The practice of mediation dates back to very ancient times and was part of early Roman law. Mediators existed in many cultures, and often overlapped with the roles of traditional wise men and tribal chiefs. The settlement of disputes through mediation is also part of Confucian and Buddhist history in the belief that conflicts must be resolved peacefully to maintain the natural harmony of life and avoid losing respect of others. Although mediation, as a formal process for alternative dispute resolution, was more recently developed in Anglo Saxon countries and is now increasingly widespread in common law jurisdictions, it is equally suitable for countries with civil law traditions. This chapter considers the practice of mediation in Central Asia, specifically the Commonwealth of Independent States countries, and reports on the European Bank for Reconstruction and Development’s support for the development of mediation in that region. There is a perception that countries are less receptive to mediation than other countries because of their post-Soviet legacy, although the legal traditions of these countries include a number of out-of-court resolution mechanisms similar to mediation, even during the Soviet era. In any event, at a time when courts are under ever-increasing time and resource pressures, flexible dispute resolution processes are required that transcend national systems; be they of a common or civil law cultural tradition.
China has been continuously making progress to improve its arbitration environment over the past several years. In the context of the Belt and Road Initiative (the bri), the Chinese government expressly called for judicial support for alternative dispute resolution in China, including international arbitration. In response, the Supreme People’s Court of China (spc) issued several judicial documents by the end of 2017 in order to standardize and improve Chinese judiciaries’ review of arbitration-related matters. Furthermore, innovative measures were taken with respect to China’s Free Trade Zones (ftz) concerning redefinition of foreign-related factors, which had an impact on whether foreign-invested enterprises in China could submit their disputes to arbitration abroad, and under what circumstances to permit ad hoc arbitration in China. Various Chinese arbitration institutions have also updated their arbitration service.
The establishment of the China International Commercial Court (the cicc) is also a notable development as it seeks to integrate and streamline the mechanisms of litigation, arbitration and mediation. It also features such innovations as an expert committee, relaxed rules on evidence and language use. Admittedly, the cicc is still in its new-born stage and many operational rules are yet to be designed and applied. Still, parties to international commercial disputes are already eager to test this mechanism and take advantage of the accessibility to the spc via the cicc system.
This chapter addresses the role of international organizations in promoting the legitimacy in and effectiveness of alternative dispute resolution regimes. Defining legitimacy as the right to rule, allowing the parties to accept and comply with the rulings of dispute resolution regimes, the chapter argues that international institutions initially possess very little ‘source legitimacy’ or ‘constitutive legitimacy’ and are sometimes seen as lacking ‘process legitimacy’ or ‘outcome legitimacy’. Using the framework of source, process, and outcome, the chapter argues that international organizations can play a strategic role in enhancing the source and process legitimacy of alternative dispute settlement regimes, and therefore the effectiveness of these regimes by embodying and endorsing in their work key values such as procedural justice, neutrality, and independence. The chapter further suggests that international organizations have an incredibly powerful role in supplementing the legitimacy of alternative dispute resolution regimes through avenues that are created by virtue of their institutional work and knowledge.
This chapter posits that international organizations (IOs) can be positive role models in the promotion of effective dispute resolution in a number of ways. The Asian Infrastructure Investment Bank, an IO which is of relatively recent vintage, has the advantage of being able to study and absorb best practices in all international and specialist dispute settlement tribunals. It also stands poised to articulate a set of best aspirations and to transform them through implementation into reality.
This chapter provides an overview of arbitration conducted pursuant to the arbitration rules of the London Court of International Arbitration (lcia) and specifically identifies why the arbitrator appointment and challenge mechanisms set out thereunder enable a robust, efficient and transparent arbitral procedure. It also looks to the lcia’s practice of publishing vital information about lcia arbitration, including in respect of the average duration and costs of an arbitration, and calls for the broader dissemination of such information by all arbitral institutions to inform and benefit users.
This chapter is not intended to challenge the legitimacy of the role played by the World Bank in the establishment of the International Centre for Settlement of Investment Disputes (icsid). Instead, the purpose is to identify and look into the key legality and legitimacy concerns about icsid’s establishment from an international law perspective, taking into consideration the evolving legality and legitimacy discourses over the last decades. In particular, it examines the features and background of icsid’s creation, the role of the World Bank therein, the legal basis of such a role under international institutional law and the law of treaties, and the procedures employed by the World Bank in its formulation of the icsid Convention. This chapter sheds some light on how similar initiatives of international organizations may be undertaken to comply with legality and legitimacy requirements, in order to better recommend themselves to member States.