Resolving Disputes in the Asia-Pacific Region: International Arbitration and Mediation in East Asia and the West

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  • Edition: 1st
  • Format: Hardcover
  • Copyright: 2010-11-20
  • Publisher: Routledge

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Resolving Disputes in the Asia-Pacific Region presents empirical research about the attitudes and perceptions of the arbitration community in China, Hong Kong, Korea, Japan, Singapore, and Malaysia as well as North America and Europe. The both covers both international commercial arbitration and "alternative" techniques such as mediation, providing an empirical analysis of how both types of dispute resolution are conducted in the East Asian context. The book examines the history and cultural context surrounding preferred methods of dispute resolution in the East Asian region and sheds light on the various approaches to international arbitration across these diverse regions.

Table of Contents

List of tablesp. xi
Acknowledgmentsp. xv
Discussion of methodsp. 4
Secondary academic research and on-site datap. 5
Comparative content analysis of on-site datap. 5
In-depth personal interviewsp. 5
Case study data collectionp. 5
Analysis of case statisticsp. 6
Comparative survey datap. 6
Principal findingsp. 7
Backgroundp. 9
Impact of globalization on international legal practicep. 11
Insights regarding the global practice of arbitrationp. 12
Legal pluralism and internationalization of legal practice literaturep. 12
Legal transplant literaturep. 15
International arbitration literaturep. 16
Assessment of literature in light of methods usedp. 16
Background and legal framework of arbitration in East Asia and the Westp. 18
Unique underpinnings of dispute-resolution in East Asiap. 18
Origins of East Asian approach to dispute-resolutionp. 19
Philosophical foundationsp. 19
Social and political foundationsp. 20
Primacy of relationshipsp. 21
Discussionp. 22
Growth of the rule of law in East Asiap. 22
Continued support for lawful mediation and settlementp. 23
Conclusionp. 24
The emergence of arbitral institutions in East Asiap. 25
International arbitral models: origins and scope of UNCITRALp. 25
Participation in model law creationp. 26
Model conciliation rulesp. 27
Influence of model arbitration law and rules in East Asiap. 27
Practices of arbitral institutions in East Asiap. 28
China International Economic and Trade Arbitration Commissionp. 29
CIETAC institutional arbitration processp. 30
Combination of arbitration with conciliation in CIETACp. 31
Hong Kong International Arbitration Centerp. 35
Mediation and arbitration procedurep. 36
Singapore International Arbitration Centerp. 38
Japan Commercial Arbitration Associationp. 38
Korean Commercial Arbitration Boardp. 39
Conclusionp. 39
Data presentationp. 41
A survey of arbitration and settlement in international commercial disputes in Asiap. 43
Overview of survey data collection methodp. 43
Summary of most relevant findingsp. 45
Advantages of arbitrationp. 45
International convergence of perspectivep. 47
Regional variation-informed divergencep. 49
Socioeconomic variationp. 50
Discussionp. 52
Settlement in arbitrationp. 53
Settlement as a goal of arbitrationp. 53
Negotiated settlement and compromise decisionsp. 54
Overall settlement ratep. 56
Discussionp. 57
Factors influencing the achievement of settlementsp. 57
Barriers to settlementp. 58
Convergence of perspective-common barriersp. 59
Socioeconomidregional barriers-commensurate variationp. 61
Factors contributing to settlementp. 62
Internationally based considerations-convergencep. 63
Regional factors-informed divergencep. 66
Socioeconomic factors-commensurate variationp. 66
Discussionp. 67
The role of the arbitratorsp. 67
Appropriateness of arbitrator involvementp. 68
Discussionp. 72
Role of arbitrators in facilitating settlementp. 72
Harmonizationp. 72
Regional variationp. 73
Discussionp. 77
Use of ADR mechanismsp. 78
Conclusionp. 80
Case statistics and case studies on conciliated arbitration awardsp. 81
Statistics on conciliated arbitration awards from 1963 to 1996p. 81
Case studiesp. 83
Case identificationp. 83
Case presentationp. 83
conciliation outside the shadow of the lawp. 84
integration of conciliation attempts into arbitral proceedingsp. 86
direct resolution through mediationp. 87
conciliation through "mutual concessions"p. 88
multi-tiered dispute resolution processes within arbitrationp. 89
resolution through "friendly consultations"p. 90
Conclusionp. 90
Conclusion: reconciling global harmonization and cultural diversity in the context of international commercial arbitration in East Asiap. 91
Suggestions for improvementp. 91
Avoiding adversarialism in arbitrationp. 93
Implications of studyp. 94
Evaluation of methodsp. 94
Future directions of researchp. 95
Summary of findings-East Asiap. 96
Summary of findings-West/Europep. 102
Text of United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitrationp. 109
Text of UNCITRAL Model Law on International Commercial Conciliationp. 122
Notesp. 127
Bibliographyp. 139
Indexp. 145
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