HKU Law's LLM (ADR): Newsletter (Spring 2023)

HKU Law’s LLM(ADR) programme has recently distributed its Spring 2023 Newsletter. It can be accessed here.

HKU Law's LLM (ADR): Newsletter (June 2022)

A NOTE OF THANKS

We are grateful to our students, alumni and wider community for its continued support of the LLM Arbitration and Dispute Resolution Program described as “a unique and internationalized programme with well-developed curriculum, diverse student body … high quality teachers… [and] professional accreditation (i.e., CIArb, HKMAAL) and strong connections with highly regarded arbitral institutions.” We thank Sarah Grimmer for her invaluable contributions to our Arbitration law teaching this past year and wish her well in Singapore. We also thank Mr. Cameron Sim, Ms. Elizabeth Chan, Dr. James Chiu, Ms. Sabrina Ho, Ms. Jojo Fan and Mr. Jonathan Wong for their public talks. We value your input and support. Please visit our website to learn more.

RECENT ACTIVITIES

Conflict Prevention & Peacebuilding: The LLM program was delighted by the active participation of students in the Preventative Law: Approaches to Conflict Prevention and Resolution course last term. Student explored the dynamics of peace building and sustainable community engagement through class presentations, dialogue process, discussions with pe and research papers.

Vis East Achievements: We celebrate our highly ranked Willem C. Vis (East) Moot team which received Honorable Mentions for the Best Written Memorandum for Claimant. Paul and Kai Tik received Honorable Mentions for the Best Individual Oral Advocate. Many thanks to Mr. Michal Čáp (lead coach) and Professor Shahla Ali, and Olga Boltenko for coaching support.

Faculty Interview

The LLM Arbitration and Dispute Resolution program director was recently interviewed for the Faculty website. A link to the interview can be found here: https://youtu.be/55cPWvZKet0

RECENT PUBLICATIONS
  James D. Fry

Deconstructing Dud Disarmament Disputes Journal of Conflict and Security Law, Volume 26, Issue 1, Spring 2021, Pages 185-218 [read more] Olga Boltenko Balancing the Protection of Foreign Investors and States Responses in the Post-Pandemic World”. [read more] Shahla Ali Decentralized Global Legal Ordering Michigan State Law Review, Forthcoming University of Hong Kong Faculty of Law Research Paper No. 2022/11 [read more] Anselmo, R., & Weixia, G. (2021). Multi-Tier Approaches to the Resolution of International Disputes Cambridge University Press. [read more] Weixia Gu The Global Rise of International Commercial Courts: Typology and Power Dynamics Chicago Journal of International Law [read more] Angela Zhang Improving Dispute Resolution in Two-Sided Platforms: The Case of Review Blackmail [read more] HIGHLIGHTS

Reyes and Lui on The Use of Conciliation and Litigation by the Hong Kong Equal Opportunities Commission (EOC) (new book chapter)

“The Use of Conciliation and Litigation by the Hong Kong Equal Opportunities Commission (EOC)”

Anselmo Reyes and Wilson Lui (BA&LLB 2019)

in Anselmo Reyes and Weixia Gu (eds), Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study (Cambridge University Press 2021), pp 232–268

Abstract: The Equal Opportunities Commission (EOC), established in 1996, investigates and seeks to resolve disputes arising in connection with Hong Kong’s anti-discrimination ordinances. Its complaint-handling process involves recourse to conciliation, investigation and litigation. The EOC thus provides a hybrid multi-tier dispute resolution service. If conciliation fails, the EOC may investigate and eventually assist a person to pursue in court a complaint which is thought to merit further action. This chapter asks how the EOC can maintain neutrality and confidentiality when discharging its respective functions of conciliator, investigator and litigator in the same matter, without becoming entangled in actual or potential conflicts of interest. It examines how similar institutions in the United States, the United Kingdom and elsewhere have sought (or not) to resolve the tension in their roles when handling discrimination complaints. It then discusses recommendations and their underlying rationale for reconciling the EOC’s seemingly conflicting roles, in order to effectively resolve discrimination complaints and bridge the long-standing gap in public perception.

Weixia Gu on Multi-Tier Approaches and Global Dispute Resolution (Japanese Yearbook of International Law)

"Multi-Tier Approaches and Global Dispute Resolution"

Weixia Gu
Japanese Yearbook of International Law
Published in 2020, Volume 63, pp. 147-166

Introduction: There are many ways disputes in the commercial world can arise, and as many ways they can be resolved.   Just as different methods of alternative dispute methods have attracted more and more attention.

