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

by Ali; Shahla

• ISBN13: 9780415583725
• ISBN10: 0415583721
• Format: Hardcover
• Copyright: 2010-11-20
• Publisher: Routledge

Summary

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 tables	p. xi
Acknowledgments	p. xv
Introduction
Discussion of methods	p. 4
Secondary academic research and on-site data	p. 5
Comparative content analysis of on-site data	p. 5
In-depth personal interviews	p. 5
Case study data collection	p. 5
Analysis of case statistics	p. 6
Comparative survey data	p. 6
Principal findings	p. 7
Background	p. 9
Impact of globalization on international legal practice	p. 11
Insights regarding the global practice of arbitration	p. 12
Legal pluralism and internationalization of legal practice literature	p. 12
Legal transplant literature	p. 15
International arbitration literature	p. 16
Assessment of literature in light of methods used	p. 16
Background and legal framework of arbitration in East Asia and the West	p. 18
Unique underpinnings of dispute-resolution in East Asia	p. 18
Origins of East Asian approach to dispute-resolution	p. 19
Philosophical foundations	p. 19
Social and political foundations	p. 20
Primacy of relationships	p. 21
Discussion	p. 22
Growth of the rule of law in East Asia	p. 22
Continued support for lawful mediation and settlement	p. 23
Conclusion	p. 24
The emergence of arbitral institutions in East Asia	p. 25
International arbitral models: origins and scope of UNCITRAL	p. 25
Participation in model law creation	p. 26
Model conciliation rules	p. 27
Influence of model arbitration law and rules in East Asia	p. 27
Practices of arbitral institutions in East Asia	p. 28
China International Economic and Trade Arbitration Commission	p. 29
CIETAC institutional arbitration process	p. 30
Combination of arbitration with conciliation in CIETAC	p. 31
Hong Kong International Arbitration Center	p. 35
Mediation and arbitration procedure	p. 36
Singapore International Arbitration Center	p. 38
Japan Commercial Arbitration Association	p. 38
Korean Commercial Arbitration Board	p. 39
Conclusion	p. 39
Data presentation	p. 41
A survey of arbitration and settlement in international commercial disputes in Asia	p. 43
Overview of survey data collection method	p. 43
Summary of most relevant findings	p. 45
Advantages of arbitration	p. 45
International convergence of perspective	p. 47
Regional variation-informed divergence	p. 49
Socioeconomic variation	p. 50
Discussion	p. 52
Settlement in arbitration	p. 53
Settlement as a goal of arbitration	p. 53
Negotiated settlement and compromise decisions	p. 54
Overall settlement rate	p. 56
Discussion	p. 57
Factors influencing the achievement of settlements	p. 57
Barriers to settlement	p. 58
Convergence of perspective-common barriers	p. 59
Socioeconomidregional barriers-commensurate variation	p. 61
Factors contributing to settlement	p. 62
Internationally based considerations-convergence	p. 63
Regional factors-informed divergence	p. 66
Socioeconomic factors-commensurate variation	p. 66
Discussion	p. 67
The role of the arbitrators	p. 67
Appropriateness of arbitrator involvement	p. 68
Discussion	p. 72
Role of arbitrators in facilitating settlement	p. 72
Harmonization	p. 72
Regional variation	p. 73
Discussion	p. 77
Use of ADR mechanisms	p. 78
Conclusion	p. 80
Case statistics and case studies on conciliated arbitration awards	p. 81
Statistics on conciliated arbitration awards from 1963 to 1996	p. 81
Case studies	p. 83
Case identification	p. 83
Case presentation	p. 83
conciliation outside the shadow of the law	p. 84
integration of conciliation attempts into arbitral proceedings	p. 86
direct resolution through mediation	p. 87
conciliation through "mutual concessions"	p. 88
multi-tiered dispute resolution processes within arbitration	p. 89
resolution through "friendly consultations"	p. 90
Conclusion	p. 90
Conclusion: reconciling global harmonization and cultural diversity in the context of international commercial arbitration in East Asia	p. 91
Suggestions for improvement	p. 91
Avoiding adversarialism in arbitration	p. 93
Implications of study	p. 94
Evaluation of methods	p. 94
Future directions of research	p. 95
Summary of findings-East Asia	p. 96
Summary of findings-West/Europe	p. 102
Text of United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration	p. 109
Text of UNCITRAL Model Law on International Commercial Conciliation	p. 122
Notes	p. 127
Bibliography	p. 139
Index	p. 145
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