With the aim of providing a mechanism for the promotion of international commercial dispute resolution in the context of cross-border trade and development, in August of 2018, China’s Supreme People’s Court established its first International Commercial Expert Committee to provide advisory opinions and assist in the mediation of disputes. The Committee consists of 32 Chinese and foreign experts. A recent report noted that ‘the International Commercial Expert Committee is designed to ensure operation and promote adjudication of the International Commercial Court, and support to resolve international commercial disputes through arbitration, mediation, litigation and other diversified commercial dispute settlement methods.” According to Susan Finder, this Committee appears to be the “first of its nature within the Chinese justice system.”
After three years of active negotiation, UNCITRAL working group members successfully reached agreement on the formation of the United Nations Convention on International Settlement Agreements Resulting from Mediation. The treaty will be signed in Singapore in August 2019 and named the Singapore Convention on Mediation.
At present, when parties seek to enforce the outcomes of cross-border disputes, they have two existing means of recourse through the NY Convention (for international arbitration) and the Hague Convention (for cross-border litigation). However, until now, parties to cross-border mediation had limited if any means of enforcing cross-border settlements. With the Singapore Convention, mediation is now a viable option for parties seeking to resolve cross-border disputes.
Ms Sharon Ong, part of the Singapore delegation to UNCITRAL noted that at the final stages of negotiation, when a 2017 blizzard shut down the United Nations Headquarters where delegates had been meeting and squeezed into a nearby law firm’s conference room, “we resolved a lot of the issues that had been sticking points for many years. We all just came with a spirit of co-operation, so it was very collaborative and people were very open about things.” Mrs Morris-Sharma, chair of the UNCITRAL Working Group noted that “In any process that involves reaching a common understanding of how processes should be approached, delegations had to consider how this new system would fit in with their domestic processes… Thankfully I think we managed to strike a balance between the divergent views through the Singapore Convention.”
When ratified, the Convention will encourage commercial entities to resolve their disputes on the basis of party autonomy and agreement which mediation affords.
A China international arbitration court was recently established in Haikou, Hainan Island in July of 2018. The Court of International Arbitration in Hainan is the second to be established after the Shenzhen Court of International Arbitration was opened in January of this year. Hainan has recently been designated as a free trade zone. Shi Wen, head of the Hainan Arbitration Commission, noted that the new Court’s council members will be comprised of both Chinese and overseas arbitrators. The Court in Hainan has two centres, one focusing on maritime arbitration and the other on financial arbitration.
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