     The Queen Mary University of London and White & Case LLP 2018 International Arbitration Survey ("QMUL Survey 2018") findings reveal that "there has been a significant increase in the combination of arbitration with ADR.   Nearly half of the participants to the 2018 survey preferred the hybrid approach, as compared to just 35 percent in the 2015 survey findings.   This is unsurprising in view of the benefits of using mediation as a prerequisite to starting arbitration.   The mediation step allows for a "cooling off" period for parties, thereby avoiding the escalation of disputes for adversarial resolution as an immediate recourse.   It also has a filtering effect: only the "truly" contentious issues in dispute proceed for resolution by arbitration.   Overall, thus, the mediation prerequisite increases the prospects of preserving the parties' commercial relationship.  Indeed, the QMUL Survey 2018 findings support the general dispute-avoidance mentality of business parties.  Within the in-house counsel sub-group, it is reported that there is "a clear preference" for the twinning of international arbitration and ADR (60 percent) over international arbitration as a stand-alone mechanism.

        As the 2018 Pound Conference Report further reveals, there is now a global interest in using mixed mode of dispute resolution.  Hybrid dispute resolution usually features a combination of mediation and arbitration into a dispute resolution framework with multiple stages.  These multi-layered modes of dispute resolution can thus be called "multi-tier dispute resolution" ("MDR").  However, despite its widespread popularity, the development of MDR has followed different pathways around the world.  This essay aims to provide a global survey of the development of MDR.  The essay comes in four parts.  Part I would first introduce the concept and procedure of MDR.  Part II then explores how MDR is developed around the world from a regulatory perspective.   Afterwards, Part III would turn to examine the specific situation in some of the world's most prominent legal jurisdictions in the East and West.  Last but not the least, Part IV provides some comparative observations on the trend in the global future of MDR.   

New Book by Weixia Gu: Dispute Resolution in China: Litigation, Arbitration, Mediation and their Interactions (Routledge)

Dispute Resolution in China:Litigation, Arbitration, Mediation and their Interactions
Weixia Gu

Routledge

Published in February 2021, 288 pp.

Description: China's ever-expanding commercial influence has attracted global attention on how its civil and commercial disputes are resolved. This compelling new book, Dispute Resolution in China, offers a detailed examination of the elements in the Chinese legal system and the relevant reforms to the multiplicity of approaches to civil and commercial disputes in China today. This book reveals how civil litigation, commercial arbitration, mediation, and their hybrid dispute resolution have distinctly responded to, reformed, and developed in the context of China’s transformational economic growth, societal development, and international interaction in the last two decades. It situates these developments and continued experimentation within a unique hybrid of empirical, contextual, and comparative analytical framework, while paving productive pathways towards the future.

    This book argues that, rather than being a legal project, China’s civil and commercial dispute resolution system is essentially a social development project, which distinguishes the Chinese approach to civil justice reform from contemporary civil justice movements elsewhere. Among the primary methods of dispute resolution, commercial arbitration in China today uniquely transcending the traditional socio-political constraints, its reform has developed in favor of market-oriented considerations and shaped by China’s socio-economic dynamics and internationalization needs. By contrast, civil litigation and mediation being more instrumentalist in nature, their reform is socio-politically embedded and continues to prioritize social stability. This book also shines a fresh light on comparative assessments of top-down and bottom-up changes in China’s dispute resolution discourse, as well as on how China speaks to international dispute resolution systems. Original and rich in its analysis, this book will be essential reading and invaluable reference tool for scholars with a focus on Chinese law, comparative and international dispute resolution, and on broader legal, institutional, economic, social, political and cultural dimensions of dispute resolution development.

Praise: 

"One of the best works on dispute resolution in China, this timely and insightful study offers an unrivalled account of the changing landscape of commercial dispute resolution in China. Against the background of China's ever-expanding commercial influence, it offers an invaluable and impressively informed guide to the multiplicity of approaches to civil disputes in China, formal and informal, and shines a fresh light on topics which often seem mysterious, and are often misunderstood. Original and rich in its analysis, it is stimulating reading for anyone interested in comparative law, civil procedure, and in how legal institutions are shaped by their social, political and economic context. The author deserves congratulations on a fascinating work, which is scholarly and absorbing and assured of its place in the literature."

