On 9-10 April 2018 the Faculty of Law, Stellenbosch University (dr. Theo Broodryk) and KU Leuven (prof. dr. Stefaan Voet) jointly organized the inagural International Conference on Consumer Redress. The purpose of the conference was to “discuss various local and international consumer redress mechanisms, including alternative dispute resolution methods and class actions, as a means to resolving consumer disputes.” The conference was attended by scholars from South-Africa, Europe, the US and Asia.
The findings of an empirical study on court mediation reform by Shahla Ali of the University of Hong Kong has recently been published by Edward Elgar. The book, Court Mediation Reform: Efficiency, Confidence and Perceptions of Justice, has been described as follows:
As judiciaries advance, exploring how court mediation programs can provide opportunities for party-directed reconciliation whilst ensuring access to formal legal channels requires careful investigation. Court Mediation Reform explores comparative empirical findings in order to examine the association between court mediation structure and perceptions of justice, efficiency and confidence in courts.
This unique study draws on an eighty-three person survey as well as case studies from ten global mediation jurisdictions including Australia, France, Hong Kong, India, and the United States. Given the highly contextual nature of court mediation programs, the book highlights the achievements, challenges and lessons learned in the implementation of mediation programs for general civil claims. In so doing, the study identifies that positive achievements are largely dependent on multiple factors including the functioning of the civil litigation system, the capacities of the mediators, safeguards against bias, participant education, and cultural and institutional support.
This book will be of interest to both scholars and practitioners of law, civil justice, mediation, comparative law and dispute resolution. It will also be of use to judiciaries and policy makers looking to advance court mediation programs.
Reviewers have noted the following about the study:
‘Shahla Ali’s work is an innovative meta-analysis of the trends in the institutionalization of mediation at the macro level. It has an ambitious approach that had not been attempted yet, and paves the way for other future research, as well as providing guidance to policy makers and professionals.’
– Luigi Cominelli, The University of Milan, Italy
‘Professor Shahla Ali has performed a valuable service for conflict resolution policy makers around the world. Providing diverse and mixed data reports of the uptake and resistance to court (and some private) mediation programs in ten different legal systems, she artfully surveys important legal, social and cultural differences in the uses and effectiveness of voluntary and mandatory mediation programmes. While some seek efficiency, others seek efficacy, through party-tailored solutions or regional integration dispute resolution schemes. Different programme motivations (and the varied role of lawyers) provide variation, not uniformity, in the use of mediation to resolve civil, family, labour and commercial disputes. A must-read for any dispute system designer, or court administrator or mediator.’
– Carrie Menkel-Meadow, University of California, Irvine and Georgetown University Law Center, US
‘Professor Ali’s book offers the most comprehensive, qualitative study and insights on Global Court Mediation I have encountered. It should be in the hands of every court in the world.’
– Judge Dorothy Nelson, United States Court of Appeals, 9th Circuit
An inaugural conference on Consumer Redress will take place in Stellenbosch, South Africa this April 2018. The conference will discuss various local and international consumer redress mechanisms, including ADR and class actions as a means of resolving consumer disputes. The aim is that through the conference’s comparative approach, insights may be developed to contribute to the advancement of local consumer redress mechanisms within the African consumer market. Further details may be found here.
The recent edition of the Asian Journal of Law and Society (Vol. 4, Issue 2, November 2017) featured a review of Governing Disasters: Engaging Local Populations in Humanitarian Relief. The review was written by Professor Yuka Kaneko of Kobe University, noted scholar of Asian law and disaster studies and co-editor of Asian Law in Disasters: Toward a Human-Centered Recovery. The review is re-printed here with the permission of the publisher:
“The highlight of this masterpiece by Dr Shahla F. Ali, Associate Professor on the Faculty of Law at the University of Hong Kong, is her comparative investigation into various forms of “constellation” between international, state, and local institutions in recent mega-disasters around the world. She applies a grand perspective, ranging from the developing countries highly dependent on international humanitarian aid, such as Indonesia (2004 Aceh Tsunami), Haiti (2010 Haitian Earthquake), and Myanmar (2008 Cyclone Nargis), to advanced economies that generally conduct disaster relief independently from international intervention, such as Japan (2011 East Japan Earthquake and Tsunami) and the US (2005 Hurricane Katrina). Throughout the thick volume, consisting of 13 chapters, the author maintains her fundamental concern—the building of local institutional capacity for better co-ordination in a timely and effective manner with international humanitarian support in the disaster emergency phases.
The methodological approach here is mainly a “meta-analysis”: she intensively reviewed many publicly accessible articles that were written about the emergency phase operations of the mega-disasters which she covered. In this sense, her main source of information is an abundance of secondary information, instead of her own surveys, except the questionnaire survey conducted with 69 humanitarian aid practitioners for the purpose of supporting the findings from the proceeding “meta-analysis,” which is summarized in Chapter 12. This basic dependency on secondary information is, however, not at all a weakness of this volume. To the contrary, this is the true contribution of this work, since a “meta-analysis” has been longawaited and highly necessary in the field of disaster management. Particularly in relation to emergency phases, most of the “academic” writings tend to be temporary reports containing the subjective observations of authors. Only a thorough review from chronological and comparative perspectives can yield true lessons from the phenomena of disaster operations.
In this significant attempt at “meta-analysis,” the author has successfully identified a number of valuable lessons. One remarkable suggestion is the necessity for leading international institutions to pay more attention to the importance of constructing a trusting relationship with existing local institutions, not only public administration, but also local communities, so as to better access existing local knowledge and resources. In this sense, various experimental attempts being implemented by international bodies, such as the cluster approach recently taken by the UNOCHA (Office for the Coordination of Humanitarian Affairs), will be in vain unless they pay more serious attention to improving the interface with the existing local system and knowledge.
If any shortcoming of this volume is to be pointed out, it is the short span of the disastermanagement phase that the author chose to deal with in this study. The author’s interest is directed only to the stage of emergency response for rescue and relief, without referring to the issues of humanitarian concerns connected with the succeeding stages of early recovery and reconstruction, even though the world’s humanitarian concern is expanding to the issues that arise in succeeding stages, after the international emergency aid is closed and various donors leave. Since the author’s attractive title of Governing Disasters stimulates the readers’ expectation of knowing more about what should happen in the succeeding stages of disaster governance, we trust that the author will respond to this expectation in her future work.
In summary, this volume is an excellent and challenging contribution, reflecting her energetic expertise as a lawyer, and offering an intensive and comprehensive “meta-analysis” of this emerging interdisciplinary field of disaster-management studies.”
Yuka KANEKO Kobe University
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.
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.
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.