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Editorial
Jingzhou Tao
Right before the COVID-19 pandemic swept across the whole world, Professor Ji Weidong contacted me for a Special Issue on international arbitration in the Asia-Pacific region for this publication. I was somewhat hesitating in a sense that international arbitration is not really an academic subject, but rather a pragmatic matter. However, the mere fact that Professor Ji likes to have a Special Issue dealing with the subject was a good indication that the academic community is interested in arbitration in Asia. Arbitration in Asia can indeed have contemporary and future practical importance for international business law.
The reasons why international arbitration in Asia warrants attention are multifold. For the last two decades, Asia has become the emerging international arbitral centre; not only were more and more Asian arbitration institutions set up in the region and those centres have increasingly more international arbitration cases, but also several traditional Western international arbitration institutions have come to Asia and opened their offices in cities such as Hong Kong, Singapore, Shanghai, etc.
Arbitration is a preferred dispute-resolution means for the transnational business community. The cost-effectiveness, flexibility, and confidentiality of the arbitration proceedings together with the international enforceability of arbitration awards have encouraged many international business operators to choose arbitration so that their future dispute will not fall into the hands of national judges whose independence and impartiality are allegedly questionable. This is particularly true when the rule-of-law record of a country is somewhat mediocre and foreign business people do not want to get into a “home justice” legal procedure. With the case-load increase comes the desire to improve the way to conduct arbitration. Indeed, arbitration has been constantly improved over the last several decades and Asia is not an exception.
Professor Doug Jones’s paper deals with the important aspect of modern arbitration: the efficiency and transparency of international commercial arbitration. Although confidentiality is one of the distinctive features of arbitration, parties involved in the arbitration itself ask for more transparency of the arbitration procedure and for more information about the way in which the institutions nominate the presiding arbitrator and background information about the arbitrators. It is the author’s view that transparency will give greater legitimacy to international arbitration.
On the same issue of efficiency and transparency, HiroyukinTezuk and Mihiro Koedahave dealt with the efficiency and transparency in a geographically more narrow and typologically larger context; they look at efficiency and transparency issues from the latest development of alternative dispute resolution (ADR) in Japan. Japan is one of the biggest economies and has one of the most developed technologies in the world. However, from both the internationalization of Japanese law firms and the development standpoint of Japanese arbitration institutions, Japan was quite lagging behind. Over the last several years, Japan has doubled its effort to rectify this backwardness by promulgating new laws, setting up new institutions, and implementing new technics.
Alvin Yeo and Chan Hock Keng’s paper deals with the arbitration and court-case handling during the pandemic to adapt to domestic and international travel restrictions. Electronic litigation systems and video conferencing have very suddenly become the dominant arbitration hearing methods. Yeo and Keng have taken Singapore as an example to outline the legal basis for virtual hearing. The pandemic has forced the grey-hair arbitrators to stop first-class travel and to quickly learn how to manipulate the electronic gadgets and apparels, and to talk to the screen using Zoom and Microsoft Meeting apps.
Cheng-Yee Khong’s paper discusses a hot topic, which is third-party funding. With international arbitration getting more and more expensive, some companies just could not afford to start a big-ticket arbitration case, even though they thought that they would have both legal and contractual grounds to win the future arbitration, due to the financial constraints. The upsurge of third-party funding is a natural response to the needs of the markets. Khong examined the regulatory development in Asian jurisdictions and discussed the recent development through two case-studies.
From a country-specific aspect, submitted a paper discussing arbitration in Syria. It is quite rare to have a detailed paper studying the Syrian arbitration system. The country has been suffering from civil war and local conflict since 2011 but this does not smash the resilient and ancient customary Arabic dispute-resolution system. This paper analyzes arbitration in Syria from both Syrian national and international law.
Research Article
Exploring the future of commercial dispute resolution in Asia: Accelerating efficiency and effectiveness in ADR
HiroyukinTezuk，NISHIMURA&ASAHI
Mihiro Koeda，NISHIMURA&ASAHI
Abstract:
Since 2017, Japan has rapidly developed its hard and soft infrastructure to accelerate the use of alternative dispute resolution (ADR) in Japan, such as establishing the Japan International Dispute Resolution Center and the Japan International Mediation Center, Kyoto, as well as amending the Foreign Lawyers Act. The legislative process to amend the Japanese Arbitration Act is underway and discussions to accede to the Singapore Convention are ongoing. Mediation and settlement discussions involving judges during the litigation process are traditionally common in Japanese court practices, which would have some implications for investor–state mediation, which is a recent hot topic in the field of investor–state dispute settlement. Numerous means of further improving the efficiency and effectiveness of ADR proceedings have been discussed globally, including mid-stream conferences, Calderbank offers, the use of mediation in complex disputes, and the advanced use of Arb-Med-Arb proceedings utilizing party-appointed arbitrators.
Keywords:
settlement involving the Japanese Supreme Court; investor–state mediation; mid-stream conference; Calderbank offer; mediation in complex disputes; party-appointed arbitrators’ role in Arb-Med-Arb proceedings
Asian Courts in Times of COVID: Virtualization and the New Normal
Alvin Yeo，WongPartnership LLP, Singapore
Chan Hock Keng，WongPartnership LLP, Singapore
Abstract:
The unprecedented COVID-19 pandemic has caused restrictive measures to be established in many sectors including the legal and judicial sector; an example is the use of electronic litigation systems and video-conferencing facilities for trials. With the implementation of changes in the legal and judicial sector to adapt to restrictions arising from the pandemic, there is the question of whether the current rules governing civil-court proceedings are designed to accommodate these changes. This article seeks to explore the measures taken by courts in response to the pandemic with a focus on Asia, notably Singapore. The article will outline the legal basis for the use of live video links for the purpose of witness evidence-taking under Singapore law and the possible implications will be reviewed taking Singapore’s civil proceedings as an example in comparison with other jurisdictions.