    -Richard Fentiman QC (Cambridge Law Faculty) – Professor of Private International Law and Former Dean

"This is an impressive study of dispute resolution in China covering litigation, arbitration, mediation and mixed processes. A particular strength is its extensive research and its academic contribution and impact on the topic of civil and commercial dispute resolution in China from a comparative, empirical and contextual perspective. There are also law and society and law and economics assessments. This is most certainly now the most comprehensive and definitive analysis on the topic."

  -Loukas Mistelis (Queen Mary University of London School of Law) – Clive M Schmitthoff Professor of Transnational Commercial Law and Arbitration

"Professor Gu has produced the state-of the-art study of civil dispute resolution in China. Covering the entire dynamic landscape, it chronicles changing developments and continued experimentation, while providing an intelligent roadmap for productive reforms. The book will be essential reading for China law scholars, but also for practitioners and business leaders who work with Chinese partners."

  -Tom Ginsburg (Chicago Law School) – Leo Spitz Professor of International Law and Member of the American Academy of Arts and Sciences

"Gu’s book is a must for scholars and practitioners who really want to understand the development on commercial dispute resolution in China: insightful, resourceful, exhaustive. One of the best works on dispute resolution in China."

  -Franco Ferrari (NYU Law School) – Professor of Law and Director, Center for Transnational Litigation, Arbitration and Commercial Law

"One of the finest works on dispute resolution in China, this book is essential reading for everyone interested in the evolution of civil and commercial dispute resolution in China. The　book blends　empirical analysis with a thorough understanding of the economic and social transformation of dispute resolution　in China. It highlights China’s salient divergence from international dispute resolution systems. Gu’s outstanding book is both a　compelling manifesto and an　indispensable　pathway into the future."

  -Leon Trakman (UNSW Law School) – Professor of Law and Former Dean

"Dr Weixia Gu has produced a highly valuable work that examines the current regime for resolution of civil commercial disputes in China. Dr Gu goes well beyond the existing English language treatments of the subject to fully examine the legal principles, literature and practice relating to dispute resolution in China. The book also considers the topic through the prism of law and development and the immense recent changes in Chinese society.　 It is an impressive book."

   -Richard Garnett (Melbourne Law School) – Professor of Law

"Professor Gu’s Dispute Resolution in China: Litigation, Arbitration, Mediation and their Cross-Interactions is an outstanding study of how civil litigation, commercial arbitration, and mediation have responded to, reformed, and developed in the context of China’s transformational economic growth and societal development of the last two decades. Gu analyzes the different degrees to which mediation and litigation remain politicized and continue to prioritize social stability, often at the expense of rights; the extent to which civil litigation has evolved to address public interest objectives, especially with respect to environmental and consumer issues; and the way in which commercial arbitration, uniquely among the three principal methods of dispute resolution, has transcended traditional socio-political constraints in favor of market-driven international standards, with the support of the Chinese judiciary. Gu offers invaluable comparative assessments of "top down" versus "bottom up" changes in China’s dispute resolution discourse, along with compelling empirical analyses in support of her arguments. An indispensable comprehensive study, Gu’s book makes an exceptional contribution to the literature on contemporary dispute resolution　in China. It is a "must read" for legal scholars, social scientists, lawyers, policymakers and business leaders alike who focus on Chinese law and dispute resolution."

  -Philip J. McConnaughay (Peking University School of Transnational Law) – Dean and Professor of Law

"Professor Gu’s wonderful study of dispute resolution processes in China explores important issues of procedural law, including the substantial reforms attempted in recent years in response to the economic transformation and social changes that have been taking place in China. The insightful analysis offered by Professor Gu locates developments in the legal and institutional framework of civil litigation, arbitration, mediation and mixed dispute resolution in their social and cultural contexts. Among other key themes, this important book argues that the system which has emerged is more a project of social transformation than it is of legal development, especially in areas of dispute resolution that are less directly linked to the functioning of the economic system."

