The Emergence of Mediation Law in Asia: A Tale of Two Cities
Posted: 7 Dec 2020 Last revised: 19 Feb 2021
Date Written: December 4, 2020
Contemporary mediation systems are emerging throughout Asia. In 2019, 16 jurisdictions from Asia and the Pacific region signed the UN Convention on International Mediation Settlement Agreements Resulting from Mediation (the Singapore Convention). Asian signatories include its three largest economies, five ASEAN countries and seven members of the RCEP.
Why is this important? In a strict legal sense, the Singapore Convention is an instrument to facilitate the enforcement of international mediated settlement agreements (iMSAs), however its broader objective is to facilitate cross-border trade and investment as is reflected in its Preamble.
The Singapore Convention promises to leave a significant impact on international dispute resolution practices and, beyond that, on trade and investment flows. The Convention has the capacity to enhance the attractiveness of mediation within regional initiatives, such as the Belt and Road Initiative and support economic growth in Asia, which continues despite the global downturn due to Covid-19. Further, the Convention will support the regulatory robustness of cross border online mediation initiatives, which have surged in the wake of Covid-19 travel restrictions.
An increase in international commercial disputes during periods of economic growth is considered part of the cost of doing business. But how much conflict actually costs, depends on how disputes are managed and resolved. From a user perspective, the Singapore Convention offers a risk management mechanism accessible in terms of its commercial and cultural sensitivity, flexibility and affordability to cross-border business players, whether they are multi-national corporations, MSMEs, indigenous communities with resource rights, governments of emerging economies or industrialised states.
During this period of rapid growth in, and digitization of, mediation, choices made about the design and implementation of mediation law will have a direct and significant impact on how mediation develops (or not) throughout the world. It is vital to ensure that such choices are informed by:
• insights from jurisdictions that have experience in regulating (cross-border) mediation and other relevant empirical evidence;
• available resources that may support mediation law and its implementation, for example, existing laws, infrastructure and institutions; and
• the expertise of the professional mediation community.
This paper takes a deep dive into the laws applicable to cross-border commercial mediation in two Asian jurisdictions considered as leaders in dispute resolution: Singapore and Hong Kong. Already considered to be leading international arbitration hubs with strong rule of law rankings, Hong Kong and Singapore are leading the way in terms of setting up legal environments that support and encourage, cross-border mediation. The author draws upon empirical studies, academic literature, legal analysis and her own experiences as a member of the professional mediation community and regulatory systems adviser in both jurisdictions.
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