corporate arbitration customers and major
arbitration associations in the development of a more
effective arbitrational system that allows for an optional
appellate review.[21]
Previously published in 4 INT'L BUS. L.REV. 31
(2004).
Footnotes
[1] See UNITED STATES DEPARTMENT OF
COMMERCE, Dispute Avoidance and Dispute Resolution in
China, (2002) (providing guidance to resolving
commercial disputes in China and avoiding the Chinese
legal system), at
http://www.mac.doc.gov/China/Docs/DisputeResolutiona
ndDisputeAvoidance.htm (last visited Mar. 8, 2003).
[2] See COVINGTON & BURLING, A Primer on
International Arbitration I-IV, (May 1998) (discussing the
arbitration system and its positive attributes), at
http://www.cov.com/publications/Primer.asp (last visited
Mar. 8, 2003). But see Neal Stender, The Risks of
Technology Deregulation in China, THE CHINA BUS. REV.,
May-June 2002 [hereinafter Risks of Deregulation]
(analyzing the potential positive and negative
consequences of the modernization of the Chinese legal
system), available at
www.coudert.com/publications/default.asp?action=displa
yarticle&id=29 (last visited Mar. 8, 2003); Neal Stender
et al., Mainland Franchising: The Hong Kong Role, HONG
KONG GENERAL CHAMBER OF COMMERCE BULLETIN
(Sept. 2002) [hereinafter Mainland Franchising]
(demonstrating the easier access to the Chinese market
provided through its new laws related to franchising),
available at
www.coudert.com/publications/default.asp?action=displa
yarticle&id=65 (last visited Mar. 8, 2003). See generally,
Annabel Allen & Mei Yin Lim, An Overview of China Online
Music Copyright Cases (2002) (outlining the positive
actions taken by the Chinese government to prevent
piracy of intellectual property), at
http://www.perkinscoie.com/resource/intldocs/music.htm
(last visited Mar. 8, 2003).
[3] See, e.g., Philip J. McConnaughay, Rethinking the
Role of Law and Contracts in East-West Commercial
Relationships, 41 VA. J. INT'L L. 427, 440-449 (Winter
2001) (discussing contractual relationships and
comparing the commercial cultures of Eastern Asia
versus the United States and Western Europe).
[4] See, e.g., Charles L. Knapp, Taking Contracts
Private: The Quiet Revolution in Contract Law, 71
FORDHAM L. REV. 761, 776 (December 2002) (discussing
the growth in use of arbitration and its pervasiveness
throughout general contract law).
[5] See Christopher R. Drahozal, Commercial Norms,
Commercial Codes, and International Commercial
Arbitration, 33 VAND. J. TRANSNAT'L L. 79, 94 (January
2000) (stating that ninety percent of contracts have
arbitration clauses article).
[6] See id. (demonstrating the dominance of
arbitration as the chosen for of dispute resolution in
contractual obligations); See, e.g., INTERNATIONAL
DISPUTE RESOLUTION: TOWARDS AN INTERNATIONAL
ARBITRATION CULTURE, (Albert Jan van den Berg, ed.,
1998) (documenting a conference discussing the
movement of contractual law towards an "international
arbitration culture").
[7] See discussion infra Parts III.A-C. (recommending
the deletion of the arbitration clause from international
commercial disputes of high value, in favor of litigation in
the Chinese court system).
[8] See discussion infra Part III.A (suggesting use of
the Chinese legal system as the optimal option for
international commercial disputes in China).
[9] See discussion infra Part III (showing the
negative aspects of arbitration and demonstrating the
competence of the Chinese commercial law system).
[10] See discussion infra Part III.B (analyzing
numerous aspects of growth in the Chinese legal
system).
[11] See, e.g., Stender, Mainland Franchising, supra
note 3 (highlighting the government's desire to improve
its system and its current broad actions regarding
piracy).
[12] Discussion infra Part I.A.
Volume 3 - Issue #04 - July 2006 - 6
 [13] Discussion infra Part I.B.
[14] Discussion infra Part II.A.