  -Michael Palmer (University of London School of Oriental and African Studies) – Emeritus Professor of Law and Former Head

Expanding Access to Financial Protection (Shahla Ali Profiled in HKU's KE Newsletter)

"Expanding Access to Financial Protection"
KE Newsletter - Issue 18, April 2020
Justice should rely on universal participation and should be accessible to all.In a boost for investor protection, the Hong Kong Financial Dispute Resolution Centre (FDRC) adopted new rules in January 2018 that enabled consumers to claim more and benefit from a longer window for lodging claims. The new rules have led to many more consumer claims being resolved and have also strengthened the FDRC’s role by enhancing access to its services and increasing the amounts claimable. These policy changes have also enhanced Hong Kong’s reputation as a global financial centre.
    Research conducted by Professor Shahla Ali of the Department of Law directly impacted the FDRC’s ‘Proposal to Enhance the Financial Dispute Resolution Scheme’, which was launched in October 2016, and the FDRC’s consultation conclusions, which were published in August 2017. In these conclusions, the FDRC adopted three key reforms. The first was to increase the maximum claimable amount to HK$1,000,000 (up from HK$500,000 in the original rules). The second was to extend the time limit for lodging a claim to 24 months (up from 12 months) from the date of purchase or the date of first knowledge of the loss, whichever is later. Thirdly, the FDRC expanded its coverage to small and medium-sized enterprises (SMEs) that have a relationship with financial institutions.

     Professor Ali proposed six principles for reforming financial dispute resolution following the global financial crisis of 2008, which saw many investors in Hong Kong and beyond suffer significant losses, many of which were attributed to a lack of transparency in the financial system and limited protection for investors. The principles were independence, impartiality, accessibility, efficiency, fairness and equity emerging from the view that justice should rely on universal participation and should be accessible to all. 

     “In 2008, there was no systematic mechanism to handle consumer financial claims against banking institutions in many jurisdictions including Hong Kong,” said Professor Ali. “Retirees and others had to search for recourse. This was true in many other parts of the world. Why not learn from one another about the principles at play, share what is working and build stronger institutions?” ... Click here to read the full text.  

Gu Weixia on the Key Ingredients for Successful Reform of International Commercial Arbitration in the Asia (new book chapter)

"Reflections on the Key Ingredients for Successful Reform of International Commercial Arbitration in the Asia"
Gu Weixia
in Lei Chen & André Janssen (eds), Dispute Resolution in China, Europe and World (Springer 2020), pp.131-152

Abstract: Many states have recognized the economic importance of being 'arbitration-friendly', and many have naturally advertised themselves as such. Beyond the catch phrase lie these questions: What arbitration regimes are sufficiently 'arbitration-friendly'? Looking into the past, is there a standard pathway of arbitration reform in the Asia Pacific? Or are there divergent modes of development? To what degree have political, legal, social, cultural and other factors influenced a jurisdiction's ability to replicate successful reform patterns? This chapter looks into the development of arbitration regimes across the Asia Pacific, and aims to reflect on key ingredients for successful arbitration reform in the East. Among the Asia Pacific jurisdictions, some have reached greater success and have attracted many more commercial disputes within and outside the region. Others have been less successful, even with efforts to substantially reform the arbitration laws and institutions. To examine arbitration reforms and outcomes of Asia Pacific jurisdictions, this chapter relies on a hypothetical model of arbitration reform. This model is then tested again the reform pathways undertaken by 12 Asia Pacific jurisdictions for accuracy as a 'formula' for arbitration reform in the region.

Weixia Gu on the Dynamics of International Dispute Resolution Business in the Belt and Road (Proceedings of the ASIL Annual Meeting)

"The Dynamics of International Dispute Resolution Business in the Belt and Road"
Weixia Gu

Proceedings of the ASIL Annual Meeting
2019, Vol 113, pp. 370-374

Published on 31 Dec 2019

Introduction: China's Belt and Road Initiative (BRI) ambitiously aspires toward expanding regional markets and facilitating economic integration across Asia and Europe. It has been regarded as a game-changer on the landscape of dispute resolution market, triggering a proliferation of "adjudication business." This report examines the dynamics of international dispute resolution in context of the BRI, discussed from the three following perspectives: (1) BRI investors and disputants; (2) three major means of dispute resolution on offer; and (3) institutions involved.

Weixia Gu on Belt and Road Dispute Resolution: New Development Trends (new article)

“Belt and Road Dispute Resolution: New Development Trends”
in Ying-jeou Ma (ed), Chinese (Taiwan) Yearbook of International Law and Affairs, December 2019, Volume 36, pp. 150-169.
Gu Weixia

Introduction: The Belt and Road Initiative (BRI) was first proposed by President Xi Jinping in 2013 with a view to promoting regional economic and infrastructural cooperation in Asia, Europe and the Middle East. The BRI is a two-faceted cross-border economic strategy, consisting of the "Silk Road Economic Belt" and the 21st Century Maritime Silk Road." It engages the joint effort and participation of sixty-five countries in the world. As outlined by China's National Development and Reform Commission (NDRC) in its report dated March 28, 2015, the BRI has five major goals: enhancing policy coordination, facilitating connectivity, removing trade barriers, facilitating financial integration, and building people-to-people bonds.   With the dual boost to land and maritime trade and business within the Belt and Road Nations, the BRI fosters market integration in the Asian region and forges new economic ties between China and the global economy.

