Symposium on the Role of Lawyers in the Alternative Dispute Resolution
Publish time: Sat Sep 01 00:00:00 CST 2007 Contributor:
Symposium on the Role of Lawyers in the Alternative Dispute Resolution, sponsored by the Arbitration Legal Affairs Professional Commission of the Beijing Bar Association (the BBA), was held in the BAC’s international conference hall on August 29, 2007. Madam Wang Hongsong, Secretary General of the BAC, was invited as the keynote speaker. On the betterment of the Mediation Rules (Consultative Draft) launched by the BAC, veteran lawyers from the BBA and some managers of legal department from famous corporations conducted in-depth discussions.
Ms. Zhang Lixia, director of the Arbitration Legal Affairs Professional Commission of BBA, presided over the symposium. Mr. Gong Sha, vice-director of the BBA, Mr. Qian Lieyang, vice-Director of the Operational Guidance Commission of the BBA, Mr. Qian Lieyang and Mr. Chen Hongwu, vice-directors of the Arbitration Legal Affairs Professional Commission of the BBA attended this symposium. Applicants included more than 50 experienced lawyers and directors of the BBA commissions specialized in Corporation Law, International Commercial Law, Patent, Negotiable Instrument Law, Bidding & Auction, Medical Care, Media & Communication, Civil Law, Incorporation & Reorganization, and Real Estate. Some enterprise legal workers also attended the symposium on invitation, including China State Construction International Corporation, China Mobile, China South, International Trust and Investment Co. Ltd., etc.
Madam Wang Hongsong began with an introduction on the development of arbitration system, emerging problems, and the international trend in developing commercial arbitration. She focused on the original intention of and context for the development of the BAC Mediation Rules (Consultative Draft), as well as the connections between the foundations of the mediation system, the development of arbitration, and the business of lawyers. According to Madam Wang, a country’s competitiveness lies in cooperation and mutual trust among its citizens. The more advanced the credit system is, the faster an economy goes. As a market economy grows stronger, entities become more integrity-conscious, and the parties concerned are more inclined to peacefully and privately resolve a dispute. Nowadays, in the field of international commercial dispute resolution, more and more disputes are resolved by mediation across the US, Europe and some other developed countries and regions. Aiming to make the arbitration go global, the BAC has always been creative in promoting the growth of the multivariate dispute settlements in China. To enhance its international competitiveness for seamless compliance, the BAC launched the Mediation Rules timely. the BAC Mediation Rules draws much from advanced mediation systems while raises unique features. The principles include: separating the mediation procedure from arbitration procedure; freeing the range of mediation from arbitration clause and putting first the opinions of the parties concerned; the parties can mutually choose mediators and choice of mediators is not limited by the Panel of Mediators set by the BAC, separated from the Panel of Arbitrators; simplifying the mediation procedure to a more flexible and convenient one able to carry through the contract execution, paying the majority of mediation fees to the mediators directly to reduce the cost of the parties concerned at best. Madam Wang emphasized that the intention of Mediation Rules was to fulfill the requirements of the parties to resolve disputes through plural ways and help to build a harmonious, rational and civil culture of dispute resolution. It’s the BAC’s hope that the introduction of the world-class mediation system will contribute to the cultivation of domestic mediation specialists and the spreading of the Chinese way of mediation.
Member of the Council of Distinguished Advisors of the Straus Institute of Pepperdine University Law School, Madam Wang also introduced the experience of attending the Council meeting and auditing the training courses on mediation. Straus Institute for Dispute Resolution consists of professors and guest professors from North American Free Trade Area (NAFTA) and International Arbitral Tribunal. It is one of the biggest and most famous programs for dispute resolution in the world. Straus Institute for Dispute Resolution is dedicated to the research of multivariate dispute resolution, constantly providing new perspectives to improve jurisprudential education. In the past a couple of years, the BAC has been strengthening cooperation with Pepperdine University and Straus Institute for Dispute Resolution. The BAC and Straus Institute for Dispute Resolution have made a preliminary intent of next-step cooperation on holding a professional training program on dispute resolution in Beijing next March. Trainees of this program will receive authorized certificates of Pepperdine University Law School. All of the lawyers attending the symposium paid close attention to this cooperative program and applauded on it.
Mr. Gong Sha, deputy chairman of the BBA, brought forward several suggestions in response to the speech of Madam Wang. Firstly, construction of multivariate dispute resolution is the direction and is discussed across all fields in the organization. Secondly, Mediation is the mechanism of alleviating contradicts and it can decrease the negative influence utmost. Finally, multivariate dispute resolution enlarged the market for lawyers.