[15] Discussion infra Parts II.A.1-7.
[16] Discussion infra Part II.B.
[17] Discussion infra Parts II.B.1-6.
[18] Discussion infra Parts II.B.5-6.
[19] Discussion infra Part III.
[20] Discussion infra Part III.A.
[21] Discussion infra Part III.C.
ª Full article here
The History and Current Status of Arbitration
in Thailand
Michael L.J. Winckless,
The Chartered Institute of Arbitrators Association, Bangkok,
winckless@asia.com
Introduction
To understand the current status and recent
development of arbitration in Thailand, it is helpful to
understand a little about its history. Although arbitration
was little used in Thailand prior to the enactment of the
first Thai Arbitration Act of 1987, it does have a 200
year-old history in the Kingdom. Arbitration made its first
appearance in the Three Great Seals Laws at the
beginning of the 19th century in the reign of Rama I. In
1923, Siam (as it then was) was party to the Geneva
Convention. The Civil Procedure Code of 1934 did
encompass arbitration. Thailand was one of the very first
countries to accede to the 1958 New York Convention.
Previously published in Asian DR, March 2004.
ª Full article here
Enforcement of Foreign Judgments and
Foreign Arbitral Awards in the Indian Civil
Jurisdiction
Anil Malhotra, Malhotra & Malhotra Associates,
malhotrasunilIndia@yahoo.co.in
Ranjit Malhotra, Malhotra & Malhotra Associates,
malhotraranjitindia@rediffmail.com
Introduction
With the increasing number of contentious and
litigated matters involving the Indian jurisdiction arising
daily, a common question which comes up at the end
relates to enforcement and execution of foreign
judgments and overseas arbitration awards when they
are sought to be implemented in India. It is at such a
stage that the successful litigant now ventures on Indian
soil before the competent fora for seeking the due relief
awarded to him. It is in that context that this modest
study seeks to set down the current position in law
whereby the possible solutions available under law can be
availed of in the Indian jurisdiction. The scope of this
paper is limited to disputes of a civil nature only.
Broadly, seeing to the current trends and practices,
the disputes in such like matters are broadly relating to
three jurisdictions. First and foremost is obviously
commercial litigation of all kinds in which decrees and /
or orders and judgments of foreign courts of different
countries are sought to be implemented and executed in
the Indian jurisdiction.
This leads us to the second category which invariably
revolves around commercial disputes but has been
subjected to other modes of alternative dispute
resolution i.e. arbitration proceedings, which have
resulted by virtue of an arbitration agreement because of
which parties did not go to court directly. Thirdly, there is
an increasing trend for seeking enforcement of orders
and judgments of foreign courts in family and
matrimonial matters. In all these three areas, there are
reported pronouncements of Indian courts in which
adjudicated disputes have helped to lay down a clear
position of law. The matters in each of these three
jurisdictions have been dealt with individually with the
respective enunciation of law in each of these quarters.
This paper was presented at the 72nd Biennial
Conference of the International Law Association at
Toronto, Canada from June 4 - 8, 2006.
ª Full article here
Volume 3 - Issue #04 - July 2006 - 7
 Judging the Effectiveness of Arbitration
through the Assessment of Compliance with and
Enforcement of International Arbitration Awards
Quentin Tannock, http://www.tannock.info/,
qtannock@hotmail.com
Introduction
This article suggests empirical research to track and
understand the ultimate fate of international commercial
arbitration awards. Such research would help achieve a
deeper understanding of the effectiveness of arbitration
in resolving international commercial disputes. Arbitration
awards may be complied with or may be wholly or partly
enforced or may be abandoned. The focus of the article is
on compliance with and enforcement of final arbitration
awards. [1] Collaborative comparative study of the
compliance with, abandonment of, enforcement of and
satisfaction of awards is suggested.
Improving timely voluntary compliance with
international arbitration awards would positively impact
the real efficacy of arbitration in resolving international
commercial disputes. Demonstrating that the majority of
award debtors comply with arbitral awards without the
need for subsequent, often prolonged, enforcement
proceedings would improve user confidence in arbitration
and would enhance the perception that the system
works. Yet our knowledge of whether arbitration awards
are complied with, and our understanding of why
compliance occurs, are scanty. Much of what we know is
largely based on anecdotal evidence. Most anecdotal
evidence available suggests that rates of spontaneous
compliance with final arbitration awards are good and
that abandonment of final awards is rare. Yet not all
instances of voluntary compliance with awards are
positive. For instance, compliance may mask serious
misconduct, including money-laundering. Problems with
our current understanding of compliance behaviour,
barriers to improving it and possible solutions are
outlined.
In respect of final arbitral awards not complied with,
success rates in relation to enforcement applications
made to domestic courts under the New York Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards 1958 ('NYC') are considered. The limited
empirical evidence available suggests that enforcement
success rates are excellent. Yet within this pool of
information there are indications that enforcement rates
in reported judgments are dropping and that
enforcement rates overall are worse than seen in surveys
of reported judgments. It is noted that not all refusals of
enforcement applications by domestic courts erode
confidence in the system of international commercial
arbitration. Indeed, the fact that enforcement
applications are regularly refused where awards are
unsound should improve party trust in the system of
arbitration. A brief mention is made of activities aimed at
improving enforcement rates in certain jurisdictions by
increasing domestic court familiarity with the NYC.
The article concludes that much more could be done
to improve our understanding of the ultimate fate of
arbitration awards. Detailed empirical study of
compliance with and abandonment of awards, together
with the assessment of success rates in both reported
and unreported enforcement applications, is overdue.
Empirical research of this behaviour would enable us to
better demonstrate the efficacy of arbitration. And
research results might usefully inform efforts to improve
the effectiveness of arbitration in resolving international
commercial disputes.
This article originally appeared in (2005) 21
Arbitration International 71 and is reprinted with kind
permission of that journal.
Footnote
[1] Voluntary or spontaneous compliance with, and
the enforcement of, interim awards is an important area,
left for another occasion. On this topic see Tijona Kojovic,
'Court Enforcement of Arbitrators' Decisions on
Provisional Relief: How Final is Provisional?' in (2001)
18(5) Journal of International Arbitration 511 and,
importantly, work by the ICCA ( e.g. see ICCA Congress
Series Number 11 (2002), pp. 82-179) and the United
Nations Commission on International Trade Law
(UNCITRAL)'s contributions.
ª Full article here
The Law of International Commercial
Arbitration in Singapore
Warren Bartholomew Chik,
Singapore Management University, Department of Law,
warrenchik@smu.edu.sg
Introduction
The Singapore dispute resolution landscape entered
the new millennium with the reconstruction of the dual
carriageway for arbitration. In 2002, the old road to
arbitral resolution of disputes (i.e., the old Arbitration Act
and the old International Arbitration Act) were
reconstructed and what emerged were two updated
legislations: the Arbitration Act and the International
Arbitration Act. At about the same time, the Singapore
International Arbitration Centre (SIAC) also diversified
with the introduction of a new set of Domestic Arbitration
Rules in 2001 to complement its previously singular set
of Arbitration Rules of 1991, which were formulated
mainly for the conduct of international arbitration.
Where the legislative architects and the executive
planners had gone, judicial lawmakers soon followed suit.
By 2002, the Singapore judiciary had had about ten
years of experience in the introduction of alternative
dispute resolution (ADR) mechanisms into the Singapore
legal system.[1] It was no surprise that it would embrace
arbitration as a viable alternative to litigation. As arbitral
issues exponentially arose with greater frequency in the
courts, so were court resources allocated to the
development of Singapore's own body of arbitration law.
Volume 3 - Issue #04 - July 2006 - 8
 This paper introduces the reader to the current
arbitration regime in Singapore with a general
introduction to the policy and legislative developments in
the area followed by an incisive look at significant judicial
decisions that have developed in the years after the Acts
were introduced.
Footnote
[1] See Asanthi Mendis, Marvin Bay & Shobha G.
