The Latest Innovation for Mediation in China From the Perspective of SCIA

Transcription

1 The Latest Innovation for Mediation in China From the Perspective of SCIA Dr. LIU Xiaochun Secretary-General Shenzhen Court of International Arbitration

2 Background Mediation in China: long history Commercial Mediation: bottleneck without an enforceable result, mediation may be reversed

3 Background SCIA (South China International Economic and Trade Arbitration Commission, also known as Shenzhen Court of International Arbitration) : innovation and practice of mediation

4 Background SCIA: the first arbitration institution in South China SCIA: the pioneer of the internationalization and modernization of arbitration in China. In 1984, SCIA listed foreign experts to its Panel of Arbitrators, making a precedent in China s arbitration history. In 1989, an arbitral award issued by a SCIA arbitral tribunal got recognized and enforced outside of Mainland China pursuant to the New York Convention, which is another precedent. In 2012, SCIA became the first arbitration institution in China to employ the statutory body model and corporate governance structure over one-third of its council members and arbitrators from outside of Mainland China. 232 arbitrators from 42 foreign jurisdictions in the present SCIA Panel of Arbitrators, accounted for 37.7% of total, making SCIA the most cosmopolitan arbitration institution in China.

5 SCIA s Mediation Practice Tribunal-facilitated Mediation Arb-Med-(Arb) Non-tribunal-facilitated mediation Med+Arb

6 Tribunal-facilitated Mediation During the course of the arbitration proceedings: Mediation may either be initiated by the parties, or by the arbitral tribunal with the consent of the parties. Where settlement is reached, the parties may request for a consent award in accordance with the terms of the settlement agreement where mediation fails, the arbitral tribunal shall proceed with the arbitration.

7 Tribunal-facilitated Mediation Advantage: efficient, to a large extent, granting a settlement agreement with enforceability by an arbitral award 20% of Arbitration cases are closed under such " oriental experience ". Controversy: for some arbitration cases, where the mediation fails, the independence, neutrality and impartiality of tribunal arbitrator(s) participating the mediation might be unduly influenced by expression or compromise made by parties in the course of mediation.

8 Tribunal-facilitated Mediation SCIA Arbitration Rules 2012 the parties shall agree on whether the arbitrator(s) participating the mediation shall resign from their office as arbitrator in the subsequent proceedings if the mediation fails Where mediation fails, any opinion, view or statement, and any proposal or proposition expressing acceptance or opposition by either party or by the arbitral tribunal in the process of mediation, cannot be invoked by either party as grounds for supporting any claim, defence or counterclaim in the subsequent arbitration proceedings, judicial proceedings, or any other proceedings.

9 Non-tribunal-faciliated mediation: In addition to Tribunal-faciliated mediation, SCIA has innovated more options for the parties, that is, non-tribunal-faciliated mediation, with emphasis on independence of mediation.

10 Non-tribunal-facilitated Mediation SCIA Arbitration Rules 2012 The parties may apply to SCIA Mediation Centre or other mediation institutions for mediation. Where a settlement agreement is reached, the parties may apply to the arbitral tribunal for rendering an arbitral award in accordance with the terms of the settlement agreement.

11 Non-tribunal-facilitated Mediation Innovations Model 1: SCIA Mediation +SCIA Arbitration Model 2: Chamber of Commerce + SCIA Arbitration Model 3: Exhibition Mediation+ SCIA Arbitration Model 4: Hong Kong Mediation+ Mainland China Arbitration Model 5: Four-in-one Model Model 6: Mediation Alliance

12 Non-tribunal-facilitated Mediation Model 1: SCIA Mediation Center +SCIA Arb Since 2008 Separate Mediation Rules 242 Panel mediators Mediation + Arbitration

13 Non-tribunal-facilitated Mediation Model 2: Chamber of Commerce Mediation+ SCIA Arb Shenzhen Association of Enterprises with Foreign Investment Mediation Center Since July 2007 Separate Mediation Rules Aiming at resolving foreign investment disputes. Mediation + SCIA Arbitration

14 Non-tribunal-facilitated Mediation Model 2: Chamber of Commerce Mediation+ SCIA Arbitration Guangdong General Chamber of Commerce Mediation Center Since Jan 2011 Separate Mediation Rules Aiming at resolving private enterprise disputes. Mediation + SCIA Arbitration