In the stage of open discussion, lawyers attending the symposium paid close attention to the BAC Mediation Rules (Consultative Draft). They made suggestions from different lights such as internationalization and practice of lawyer, etc. Mr. Yang Xiaochuan from BBA Arbitration professional Commission referred that the BAC Mediation Rules as a great mechanism innovation. The BAC Mediation Rules is just like ADR, which has been practiced for many years in the western countries. While it brought about a number of successful cases, China used to deny the mechanism out of door. Now it is of great importance for the BAC to launch the Mediation Rules as the first arbitration commission in China, especially given the over-governance on arbitration and Arbitration Law has not yet been modified. The significance of this breakthrough can never be emphasized too much. Yang gave advices on how to promote the Mediation Rules and mediation culture. First, the BAC Mediation Rules should be set as model rules just as the BAC Arbitration Rules. Both of its Chinese and English editions have to comply with the international conventions. Second, mediation and arbitration should be concurrent and independent from each other while given same stress. Finally, we have to assure the parties concerned the feasibility and credibility of the meditation mechanism, showing them its cost-efficiency and maneuverability. Yang also suggested that the model clause should be launched as soon as possible, so that lawyers can practise it better and introduce the rules to clients. According to Ms Tian Ruihua, Secretary-General of Trust Law Commission, the introduction of Mediation Rules by the BAC means to pave way for a legal culture different from arbitration and suit. A new mediation centre in the BAC will be a service platform for the parties concerned and will be helpful to protect the interest of both sides. Ms. Tan Jinghui, Arbitrator of the BAC from China State Construction International Corporation, said that the factors that enterprises take in consideration are time, cost and mediators. Among those the factor of mediators is the most important one, especially in the professional field. Tan also stated that Mediation Rules should emphasize that both sides shall undertake confidentiality obligations. Finally, Mr. Cui Bingquan, Mr. Qian Lieyang, and Mr. Chen Hongwu from BBA gave talks on the differences between the attitude to mediation of Eastern and Western culture, the feasibilityof Mediation Rules, and the traits of mediation by organizations. Mr. Zhan Chongwen and Mr. Li Haiyan from Incorporation & Reorganization Commission of BBA, Mr. Chen Zhihua from Medical Care Commission of BBA, and Mr. Jiang Jingchuan from Civil Law Commission of BBA made suggestions on the following subjects such as the principles of charges, cost rebate and confidentiality in Mediation Rules, qualification of mediators and setting of the panel of Mediators, etc. Madam Wang stated that the Mediation Rules will be improved further according to given suggestions before the BAC solicit advice for the second time.
Ms. Zhang Lixia, director of the Arbitration Legal Affairs Professional Commission of BBA, presided over the symposium. Mr. Gong Sha, vice-director of the BBA, Mr. Qian Lieyang, vice-Director of the Operational Guidance Commission of the BBA, Mr. Qian Lieyang and Mr. Chen Hongwu, vice-directors of the Arbitration Legal Affairs Professional Commission of the BBA attended this symposium. Applicants included more than 50 experienced lawyers and directors of the BBA commissions specialized in Corporation Law, International Commercial Law, Patent, Negotiable Instrument Law, Bidding & Auction, Medical Care, Media & Communication, Civil Law, Incorporation & Reorganization, and Real Estate. Some enterprise legal workers also attended the symposium on invitation, including China State Construction International Corporation, China Mobile, China South, International Trust and Investment Co. Ltd., etc.
Madam Wang Hongsong began with an introduction on the development of arbitration system, emerging problems, and the international trend in developing commercial arbitration. She focused on the original intention of and context for the development of the BAC Mediation Rules (Consultative Draft), as well as the connections between the foundations of the mediation system, the development of arbitration, and the business of lawyers. According to Madam Wang, a country’s competitiveness lies in cooperation and mutual trust among its citizens. The more advanced the credit system is, the faster an economy goes. As a market economy grows stronger, entities become more integrity-conscious, and the parties concerned are more inclined to peacefully and privately resolve a dispute. Nowadays, in the field of international commercial dispute resolution, more and more disputes are resolved by mediation across the US, Europe and some other developed countries and regions. Aiming to make the arbitration go global, the BAC has always been creative in promoting the growth of the multivariate dispute settlements in China. To enhance its international competitiveness for seamless compliance, the BAC launched the Mediation Rules timely. the BAC Mediation Rules draws much from advanced mediation systems while raises unique features. The principles include: separating the mediation procedure from arbitration procedure; freeing the range of mediation from arbitration clause and putting first the opinions of the parties concerned; the parties can mutually choose mediators and choice of mediators is not limited by the Panel of Mediators set by the BAC, separated from the Panel of Arbitrators; simplifying the mediation procedure to a more flexible and convenient one able to carry through the contract execution, paying the majority of mediation fees to the mediators directly to reduce the cost of the parties concerned at best. Madam Wang emphasized that the intention of Mediation Rules was to fulfill the requirements of the parties to resolve disputes through plural ways and help to build a harmonious, rational and civil culture of dispute resolution. It’s the BAC’s hope that the introduction of the world-class mediation system will contribute to the cultivation of domestic mediation specialists and the spreading of the Chinese way of mediation.