Nair, "The Integration of Alternative Dispute Resolution
within the Subordinate Courts' Adjudication Process"
(2004) 16 Sing. Ac. L.J. 501.
ª Full article here
Japan Becomes a Friendly Place for
International Arbitration
David E. Wagoner, http://www.davidwagoner.com/,
email@davidwagoner.com
Introduction
Japan has changed its arbitration laws and rules to be
more harmonious with international business standards,
which could even lead to a JCAA arbitration in the United
States. The author also provides a suggested three-tier
ADR clause for transactions involving Japanese parties.
Reprinted with permission from the Dispute
Resolution Journal, vol. 61, no. 1 (Feb.- April 2006), a
publication of the American Arbitration Association.
ª Full article here
Adaptation of Petroleum Contract by Third
Party: An Overview
Dr. Abdullah Al Faruque,
Department of Law, University of Chittagong,
faruquecu@yahoo.com
Introduction
Petroleum contracts like many other the long-term
contracts need adaptation and renegotiation for various
reasons such as necessity of introducing flexibility,
ensuring a stable contractual relationship and achieving
the desired outcome from the project in the event of
changes of circumstance. The long duration of petroleum
contract reveals the reality that it can never be perfectly
drafted because the parties' foreseeability to predict all
the contingencies is limited.
The fact that petroleum contracts are negotiated
under conditions of considerable complexity and
uncertainty, it is not possible for the parties to specify in
advance every conceivable contingency in contract. The
limited foreseeability of the parties about all future
situations and anticipating the parties' rights and
obligations in those situations often influence the parties
to leave the certain terms of the petroleum contract open
and incomplete. Moreover, the transaction costs of
negotiating every possible future change and ex ante
specification of contract details may be too high to
discourage the parties to narrate the future contingencies
in detail and how to mitigate them. In such
circumstances, as the relationship continues, the parties
are assumed to make necessary adjustments to fill-up
some of the gaps to the contract or to change the initial
terms. In this way, the subsequent adaptation may
appear inevitable in order to develop these incomplete
terms of contracts, when complete and full information
becomes available in this regard.
Renegotiation and adaptation are well accepted
process for responding to change of circumstances or
filling gaps in the contract. Parties to the petroleum
contract usually reach acceptable solution through
renegotiation or adaptation either by virtue of contractual
provisions envisaged in this regard or mutual agreement
to negotiate on the basis of cooperation and mutual trust.
However, the parties' effort towards renegotiation or
adaptation to reach a mutual acceptable solution may not
be always successful or may be frustrated by lack of
cooperation. Against the background, the question of
contract adaptation by third party such as arbitration
tribunal or mediator or expert may arise.
An extended version of the article above will be
published this year (2006) in Asian International
Arbitration Journal, entitled "Possible Role of Arbitration
in Adaptation of Petroleum Contract by Third Party".
Contact the author for more information.
ª Full article here
Alternative Dispute Resolution in the Japanese
Legal Education Reform Era
Mayumi Saegusa, Institute of Asian Research, University of
British Columbia, mayumis@interchange.ubc.ca
Julian Dierkes, Institute of Asian Research, University of British
Columbia, j.dierkes@ubc.ca
Introduction
The current legal education reform in Japan
represents a massive exogenous institutional shock. The
implementation of this reform thus offers opportunities to
advance theory development within the neo-institutional
paradigm in sociology and organizational analysis as it
represents a case of the wholesale restructuring of an
entire organizational field, rather than the mere
institutionalization of organizational innovation or the de-
institutionalization of existing practices.
We propose to examine the teaching of alternative
dispute resolution (ADR) in Japanese legal education
before and after this exogenous shock in order to test the
prediction of pervasive isomorphism in the context of the
adoption of a foreign/international model (American law
schools) in a substantially different local institutional
Volume 3 - Issue #04 - July 2006 - 9
environment. This paper presents preliminary analyses of
processes that are very much in flux and occurring in
Japan as we write. While contributing broadly to a
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Volume 3 - Issue #04 - July 2006 - 10