Combination of mediation with arbitration : Chinese mainland and Hong Kong perspectives

Pao Yue-kong Library Electronic Theses Database

Combination of mediation with arbitration : Chinese mainland and Hong Kong perspectives

 

Author: Tian, Jun
Title: Combination of mediation with arbitration : Chinese mainland and Hong Kong perspectives
Degree: M.Sc.
Year: 2010
Subject: Hong Kong Polytechnic University -- Dissertations
Mediation and conciliation, Industrial -- China
Mediation and conciliation, Industrial -- China -- Hong Kong
Arbitration and award -- China
Arbitration and award -- China -- Hong Kong
Dispute resolution (Law) -- China
Dispute resolution (Law) -- China -- Hong Kong
Department: Dept. of Building and Real Estate
Pages: viii, 76 leaves : ill. ; 30 cm.
InnoPac Record: http://library.polyu.edu.hk/record=b2353092
URI: http://theses.lib.polyu.edu.hk/handle/200/5655
Abstract: Arbitration is widely used in dealing with transnational commercial disputes, As an alternative to litigation, it was favored in its flexibility, confidentiality and international enforceability. But there are many criticisms towards it about its shortcoming in flexibility and efficiency nowadays. Various amicable alternative dispute resolutions attract more and more users and researchers to appreciate their use and development. Mediation as one of them is enjoying increasing popularity in the world, Combination of mediation with arbitration (Arb/Med) is usual arbitration practice in China and regarded as "oriental experience" in the world. In Hong Kong, though Arb/Med is allowed by the Arbitration Ordinance, it is seldom used in arbitration practice. Investigation shall go to reasons that why mediation is not used in arbitration practice and possibilities of using it in Hong Kong. Many concerns about this hybrid mechanism are about conflict of roles and natural justice. Supporters and objectors to Arb/Med give totally opposite opinions. Supporters believe it is not in breach of natural justice, since the parties could have equal rights to present their case, hear and rebut opponent's case. They believe the same individual must be the best person to issue a fair award, because he knows everything about the disputes. Objections come from concern of caucus, in which confidential infonnation would be disclosed to the tribunal, who would be inevitably influenced, and the other party may lose the right to know and argue about such information. Even without caucus, confidential information would impact on arbitrators' mind and award. This damages the integrity of arbitration. The supportive ideas represent Chinese perspectives, while the opposing ones mainly come from jurisdictions of common law system, such as Hong Kong. Chapter one identifies the background of the research, aim and objectives, hypothesis and methodology. Based on comprehensive literature review, definitions of Arb/Med, related laws and rules, general practice, discussions about pros and cons are stated in Chapter two. Interviews are carried out with arbitrators and mediators from both jurisdictions. The interviews with Chinese arbitrators are not only about the theoretical concerns but also their practice in Arb/Med in order to give readers a real picture of arbitrators' involvement in mediation. For illustration of the procedure, a case study is employed as well. Interviews in Hong Kong are mainly about Hong Kong arbitrators' concerns and attitudes towards Arb/Med. The perspectives from Hong Kong and China are compared and integrated in Chapter four. Though there are different attitudes and understanding towards the issues of conflict of roles and natural justice, they share the view that mediation can be integrated into arbitration to increase the efficiency and flexibility. The observation of this dissertation is presented in Chapter five. Hong Kong may learn from China to consider using Arb/Med and give discretion of disclosure to parties and arbitrators by learning from Article 40(8) of CIETAC Arbitration Rules.

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