Month: July 2021

Critical Evaluation of the One-Stop Dispute Resolution Services in Asia with Professor Mark Feldman

Published by Chinwe Egbunike-Umegbolu

Professor Mark Feldman

Abstract
I was super excited to welcome Professor Mark Feldman, one of my mentors and an accomplished leader in the area of Commercial Investment Arbitration. He holds a B.A. from the University of Wisconsin, where he was elected to Phi Beta Kappa, a J.D. from Columbia Law School, a James Kent Scholar, Harlan Fiske Stone scholar, and recipient of the Parker School Certificate in International and Comparative Law. He has served both in Private and Public sectors ranging from the USA, China, Singapore and many Asian nations. For instance, he had served on the faculty of the Executive Training on Investment Arbitration for Government Officials, held annually at Columbia Law School and organized by the Columbia Center on Sustainable Investment. His articles have been cited in over  200 publications, including reports by the OECD, UNCTAD, RIETI, the World Economic Forum, the European Parliament, the International Bar Association, and the U.S.-China Economic and Security Review Commission.
 Professor Feldman has taught more than 1000 law students at Peking University in Shenzhen and more than 500 government officials, legal practitioners and law students in Singapore (NUS) and Macau (PRAIA Academy). His government experience also includes service as a law clerk to Judge Eric L. Clay on the U.S. Court of Appeals for the Sixth Circuit and as a Peace Corps volunteer in Lesotho during South Africa’s transition to democracy. He is currently a Professor of Law at the Peking University School of Transnational Law, among many other accomplishments too numerous to mention.
In this episode, we featured a critical analysis of the following questions:
1)  How do you see the impact of this novel concept (One-stop Commercial Dispute Resolution Services) working within China and how the rest of the world would react to it.
2)  You related to Singapore as a leader, at least in Asia, in the area of commercial investment arbitration using what you described as legal hubs. How is their approach different from that adopted by China? Furthermore, what are the reasons for their success?
3)  How would you address the fears of the Purists who would see these integrated hubs as nothing but interference in an area considered purely an ADR arena -rather than mixing it with litigation or Professor Frank Sanders Multi-Door Courthouse (MDC).
4) Are there any differences between the MDC and the One-Stop Dispute Resolution Services?
5) What is your advice for people who want to pursue a career in ADR or Arbitration?
INTRODUCTION

The China Supreme People’s Court (SPC) birthed the China International Commercial Court (CICC) in 2018. Its purpose is “to build a diversified dispute resolution mechanism that efficiently links mediation, arbitration, and litigation;” hence this has paved the way for the ‘one-stop international commercial dispute resolution mechanism in China.’

The Impact of this novel concept (One-stop Commercial Dispute Resolution Services) working within China 

There are two institutions to focus on in respect to One-Stop Dispute Resolution. The first of the two that has received more attention is the China International Commercial Court (CICC), which now has tribunals in Shenzhen and Xi’an. The second is the International Commercial Dispute Prevention and Settlement Organisation (ICDPSO), and it has received far less attention; it is based in Beijing. Each of these institutions is high binding and respective one-stop dispute resolution, but each institution’s design is very different. Thus they are different ways these different institutions are offering very different options for their users.

You related to Singapore as a leader, at least in Asia, in the area of commercial investment arbitration using what you described as legal hubs. How is their approach different from that adopted by China? Furthermore, what are the reasons for their success?

The interesting difference is that in Mainland China, the CICC- the one-stop platform is embedded within that institution. Similarly, the Beijing organization that is the ICDPSO is also embedded in that institution. Professor Feldman pointed out that the message to the global community is that Singapore as a destination is a global leader in dispute resolution concerning one-stop dispute resolution. However, the Singapore international commercial court is now within that institution- it is simply working alongside arbitration institutions and mediation institutions.

 

How would you address the fears of the Purists who would see these integrated hubs as nothing but interference in an area considered purely an ADR arena -rather than mixing it with litigation or Professor Frank Sanders Multi-Door Courthouse (MDC)?

In respect to mediation, in particular, it is advancing on several fronts, and the highest proof to that development is the Singapore convention on mediation. Many comparisons have been made between the Singapore convention and the New York Convention. The Singapore convention will allow greater enforceability of mediated settlement agreement than the New York convention. What is equally important about the Singapore Convention is not only how it is advancing the enforceability of mediated settlement agreements on a higher level but also in terms of status-on mediation. Then it is essential to point out that mediation is developing on few other fronts as well. One is Belt and Road disputes settlement; it is evident that mediation is a core component of Belt and Road disputes. The International Chamber of Commerce (ICC), for example, recommended mediation- always to be considered for any Belt and Road disputes with investment arbitration; likewise, we see very significant development with mediation in connection with investment arbitration. Thus the International centre for settlement investment dispute in 2018 developed a set of mediation rules. These mediation rules are in addition to the existing conciliation rules; unlike their conciliation rules, the mediation rules do not have any jurisdictional requirement regarding the nexus to ensure membership. Instead, the mediation rules are freely available. 

 

Are there any differences between the MDC and the One-Stop Dispute Resolution Services (OSDRS)?

 In legal terms, whether it is referred to as the Multi-Door Court (MDC) or whether it is referred to as the One-Stop Dispute Resolution Services (OSDRS), it does not imply any particular difference. I think the differences are in terms of the implementation. For instance, Singapore is implementing the model differently in terms of not including everything within one institution; instead, it is a case of different institutions working together.

 

What is your advice for people/persons who want to pursue a career in ADR or Arbitration?

There are so many different ways to begin to develop a profile within arbitration. Firstly, for people starting, if there are opportunities with arbitrational institutions or with mediation institutions, take it. It is a great way to get started. Secondly, law firms provide excellent training if there is an opportunity to work in a law firm that might be an excellent way to start out and then transition to a private firm, perhaps after a few years. Thirdly, publication is another great way to start developing a profile. Especially for more junior lawyers co-authoring with the more senior scholar or lawyer would be a nice way to develop a profile through publications.

Finally, make use of social media. There are so many developments and many publicly available materials. It is a good use of one’s time to pay attention to the discussions on social media. Now, virtually with webinars, there are some interesting webinars available generally to the public. There are incredible resources that are now available virtually without registration fees. It is an excellent way for lawyers to continue educating themselves and demonstrate their interest in the area. It is essential to point out that demonstration of interest is crucial because employers see that he/she is active in the community. For example, they have published a few articles, they have interned in a few institutions. These are all great ways for junior lawyers to demonstrate a genuine interest in these areas.

 

CONCLUSION

This work, to an extent, has critically evaluated the impact of the one-stop dispute resolution services in Asia. In furtherance, highlighted the different approaches adopted by China and Singapore while examining the differences and similarities between the MDC and the One-Stop Dispute Resolution. It concludes with concrete advice for people/persons who want to pursue a career in ADR or Arbitration.

To listen to the full version of Episode 18 of EVA, click here.
Reference:
Feldman, Mark, One-Stop Commercial Dispute Resolution Services: Implications for International Investment Law (October 18, 2019). < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3471695> accessed on 24th May 2021.