Member of the Council of Distinguished Advisors of the Straus Institute of Pepperdine University Law School, Madam Wang also introduced the experience of attending the Council meeting and auditing the training courses on mediation. Straus Institute for Dispute Resolution consists of professors and guest professors from North American Free Trade Area (NAFTA) and International Arbitral Tribunal. It is one of the biggest and most famous programs for dispute resolution in the world. Straus Institute for Dispute Resolution is dedicated to the research of multivariate dispute resolution, constantly providing new perspectives to improve jurisprudential education. In the past a couple of years, the BAC has been strengthening cooperation with Pepperdine University and Straus Institute for Dispute Resolution. The BAC and Straus Institute for Dispute Resolution have made a preliminary intent of next-step cooperation on holding a professional training program on dispute resolution in Beijing next March. Trainees of this program will receive authorized certificates of Pepperdine University Law School. All of the lawyers attending the symposium paid close attention to this cooperative program and applauded on it.
Mr. Gong Sha, deputy chairman of the BBA, brought forward several suggestions in response to the speech of Madam Wang. Firstly, construction of multivariate dispute resolution is the direction and is discussed across all fields in the organization. Secondly, Mediation is the mechanism of alleviating contradicts and it can decrease the negative influence utmost. Finally, multivariate dispute resolution enlarged the market for lawyers.
In the stage of open discussion, lawyers attending the symposium paid close attention to the BAC Mediation Rules (Consultative Draft). They made suggestions from different lights such as internationalization and practice of lawyer, etc. Mr. Yang Xiaochuan from BBA Arbitration professional Commission referred that the BAC Mediation Rules as a great mechanism innovation. The BAC Mediation Rules is just like ADR, which has been practiced for many years in the western countries. While it brought about a number of successful cases, China used to deny the mechanism out of door. Now it is of great importance for the BAC to launch the Mediation Rules as the first arbitration commission in China, especially given the over-governance on arbitration and Arbitration Law has not yet been modified. The significance of this breakthrough can never be emphasized too much. Yang gave advices on how to promote the Mediation Rules and mediation culture. First, the BAC Mediation Rules should be set as model rules just as the BAC Arbitration Rules. Both of its Chinese and English editions have to comply with the international conventions. Second, mediation and arbitration should be concurrent and independent from each other while given same stress. Finally, we have to assure the parties concerned the feasibility and credibility of the meditation mechanism, showing them its cost-efficiency and maneuverability. Yang also suggested that the model clause should be launched as soon as possible, so that lawyers can practise it better and introduce the rules to clients. According to Ms Tian Ruihua, Secretary-General of Trust Law Commission, the introduction of Mediation Rules by the BAC means to pave way for a legal culture different from arbitration and suit. A new mediation centre in the BAC will be a service platform for the parties concerned and will be helpful to protect the interest of both sides. Ms. Tan Jinghui, Arbitrator of the BAC from China State Construction International Corporation, said that the factors that enterprises take in consideration are time, cost and mediators. Among those the factor of mediators is the most important one, especially in the professional field. Tan also stated that Mediation Rules should emphasize that both sides shall undertake confidentiality obligations. Finally, Mr. Cui Bingquan, Mr. Qian Lieyang, and Mr. Chen Hongwu from BBA gave talks on the differences between the attitude to mediation of Eastern and Western culture, the feasibilityof Mediation Rules, and the traits of mediation by organizations. Mr. Zhan Chongwen and Mr. Li Haiyan from Incorporation & Reorganization Commission of BBA, Mr. Chen Zhihua from Medical Care Commission of BBA, and Mr. Jiang Jingchuan from Civil Law Commission of BBA made suggestions on the following subjects such as the principles of charges, cost rebate and confidentiality in Mediation Rules, qualification of mediators and setting of the panel of Mediators, etc. Madam Wang stated that the Mediation Rules will be improved further according to given suggestions before the BAC solicit advice for the second time.
Model Arbitration Clause
Arbitration Clause
All disputes arising from or in connection with this contract shall be submitted to Beijing Arbitration Commission / Beijing International Arbitration Center for arbitration in accordance with its rules of arbitration. The arbitral award is final and binding upon both parties.