Professor Shahla Ali Awarded HKU Faculty Knowledge Exchange Award 2019

Congratulations to Professor Shahla Ali who was awarded the University of Hong Kong's Faculty Knowledge Exchange (KE) Award 2019 (Faculty of Law). The award recognises the impact her research has had on access to consumer financial dispute resolution in Hong Kong in the interests of consumers. The impact from "Increasing Access to Consumer Financial Dispute Resolution in Hong Kong" ("增加香港消費者金融糾紛解決的可及性​") was summarised as follows:

"Dr. Shahla Ali’s research supported the enhancement of access to justice for injured financial investors in Hong Kong by contributing to a revised set of rules for the Hong Kong Financial Dispute Resolution Centre (“FDRC”). In January 2018, the FDRC adopted new rules enhancing services through raising the maximum claimable amount for aggrieved consumers from HK$500,000 to HK$1,000,000 and extending the limitation period from 12 to 24 months. These rules changes have resulted in expanded accessibility and strengthened investor protection in Hong Kong, reinforcing Hong Kong's status as an international financial centre. Her research also informed consumer financial policy design in Mainland China and Egypt."

     The Faculty KE Awards were introduced in 2011 in order to recognise each Faculty’s outstanding work demonstrating economic, social or cultural benefit to the community, business/industry, or partner organisations. Nominations are considered by an Ad Hoc Faculty KE Award Selection Committee whose members include the Dean (chair), the Faculty representative serving on the KE Working Group, one of the Associate Directors of the Knowledge Exchange Office (KEO), and a member from outside the University. The selection criteria include evidence of the KE project’s link with excellence in research or in teaching & learning of HKU; evidence of an effective engagement process with the non-academic sector(s); and evidence of demonstrable benefits to the community, business/industry, or partner organisations.

New Book: Mediation and ADR Confidentiality in Hong Kong (Gary Meggitt)

Mediation and ADR Confidentiality in Hong Kong

Gary Meggitt

Wildy, Simmonds and Hill Publishing

March 2019, 288 pp

Description: It is generally accepted in Hong Kong and many other jurisdictions that mediation is ‘confidential’. This book examines the three non-statutory components of mediation confidentiality in Hong Kong:-

• contractual or equitable confidentiality;
• the without prejudice doctrine;
• and legal professional privilege – together with the Hong Kong Mediation Ordinance.  

This study looks at the protection which each of the components and the Ordinance affords to the participants in mediation and the deficiencies in the same.

     The author argues that the justification for a specific mediation confidentiality may be found in the very nature and philosophy of mediation itself and, in particular, its distinctive empowerment of the parties and its independence from the litigation process. It is contended that, to the extent that they share these qualities, other forms of ADR should be similarly protected.

    This book will interest and be useful to academics, students and legal practitioners interested in mediation and ADR in Hong Kong and elsewhere. The thesis upon which this book is based was awarded the University of Hong Kong’s prestigious Li Ka Shing Prize.

Advances in Comparative and Transnational ADR: Research into Practice Conference (8-9 March 2019, HKU)

"Advances in Comparative and Transnational ADR: Research into Practice"

8, 9 March 2019; 11th Floor Cheng Yu Tung Tower, Faculty of Law, University of Hong Kong, Hong Kong SAR