15 Non-tribunal-facilitated Mediation Model 3: Exhibition Mediation + SCIA Arb China Hi-Tech Fair Center for Dispute Resolution Since Oct Separate Mediation Rules To resolve IP disputes among Hi-Tech enterprises Mediation + SCIA Arbitration

16 Non-tribunal-facilitated Mediation Model 3: Exhibition Mediation + SCIA Arb China Import and Export Fair (the Canton Fair) Since Oct Rules for the Prevention and Resolution of Trade Dispute in Canton Fair issued by the Ministry of Commerce of the China Mediation + SCIA Arbitration

17 Non-tribunal-facilitated Mediation Model 3: Exhibition Mediation + SCIA Arb Canton Fair Mediation parties from 97 countries ( )

18 Non-tribunal-facilitated Mediation Model 4: HK Mediation + Mainland Arb Hong Kong Chinese Enterprises Association Mediation Commission Snice June 2009 HK mediation + SCIA Arbitration To resolve the cross-border commercial disputes

19 Non-tribunal-facilitated Mediation Model 5: The Four-in-one Model Mediation + Arbitration + Industry Self-discipline +Administrative Regulation SFDRC :For Capital Market Since 2013 Innitiated by CSRC and SCIA

20 Non-tribunal-facilitated Mediation Model 5: The Four-in-one Model SFDRC Council members: SCIA, Shenzhen Stock Exchange, Shenzhen Securities Association, Shenzhen Futures Association, Shenzhen Asset Management Association and Qianhai Equity Exchange.

21 Non-tribunal-facilitated Mediation Model 5: The Four-in-one Model SFDRC: Four-in-one Model Seminar

22 Non-tribunal-facilitated Mediation Model 5: The Four-in-one Model A dispute between a Securitires Dealer and one of its clients was resolved in SFDRC.

23 Non-tribunal-facilitated Mediation Model 6: Guangdong/HK/MACAU Mediation Alliance

24 Non-tribunal-facilitated Mediation Guangdong/HK/MACAU Mediation Alliance Founded in Qianhai,Shenzhen Since 2013 To integrate mediation source in Guangdong, Hong Kong and Macau area

25 Non-tribunal-facilitated Mediation GD/HK/Macau Mediation Alliance Members: SCIA Mediation Centre Shenzhen Securities and Futures Dispute Resolution Center China Foreign Trade Centre Guangdong General Commerce of Commerce Mediation Center Mediation Commission of Shenzhen Association of Enterprises with Foreign Investment Shenzhen General Chamber of Commerce Mediation Centre Hong Kong Chinese Enterprises AssociationCommercial Mediation Commission Hong Kong Joint Mediation Helpline Office HKIAC Hong Kong Mediation Council Hong Kong Institute of Arbitrators The Hong Kong Institute of Surveyors Hong Kong Mediation Centre CIArb East Asia Branch

26 The Merits of SCIA s Mediation Innovation Enforceable in mainland China Interpretation of the Supreme People's Court Concerning Some Issues on Application of the Arbitration Law of the PRC (2006), Article 28: Where a party requests non-enforcement of a consent arbitral award rendered on the basis of the reconciliation agreement between the parties, such a request shall not be supported by the court.

27 The Merits of SCIA s Mediation Innovation Enforceable outside mainland China a consent arbitral award between the parties could be recognized and enforced in 149 member countries pursuant to 1958 New York Convention in Hong Kong pursuant to Arrangements of the Supreme People's Court on the Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong SAR in Macau pursuant to Arrangement between the Mainland and the Macau SAR on Reciprocal Recognition and Enforcement of Arbitration Awards

28 The Merits of SCIA s Mediation Innovation Cost effective the prepaid mediation fees is greatly lower than litigation or arbitration fees. if the mediation does not succeed, parties only need to pay for the routine management fees and other actual cost, the rest of the prepaid mediation fees shall be returned to the parties. if the mediation succeeds, since the settlement agreement is a consent agreement by both parties, parties have a better chance to perform such agreement, thus expenses like arbitration fees, litigation fees and enforcement costs could be cut down. where the parties request to render a consent arbitral award based on the settlement agreement, the arbitration fees would be reducible, the parties will save at least 50% of arbitration fees.

29 China's Mediation : the trend The combination of independent mediation and independent arbitration: the route and trend for the future. Such combination should be an important approach to resolving disputes concerning Chinese parties. Based in Qianhai, Shenzhen, SCIA should be an ideal platform to resolving cross border commercial disputes.

30 Independence Impartiality Innovation Website: