About shahlaali

Assistant Professor at the University of Hong Kong.

Third Party Funding of Arbitration in Hong Kong

In June 2017, the Arbitration and Mediation Legislation (third party funding amendment) Ordinance 2017 was published.  It introduces the framework for third party funding (TPF) for arbitration and mediation in Hong Kong by introducing a new part 10A to the existing Arbitration Ordinance (Cap 609).  This legislation allows for TPF of arbitrations in Hong Kong in return for a financial benefit if the arbitration is successful. 

Some have suggested that the benefits of TPF include expanding financing options for those unable to fund an arbitration proceeding, while the potential risks include the possibility for improper influence over proceedings, lack of transparency, conflicts of interest and a possibly grey zone within which the aims of TPF may align with those of controversial vulture funds.  To address some of these concerns, the third party funding amendment requires disclosure of funding agreements and lawyers are prohibited from funding a party for whom they act.  Close oversight will be necessary to determine whether such provisions provide sufficient safeguards to overcome the potential risks of TPF.

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Arb-Med-Arb in Hong Kong and Singapore

Both Hong Kong and Singapore have developed provisions for the use of mediation in the context of arbitration proceedings where parties agree to this process with some slight variation.  In Singapore, the Arb-Med-Arb Protocol (“AMA Protocol”) is a joint initiative of the Singapore International Arbitration Centre (SIAC) and the Singapore International Mediation Centre (SIMC).  According to the Protocol, parties who commence arbitration can choose to stay the arbitration proceedings and attempt mediation under the SIMC.  If the mediation is successful, the agreement can then be referred back to the SIAC and recorded as a consent award.

In Hong Kong, the Arbitration Ordinance (“AO”) provides that Arb-Med-Arb may be conducted by the same arbitration tribunal at the request of the parties.  If the mediation is successful, the agreement is written up as a consent award.  If the mediation is not successful, the tribunal must disclose any confidential information revealed in private sessions to all parties.  More information about the process as practice in Hong Kong can be found here.

Belt & Road Arbitration and Mediation Linkages in China and Beyond

At present, over 68 countries and regions have endorsed China’s Belt and Road initiative which aims to strengthen trading ties among regions along the original silk road route.  As part of the initiative, various dispute resolution proposals are being put forward.  Within Mainland China, the Beijing Arbitration Commission (BAC) has entering into ‘institutional coalitions‘ with the Kuala Lumpur Regional Centre for Arbitration (KLRCA) and the Cairo Regional Centre for International Commercial Arbitration (CRCICA).  In addition, the BAC in collaboration with the Nairobi International Arbitration Centre has established a China-Africa Joint Arbitration Centre (CAJAC) in March of 2017.

Within Hong Kong, the International Academy of the Belt and Road released a Blue Book on the Dispute Resolution Mechanism for the Belt and Road which advocates mediation followed by arbitration.  Hong Kong arbitration institutions have addressed commercial disputes between trading partners along the Belt and Road and as addressed in a recent talk by the HK Secretary for Justice, stand to contribute to future cooperation in this area.

Interdisciplinary Mediation Research Symposium – 15 November 2017

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As reported in the SCMP, on November 15, Hong Kong Shue Yan University (HKSYU)  will host an Interdisciplinary Research Day highlighting insights from law, psychology, restorative justice and nuroscience on the practice of mediation.  Speakers include: Prof. Michelle LeBaron, Dr. Peter Reiner, Dr. Shahla Ali, Prof. Leung Hing Fung, and Prof. Dennis Wong.  Details of the event can be found here. The event is free and open to all.

Norms and Formal Law in China

In examining the interplay between norms and formal law in the context of Chinese mediation, a study published by the Journal of Legal Pluralism and Unofficial Law draws on a set of interviews and a case study conducted in three cities in China.  It contributes to the legal pluralism discourse by examining how mediation in China, traditionally an ‘unofficial’ form of legal practice is now becoming ‘official’ through state sanction and how mediators interact with traditional Confucian normative orders in the context of changing social priorities and values.

ADR Developments in Singapore: 3rd party funding and mediation enforcement

This January, the Singapore Parliament passed into law the Civil Law Amendment Bill – allowing third party funding for cases involving international commercial arbitration and the Mediation Act supporting the enforcement of mediated settlements.  Under the Mediation Act, parties may apply for settlements reached through mediation to be enforced as court orders, and may also apply to stay any court proceedings applying to the same dispute. imgres More information can be found here:

 

New book – Governing Disasters: Engaging Local Populations in Humanitarian Relief

A new book addressing the role of collaborative governance in disaster response has been published by Cambridge University Press: S. Ali, Governing Disasters: Engaging Local Populations in Humanitarian Relief, June 2016, 240 pp.gd

Description: With growing awareness of the devastation caused by major natural disasters, alongside integration of governance and technology networks, the parameters of humanitarian aid are becoming more global. At the same time, humanitarian instruments are increasingly recognizing the centrality of local participation. Drawing on six case studies and a survey of 69 members of the relief sector, this book suggests that the key to the efficacy of post-disaster recovery is the primacy given to local actors in the management, direction and design of relief programs. Where local partnership and knowledge generation and application is ongoing, cohesive, meaningful and inclusive, disaster relief efforts are more targeted, cost-effective, efficient and timely. Governing Disasters: Engaging Local Populations in Humanitarian Relief examines the interplay between law, governance and collaborative decision making with international, state, private sector and community actors in order to understand the dynamics of a global decentralized yet coordinated process of post-disaster humanitarian assistance.
  • Provides a comprehensive review of community engagement with international, state and private entities in responding to natural disasters
  • Identifies best practices in locally-engaged disaster governance through comparative analysis of survey data and disaster recovery case studies in six jurisdictions
  • Synthesizes findings in the form of law and policy recommendations
Reviews & endorsements:
Elegantly weaving theory with rich contextual studies, Professor Shahla Ali’s Governing Disasters elevates the study of law and disasters [by] setting agendas both for scholarship and policy.
  David D. Caron, King’s College London
Community involvement and public-private partnership are sometimes written off as popular buzzwords. This important and carefully documented book shows, however, that they can make a major difference in the effectiveness of disaster relief.
   Daniel Farber, University of California, Berkeley
In drawing on the new governance literature to explore the role of local actors in post-disaster humanitarian relief, Professor Ali generates important insights into the careful equilibrium of decentralization and coordination that is necessary for successful multi-level governance.
  Robert B. Ahdieh, Emory University, Atlanta
Offers a rich and comparative analysis of local participation in disaster response and recovery in six recent disasters. At a time when the international humanitarian community is stretched thin by multiple large-scale disasters, and the twin forces of conflict and larger natural disasters place millions in need of humanitarian assistance globally, there has never been a more apt time to consider seriously how best to support and enhance the capacities of local communities to respond to and manage disaster response. Governments, scholars and humanitarian and development practitioners will benefit enormously from reviewing the actual experience of local community participation in disaster recovery expertly examined in this work.
  Vincenzo Bollettino, Harvard Humanitarian Initiative