Speaker's Bio

Preliminary Program

Friday March 8th
08:40	Registration
09:00	Welcome: Dean Michael Hor, University of Hong Kong, Faculty of Law Opening remarks: Shahla Ali, University of Hong Kong
09:15 – 10:15	Session 1 – Methodological Considerations in Comparative and Transnational ADR Chair: Zhao Yun Discussant: Lola Akin Ojelabi ·Matthew Erie, “The Third Eye: The Problem of Method in the Study of Transnational Dispute Resolution” ·Michael Palmer, “Modes of Dispute Response: Reconnecting the Range” ·Shahla Ali, “Advancing Research and Practice in Dispute Resolution Institutions through Inclusive Devolved Reflection”
10:15 – 10:35	Morning Break
10:35 – 12:10	Session 2 – Comparative ADR Ethics, Standards and Jurisprudential Ideals Chair: Keith Hawkins Discussant: Kerstin Bree Carlson ·Deborah Hensler, “Re-Inventing Arbitration: How Expanding the Scope of Arbitration is Re-Shaping its Form and Blurring the Line Between Private and Public Adjudication” ·Michal Alberstein, “Between Summary Trials and ADR” ·Lola Akin Ojelabi, “The Challenges of Developing Global Ethical Standards for ADR Practice” ·Zachary R. Calo, “Legal Ethics and Transnational Dispute Resolution” ·Dorcas Quek, “A New Chapter in the Cross-Border Enforcement of Mediated Settlement Agreements: The Elevated Role of Mediation Standards in Procedural and Substantive Justice”
12:10 - 13:20	Lunch for Speakers/Chairs
13:20 – 14:20	Session 3 – Comparative Approaches in Conciliation and Arbitration Chair: Tania Sourdin Discussant: Luigi Cominelli ·Anselmo Reyes, “The Use of Conciliation and Litigation by the Hong Kong Equal Opportunities Commission” ·Manuel Gomez, “Talk to Me: The Upsurge of International Arbitration-Related Conferences and their Impact on Academia, the Industry and the Legal Profession” ·Gu Weixia, “Arbitration in Comparative Perspectives”
14:20 – 15:35	Session 4 – Comparative ADR in Peace building, Health Care and Disasters Chair: Eric Feldman Discussant: Matthew Erie ·Kerstin Bree Carlson, “Peace Through Law: A Hybrid Tribunal for Divided South Sudan” ·Eric Feldman, “Recent Developments in Victim Compensation for the Fukushima Disaster” [TBC] ·Nadav Davidovitch, “Dealing with Conflicts in Health Care Systems: Form Clinical Medicine to Public Health Settings” ·Martin Lau, “TBC: ADR in Pakistan”
15:35 - 16:00	Break
16:00 – 17:50	Session 5 – ADR Developments and Reform in Mainland China Chair: Michael Palmer Discussant: Sida Liu ·He Xin, “Flexibility and Authority: Resolving Labor Disputes in a County Government in Western China” ·Kwai Ng, “Wearing Two Hats – Problems of Judicial Mediation as Seen from China” ·Chao Xi, “Negotiations in the Shadow of Shareholder Activism” ·Sida Liu, “The Spaces of Global China: Hong Kong as a Frontier for Chinese Law Firms” ·Ling Zhou, “Forum Shopping in a World of Mixed Processes: China’s Professional Litigants” ·Yang Lin, “New Developments in Online Dispute Resolution in China”
17:50	Closing remarks
18:30	Dinner hosted by HKU (by invitation only)

Saturday March 9th
09:30 – 11:20	Session 6 – Mediation Developments in the Context of Civil Justice Reforms Chair: Mark Feldman ·Tania Sourdin, “When is the Best time to Mediate? Considering Early Mediation” ·Luigi Cominelli, “Mediation Models and the Impact of the 52/2008 Directive on Civil and Commercial Mediation in Europe” ·Pablo Cortes, “Imbedding Mediation in the Civil Justice System” ·Nadja Alexander, “International Comparison of Regulatory Systems for Mediation” ·Francis Law, “TBC”
11:20 - 11:50	Break
11:50 - 12:00	Closing remarks and next steps
12:00	Lunch hosted by HKU (by invitation only)

Conference Theme:

The focus of the forum is on exploring the challenges and opportunities in understanding and assessing developments in systems of dispute resolution in diverse social and political contexts through comparative research. Papers may cover topics such as practical considerations in conducting comparative work in the field of transnational and comparative dispute resolution, insights from recent studies, and consideration of how research may inform policy reform in ADR institutions regionally and transnationally. We hope the forum will facilitate research collaboration that will also translate into positive policy applications and directions for future study.

*Transnational Dispute Management (TDM, ISSN 1875-4120) is a comprehensive and innovative information service on the management of international disputes, with a focus on the rapidly evolving area of investment arbitration, but also in other significant areas of international investment (such as oil, gas, energy, infrastructure, mining, utilities etc).

