Optional Mediation for Hong Kong Lehman Mini bond Investors

Investors of failed Lehman “mini bonds” have been encouraged to use mediation to settle their disputes with Hong Kong banks.  Thus far, 149 cases have been referred to the Hong Kong International Arbitration Association.  According to a recent report, many of the parties who have used the process have been satisfied with the outcome.

Approximately 43,000 investors in Hong Kong invested nearly 15.7 billion (U.S. 2.07 billion) in financial products associated with Lehman Brothers.  Most disputes arising from these investments involve charges that the banks selling such products gave wrong advice to customers or failed to disclose important information.  The elements of this charge include misrepresentation and reliance on advice given by bank representatives.

The Hong Kong Monetary Authority has agreed to pay for the costs of mediation for qualified investors.  The process is voluntary, and investors also have the right to take their case to trial.

Hong Kong Encourages Mediation in Civil Cases

Hong Kong’s new practice direction on mediation will come into effect in early January 2010.  This Hong Kong Civil Justice Reform provides for adverse cost sanctions against parties who unreasonably refuse to participate in mediation prior to trial.   Open questions remain as to how courts in Hong Kong will construe unreasonable refusal.

Once in force, on 1 January 2010, PD 31 will apply to all civil proceedings in the Court of First Instance and the District Court, except for proceedings in the Equal Opportunities List and tax recovery proceedings under the Inland Revenue Ordinance (Cap.112).