Publish time: Wed May 31 10:05:36 CST 2017
On the afternoon of May 18 2017, the seminar themed “International Development of Arbitration-Mediation” organized by the Beijing Arbitration Commission / Beijing International Arbitration Center (the “BAC”) was successfully hosted at the BAC International Conference Hall.
As an “oriental experience” created in the Chinese arbitration practice, the “Arbitration-Mediation” is more and more adopted in foreign and international arbitration institutions, and has triggered academic concerns and practical exploration. In view of this, Mr. Malcolm Holmes QC, an Australian expert on arbitration and mediation, was invited in this seminar as the keynote speaker. Mr. Lu Song, Professor of the Foreign Affairs University and Arbitrator of the BAC, acted as the moderator. Mr. Malcolm Holms QC presented an impressive speech on “International Development of Arbitration-Mediation”.
At the beginning of the event, Mr. Lin Zhiwei, Secretary General of the BAC delivered a welcome address, and presented an introduction of the BAC practice of “Arb-Med” and the effects thereof. Mr. Lin pointed out that “with respect to dispute resolution, especially commercial dispute resolution, the best outcome is what satisfies both parties”.
Mr. Lin Zhiwei
Prof. Lu Song
Mr. Holmes started with the famous Alabama claims arbitration. Based on the clarification of the background of the facts, the summary of the disputed issues, and the introduction of the conduction of the Arbitration-Mediationprocess, he made a full and thorough analyses of functions of Arbitration-Mediation in arbitral proceedings. Mr. Holmes thought that the smooth arbitration proceedings in this case is primarily because of the proper conjunctionof mediation and arbitration. To be specific, “firstly, the conjunction of arbitration and mediation will create great flexibility; secondly, the timing of mediation during the arbitral proceedings is very important; thirdly, agreement from both the arbitral tribunal and the parties on the tribunal’s participation in the mediation; and fourthly, the arbitrator’s engagement in the mediation shall not affect the subsequent issuance of the arbitral award”.
Mr. Malcolm Holmes QC
Thereafter, Mr. Holmes shared the practice and development of “Arbitration-Mediation” in Sydney where his practice is conducted. Mr. Holmes started with the statutory basis of “Arbitration-Mediation”, primarily interpreted the confirmation on the mixed mechanism of “Arbitration-Mediation” in the Australian Arbitration Act 2010, and pointing out that “under the new Act 2010, the ‘Arb-Med’ has the following features: first, the parties shall give written consent on the arbitrator’s engagement in the mediation; second, the tribunal acting as mediator is free to make ex parte communication with each of the parties, and shall keep the information obtained therefrom confidential, unless otherwise agreed by the parties; third, the mediation can be terminated upon the agreement of the parties or the determination of the mediator, and either party is free to quit at its will; fourth, the parties shall submit their consent in writing either pre or post the mediation if the arbitrator continues to hear the arbitration case after the mediation conducted by the same arbitrator, so as to avoid any objection to the subsequent actions of the arbitrator; fifth, in the absence of the parties’ consent, new arbitrator(s) shall be appointed to finish the follow-ups; and sixth, after the termination of the mediation and before the resumption of the arbitration, the arbitrator shall disclose all the confidential information s/he obtained during the mediation”.
Mr. Malcolm Holmes QC
Mr. Holmes next moved to the another aspect and shared the experience of the Singapore Chamber of Maritime Arbitration (the “SCMA”). He highlighted the SCMA’s different practice: first, if the arbitral tribunal requested for mediation after the initiation of the arbitral proceedings, the arbitral proceedings must be suspended when the mediation initiates, which however will result in the double costs for both arbitration and mediation to be borne by the parties; and second, such suspension is compulsory rather than required by the tribunal, since the tribunal cannot decide whether the mediation is necessary, but the arbitral proceedings must be suspended. After the initiation of such compulsory mediation, the mediation must be finished within eight weeks, and if succeeded, the tribunal shall resume the arbitral proceedings and issue a post-mediation arbitral award.
The seminar
At the end of his speech, Mr. Holmes shared his practice of Arbitration-Mediation based on his own experience as arbitrator, and thereby further clarified the application and effects of “Arbitration-Mediation”. Mr. Holmes stressed that “I truly agree with Mr. Lin’s opinion that the best outcome of dispute resolution is what satisfies both parties”
In the Q&A section, the audience had in-depth communication and positive exchange of views with the speaker and the moderator, especially on issues such as the arbitrator’s disclosure post-mediation, the timing selection for Arbitration-Mediation, the influence of Arbitration-Mediation on arbitrators’ deliberation.
Q&A section
With the increasing complexity of commercial disputes, dispute resolution means have become more diversified, and the conjunction of arbitration and mediation is one of such examples. “Arbitration-Mediation” was created in the Chinese arbitration practice, and thereafter adopted by arbitration institutions over the world, which has attracted studies by more and more foreign and international arbitration institutions. The BAC expects to provide a platform of exchange to arbitration practitioners through such events, and thereby to seek the construction of diversified dispute resolution mechanism jointly with other colleagues within the industry. The BAC welcomes colleagues interested in diversified dispute resolution to continue to pay attention to and participate in colloquia and seminars organized by the BAC. You are welcome to log in the BAC’s website (www.bjac.org.cn) and WeChat platform for more information.