It deals both with formal adjudicatory procedures (mainly investment and commercial arbitration), but also mediation/ADR methods, negotiation and managerial ways to manage transnational disputes efficiently. See www.transnational-dispute-management.com for more information. You can apply for a free OGEMID trial membership and students can sign up for Young-OGEMID (which is free)

Registration

Please register through the following link: https://goo.gl/Beo8bZ

Media Partner

New Book by Shahla Ali: Court Mediation Reform: Efficiency, Confidence and Perceptions of Justice (Edward Elgar)

Court Mediation Reform Efficiency, Confidence and Perceptions of Justice
Shahla Ali
Edward Elgar
March 2018, 296 pages

Description: 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.

Recommendations:     

‘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

New Book: Alternative Dispute Resolution: Hong Kong and International Perspectives (K Lynch & Ida Mak)

Alternative Dispute Resolution: Hong Kong and International Perspectives
Editors: Katherine Lynch and Ida Mak
2017, 287 pp.
Faculty of Law, University of Hong Kong

Description: This Special Collection of University of Hong Kong Faculty of Law student research essays on alternative dispute resolution originates from the dispute resolution research and teaching curriculum in the HKU Faculty of Law. This inaugural collection presents undergraduate and postgraduate student research essays written on a variety of dispute resolution issues of relevance for Hong Kong and internationally. The aim of publishing this collection of student essays is to showcase excellent student research work in dispute resolution and to contribute to the developing body of research literature in Hong Kong on alternative forms of dispute resolution. It also seeks to contribute to knowledge sharing and knowledge exchange between Law Faculty students and the general public and broader community of Hong Kong – the aim is to encourage students to produce high quality research on important practical and policy issues for Hong Kong and then exchange and share this research through publication and law students as future academics, legal professionals and policy makers in Hong Kong with important research contributions to make to the community at large. This supports the University’s vision to produce distinguished graduates “committed to lifelong learning, and professionalism, capable of being responsive leaders and communicators in the field”.

Table of Contents

1. Development of dispute resolution curriculum at the University of Hong Kong … 1
Katherine Lynch

2. The hidden costs of alternative dispute resolution: why governments should be concerned about the privatization of justice … 15
Andrew Frobes

3. A comparative analysis of negotiation models … 35
Michael Ladovico Testori

4. A tailor-made prescription for family mediation in Hong Kong … 58
Crystal Chan Nim-Tung

5. MED-ARB: an Emerging Development in Hong Kong … 78
Pooja Shahani

6. One step further for our next generation: introducing victim-offender mediation to juvenile crimes in Hong Kong … 102
Sarah Law

7. Dispute review boards: emerging ADR process … 122
Josha Samuel Strub

8. Application of alternative dispute resolution in land use planning in Hong Kong … 142
Ava Tse Suk-Ying

9. The Hong Kong ombudsman: an Evaluation of its Contemporary role … 164
Chaminade Lam

10. Collaborative law and practice in medical-legal context … 192
Danny Lee Wai-Hung

11. New innovative dispute resolution mechanism for investor-state settlement: using MED-ARB to resolve investor-state disputes … 207
Ida Mak Kwan-Lun

12. Financial dispute resolution in Hong Kong … 225
Chan Man-yee

13. Third party funding, champerty and maintenance and arbitration … 244
Sean Hotung

14. The financial dispute resolution centre mediation scheme: Power imbalance in consumer financial services disputes … 261
Minos Lau Chun-Hin

RGC Awards $4 Million in Research Grant Funding to HKU Faculty of Law

The Research Grants Council awarded more than $4 million in funding to seven of the Faculty of Law's General Research Fund projects 2016-2017.  The projects cover a wide range of topics: director and shareholder accountability, competition law, cyberbullying and privacy, med-arb in China, trusts for mentally incapacitated persons, personal injury compensation reform, and regulation of trade in endangered wild animals.  Congratulations to the following colleagues:

• Ernest Lim, Rethinking Directorial and Shareholder Accountability, $352,500.
• Kelvin Kwok (with Thomas Cheng as Co-I), Buyer Power under Competition Law: A Theoretical Examination and a Case Study of Hong Kong, $508,496.
• Anne Cheung, Tackling Cyberbullying by Enhancing Privacy Protection: A Comparative and an Interdisciplinary Study, $1,072,190.
• Gu Weixia (with Anselmo Reyes as Co-I), When Local Meets International: The Delicate Art of Med-Arb in China and Its Prospective Reform in a Comparative Context in Asia, $460,000.
• Rebecca Lee (with Lusina Ho as Co-I), Special Needs Trusts for Mentally Incapacitated Persons in Hong Kong: A Proposed Framework, $825,800.
• Felix Chan, Further Reforms in Hong Kong’s Personal Injury Compensation: An Inquisitive Perspective, $590,500. 
• Amanda Whitfort,  A Comparative Evaluation of Hong Kong's Legislative Powers to Regulate Trade in Endangered Wild Animals, $370,500.