Keywords: COVID-19; Singapore; virtual; trial;video link
Monetizing Legal Assets: Social and Economic Benefits of Third-Party Dispute Finance in Asia
Cheng Yee Khong， Omni Bridgeway
Abstract:
This article explains third-party dispute finance, including practical issues relating to the funding process and how to choose a funder. It examines some of the social benefits of funding and its importance in an economic downturn, and looks at some of the risks of dispute finance. It also considers the regulation of dispute finance in various Asian jurisdictions, as well as recent industry trends, including the use of dispute funding by well-resourced corporates and dispute-finance products for companies. It explains funding for insolvency-related claims and funding for the enforcement of awards and judgments. Finally, it provides two case-studies in which funding provided access to justice and enabled the funded party to recover a non-performing loan in multiple jurisdictions.
Keywords: dispute finance; third-party funding; arbitration funding; litigation funding
Arbitration in Syria: Navigating Postwar Disputes
Faris Elias Nasrallah
Abstract:
The place of arbitration within the Syrian legal system has received scant academic and professional attention, and as such, remains largely unstudied. Shedding much-needed light on the nature of arbitration in Syria as a resilient form of ancient customary Arab alternative dispute resolution, this contribution appraises the salient features of the Syrian Arbitration Law 2008 and arbitration-related provisions within recent Syrian legislation. It aims to understand the position of arbitration in Syria between existing national and international law frameworks for dispute settlement and to assess the potential for establishing independent, transparent, and efficient tribunals to resolve disputes arising out of ongoing conflicts that have plagued the country since 2011. If arbitration proves to be a mechanism for ordering the peaceful settlement of postwar disputes within and concerning Syria, parties, practitioners, and stakeholders must employ perspectives that include and are capable of navigating Syria’s existing arbitration landscape.
Keywords: Syria; arbitration; investment law; postwar; dispute settlement
Internationalization as a Leap of Faith: Arbitration Reforms in China and the Challenges of Implementation
Kai-Shen Huang, China Institute for Socio-Legal Studies, Shanghai Jiao Tong University
Abstract:
Recent years have witnessed an increasing trend in Chinese arbitration reform that emulates international norms and practices. This article examines some of these key reform measures and major challenges to their implementation. It explores in both legal and practical terms why most of these reform techniques may remain largely ineffective, showing that engaging in international norms and standards in China can be highly challenging due to their potential illegality, the general lack of institutional capacity to sustain them, and the conflicts of local ideas about the purposes of arbitration. It is thus doubtful whether commitment to satisfying the formal requirements prescribed by the legal reforms would often prevail. When it does, it is questionable whether this form of commitment would become prevalent and how it could proceed in a sustainable and coherent manner from a practical perspective.
Keywords: Chinese arbitration reform; legal reform in China; internationalization;dispute resolution; legal transplants
Independent Directors and Team Production in Japanese Corporate Governance
Andrew Johnston，Coventry Warwick University School of Law
Kohei Miyamoto，Tokyo Chuo University Law School
Abstract:
Independent directors (IDs) in listed Japanese companies have gradually increased with the transplant of the Western model of the monitoring board. In practice, however, IDs act more like the mediating hierarch in team production theory than the agent of the shareholders, albeit with a number of differences from Blair and Stout’s seminal model. Japanese IDs mediate formally and informally, resolving vertical disputes between groups of executives as they contest control of the company. Given the norm of lifetime employment, such vertical disputes are common in Japanese companies and are economically significant, since failure to resolve them can result in destruction of firm-specific human capital. The article explores the scope for mediating hierarchy in Japanese law and corporate governance practice, then develops three case-studies which highlight the role played by IDs. Their practice is shaped by and supports social norms that emphasize the importance of continuity in team production.
Keywords: corporate governance; team production; agency theory; independent directors; non-executive directors; mediating hierarchy; Japan
Principles of Asian Contract Law at the Crossroads of Standardization and Legal Pluralism
A.Grebieniow，Warsaw Center for International Law, University of Warsaw Law School
Abstract:
The Principles of Asian Contract Law (PACL) are the most recent addition to the series of uniform laws regarding transnational commercial contracts. This time, the harmonization initiative must address the problem of a great variety of legal traditions, all of which are quite difficult to reconcile. The author focuses on the object and objectives of the PACL by reconsidering the notion of “Asian law” and the alleged cultural neutrality of contract law as a legal discipline. The paper argues that the PACL project lacks clarity. Its ambitious objectives, while apparently intelligible, fail to produce the desired results in their entirety: the Asian regional harmonization of contract law turns out to resemble its occidental forerunners. The study goes beyond the traditional comparative law. It explores the model law (in the making) in a broader context of legal policy, parallel regional private-law-making efforts in the field of contract law as well as in the context of legal globalization.
Keywords: Asian law; transnational law; soft law; contract law; harmonization; legal pluralism
Book Review
书 评
Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study.
Edited by Anselmo Reyes and Weixia Gu. Cambridge, UK: Cambridge University Press, 2022. 400 pp. $191.00
Jie (Jeanne) Huang
Venture capital law in China - Venture Capital Law in China.
By Lin Lin. Cambridge: Cambridge University Press, 2021. 340 pp. Hardcover $110.50
Alexander Loke
Fintech Regulation in China: Principles, Policies and Practices.
By Robin Hui Huang . Cambridge: Cambridge University Press, 2021. 314 pp. Hardcover $110
Li Guo