The Hong Kong Special Administrative Region government recently announced that a joint statement by China and like-minded countries was issued on Nov 1, 2022, to pave the way for the establishment of the International Organization for Mediation Preparatory Office in Hong Kong.
According to Secretary for Justice Paul Lam Ting-kwok, the establishment of the Preparatory Office in Hong Kong is a much-welcomed development and shows the central government’s strong support for maintaining the city’s unique status under the “one country, two systems” framework. Moreover, and importantly, the setting up of the Preparatory Office is a confirmation of the strategically important position of Hong Kong that enables it to become an international legal and dispute-resolution services center in the Asia Pacific region.
After interviewing scholars familiar with this topic, Chen Jing, Lianhe Zaobao’s correspondent in Shanghai, reported that this new institution will mainly mediate international commercial disputes (Lianhe Zaobao, Nov 3, 2022). The Ministry of Foreign Affairs said that the recent surge in global demand for mediation has drawn public attention to the lack of international intergovernmental organizations specializing in mediation. In response to this, China and like-minded countries drafted and reached a joint statement on the establishment of an International Mediation Court (IMC). It will provide “friendly, flexible, economic and convenient solutions for all types of international disputes”.
According to Wang Jiangyu, a law professor at the City University of Hong Kong and the director of the China and Comparative Law Research Center, the IMC should be positioned closer to the Singapore International Commercial Court (SICC). He further pointed out multiple dispute resolution mechanisms combining litigation, arbitration and mediation have emerged around the world (Lianhe Zaobao, ibid). Arbitration and mediation are popular forms of alternative dispute resolution (ADR) in many common and civil law jurisdictions.
Jumping on the ADR+ bandwagon, Singapore had become a prime ADR+ destination for international commercial-dispute resolution. Hong Kong is catching up. It’s by no means clear whether the IMC will be constituted and patterned after the SICC model. Since section 18D(2) of Supreme Court of Judicature (Amendment) Act specifies that the SICC has jurisdiction to hear proceedings relating to international commercial arbitration, we are not sure whether the proposed IMC will only focus on mediation as a form of ADR.
If the designers of the IMC follow the advice of Professor Wang and if arbitration is not excluded from the repertoire of dispute resolution services provided by the IMC, we will find it hard to understand the IMC without referring to the ADR legal services provided by the SICC. Established in 2015 as the international division of the Singapore High Court, the SICC has gone from strength to strength in a short span of time. It prides itself on its unique mix of eminent international jurists from common and civil law jurisdictions, along with judges of the Singapore Supreme Court.
The establishment of the Preparatory Office in Hong Kong is a much-welcomed development and shows the central government’s strong support for maintaining the city’s unique status under the “one country, two systems” framework. Moreover, and importantly, the setting up of the Preparatory Office is a confirmation of the strategically important position of Hong Kong that enables it to become an international legal and dispute-resolution services center in the Asia Pacific region
Currently, foreign judges make up 17 out of the 40 judges on the SICC panel of judges. For example, Judges McLachlin, Lord Neuberger and French, who served as immediate past chief justices of their respective jurisdictions, are now on the SICC’s panel lists. Anselmo Reyes, who was a former judge of the Hong Kong High Court from 2003 to 2012, became an international judge of the SICC in January 2015.
Arbitration is becoming increasingly important in the context of international relations as investor-state and free trade agreements rely on international arbitration when disputes cannot be resolved by negotiation and mediation (Tania Sourdin, Alternative Dispute Resolution (Sydney: Lawbook Co 2022), p 23). As an international trade hub, Singapore must ensure that the SICC can provide effective arbitration for settling international trade and commercial disputes. Up to now, the SICC has met the expectations of different stakeholders.
The label attached to the proposed IMC shows that it will focus on mediation to resolve international trade and commercial disputes. Mediation consists of two main types; namely, court-based mediation and private mediation. Court-based mediation is mediation conducted in the court by a judge or court official after parties have commenced litigation proceedings. In China, courts can initiate a session of mediation in most civil cases (Wang Chenguang and Zhang Xianchu (eds.), Introduction to Chinese Law (HK: Sweet & Maxwell Asia, 1997), p 377).
In Singapore, the bulk of court-based mediation is handled under the Court Dispute Resolution Mediation program. Under this popular program, either the party or its lawyer can apply for mediation after all the pleadings have been filed and all parties involved consent to mediation. The Singaporean model of court-based mediation may provide the flesh of organizational and procedural guidelines beneath the outer skin of the proposed IMC.
The existing Mediation Ordinance establishes a regulatory framework for the conduct of mediation in Hong Kong, promoting, encouraging and facilitating resolution of disputes by mediation. We are not sure whether the existing Mediation Ordinance would be amended in order to transform Hong Kong’s mediation law in line with modern developments in the international mediation regime. Concerning the enforcement of mediated settlement agreements, the Singapore Convention and corresponding model law are intended to provide a solution — a legal framework within which settlement agreements resulting from the mediation of international commercial disputes may be enforced. In this respect, it purports to play a role similar to that of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).
Although the Nov 1 joint statement has not specified the jurisdiction and procedural rules of the IMC, Professor Wang speculated that the IMC will follow the Singapore Convention and focus on mediating international commercial disputes (Lianhe Zaobao, ibid). As Professor Raymond Leung Hai-ming has correctly pointed out, parties are beginning to use mediation as a means to resolve trade disputes. Different trade disputes have successfully been resolved through mediation (Raymond Leung (ed.), Hong Kong Mediation Handbook (HK: Sweet & Maxwell, 2009), p 236).
It’s highly likely that the volume and total value of exports and imports between China and the Belt and Road participating countries will see a sharp rise in the future. The proposed IMC could form a valuable platform for resolving trade and commercial disputes relating to the Belt and Road Initiative. Seen through the perspective of geopolitical competition, the IMC fits China’s aspiration to play a bigger role in shaping and applying of international rules. Turning back to Hong Kong, the IMC will give full play to the advantages of the city as a superconnector linking the East and the West, and it is also in line with the goals of improving the market economic system and promoting a high level of opening-up to the outside world formulated in the work report of the 20th National Congress of the Communist Party of China.
Junius Ho Kwan-yiu is a Legislative Council member and a solicitor.
Kacee Ting Wong is a barrister, a part-time researcher of Shenzhen University Hong Kong and the Macao Basic Law Research Center, and co-founder of the Together We Can and Hong Kong Coalition
The views do not necessarily reflect those of China Daily.