Odysseas Repousis on Standing in International Investment Law and the 'Foreign Control' Test (Tulane J Int'l & Comp L)

"Standing of Locally Incorporated Entities in International Investment Law and the Notion of 'Foreign Control'"

Odysseas G Repousis (PhD Candidate)

Tulane Journal of International & Comparative Law

Spring 2016, Vol. 24, Issue 2, pp 327-349

Abstract: Under customary international law, a state's ability to espouse the claims of its nationals and subsequently file a suit against another state is limited by the rule of incorporation. This has been clear at least since the seminal decision of the International Court of Justice in Barcelona Traction, where it was decided that Belgium could not seek recourse against Spain by espousing the claims of Belgian stockholders in Barcelona Traction, a Canadian company. Equally, claims by locally incorporated entities against the host state are not possible under customary international law. The strict incorporation test has nevertheless become obsolete, if not thrust aside, by the emergence of investment treaties. In fact, the unprecedented and drastic change brought about by investment treaties is all the more evident when considering the whole new array of nationality rules they have solidified. Investment treaties allow for shareholder claims explicitly or by reference to shareholding as one of the covered forms of investment. Some investment treaties go a step further by allowing locally incorporated entities to directly File a claim against the host state, provided that such entities are controlled by nationals or legal entities of the other Contracting Party. Claims by locally incorporated entities are also provided for under the International Centre for Settlement of Investment Disputes Convention ("ICSID Convention"). However, the ICSID Convention, unlike investment treaties, allows for such claims by reference to a "foreign control" test. Setting out from this premise, this Article does not intend to touch upon all of the nationality rules encountered in modem international investment law. Rather, it focuses on the standing of locally incorporated entities. In particular, it asks whether locally incorporated entities controlled by nationals of the host state qualify as covered investors, and if so, whether there is a difference between ICSID and non-ICSID claims. In a nutshell, this Article establishes that when a locally incorporated entity files a claim against the host state (the state of its incorporation), the operation of the foreign control test under the ICSID Convention enables an investment tribunal to unlimitedly pierce the corporate veil and assess whether the locally incorporated entity is ultimately controlled by nationals of the host state. In this case, an ICSID tribunal will have to deny the vesting of its jurisdiction because the locally incorporated entity cannot satisfy the foreign control test. This principle was first introduced in 2008 by the tribunal in TSA Spectrum v. Argentina and has recently solidified in the rulings of Burimi v. Albania and National Gas v. Egypt. On the contrary, when nationals of the host state ultimately control a locally incorporated entity but decide to file a claim against the host state through an intermediate company, incorporated in the other Contracting State, the locally incorporated entity is treated as an investment of the intermediate entity. In this case, an ICSID tribunal cannot pierce the corporate veil and assess whether the intermediate company is ultimately controlled by nationals of the host state.

Katherine Lynch on Children's Dispute Resolution in Hong Kong (Cardozo J Conflict Resln)

"Reform of Family Justice: Children's Dispute Resolution in Hong Kong"
Katherine Lynch
Cardozo Journal of Conflict Resolution
Spring 2016, Vol. 17, Issue 3, pp. 909-936

The last twenty years have witnessed a transformation of family justice systems across the common law world, featuring particular emphasis on ensuring that the best interests of children are protected when resolving family disputes. The evolving paradigm has shifted away from resolving family disputes in formal courtrooms via a litigious process that is viewed as lengthy, slow, complex, expensive, and far too adversarial, particularly when children are involved. In response to these challenges, many family procedural reforms, such as modifying court rules to accommodate more informal and flexible processes and expanding judicial roles to provide greater case management and settlement facilitation, have been introduced within the global common law community. More non-adversarial approaches to dispute resolution have developed, with increased use of informal out-of-court dispute resolution--processes often referred to collectively as "alternative dispute resolution" or "ADR" processes. Increasingly, disputes involving children are being handled through more informal, non-adversarial processes like mediation and collaborative practice. Prevention and early resolution of disputes are said to reduce the detrimental effect of conflict on children. The need to protect the best interests of children is now an important feature of family justice reform. The central focus is on providing better, more effective ways of determining what is in the children's best interests and providing children with the opportunity to be heard and to participate in proceedings affecting them - either directly or through a representative... Click here to download the full article.