This chapter focuses on the developmental aspect of dispute resolution based on the experience of the Asian Development Bank (adb) over the last twenty years. adb has undertaken projects that support dispute resolution mechanisms in its developing member countries with the aim of achieving development impacts towards a more inclusive and sustainable economic development in Asia and the Pacific. This chapter posits that the promotion of dispute resolution through thematic or targeted interventions has yielded more effective results compared to larger-scale interventions through broader justice sector reform programs. This is demonstrated through adb’s recent experience financing and implementing technical assistance projects under its Office of General Counsel’s Law and Policy Reform Program focused on environmental and climate change adjudication, access to justice in gender-based violence cases and creating and strengthening international arbitration laws to foster foreign direct investment and cross-border trade. adb does not necessarily shy away from ambitious investments in the justice sector, but recent experience has shown that through smaller, well-targeted interventions with strong ownership by key stakeholders within their absorptive capacity, it has been able to demonstrate meaningful impact in the area of dispute resolution.
The regionalism versus internationalism debate has given rise to a rich discourse in international trade law. Regionalism is viewed either as a way to promote international integration, or to protect regions and thus against the multilateral spirit that characterizes a truly global organization. This debate is explored in international financial law and international financial institutions therein, with the Asian Infrastructure Investment Bank (aiib) and New Development Bank as examples. This chapter suggests that ‘principled’ dispute regulation, having an intellectual anchor in ‘multilevel governance’, provides a new dimension to underpin regional governance. Exploring China’s Belt and Road Initiative (bri) has the potential to redefine multilevel trade governance and the laws that establish its order. As a result, new ‘Eastern’ international legal norms are emerging. A new international trade and investment order will necessarily lead to disagreements over its interpretation. However, existing dispute resolution mechanisms may not work effectively. In order to overcome this practical challenge, this chapter examines some important legal aspects of the bri and offers a new concept of dispute regulation. For the central argument, mediation will be specifically analyzed to inform a new aiib paradigm. The chapter intends to begin a discussion of some emerging trends in international trade and relevant rules, in the context of the aiib.
This chapter will discuss how international arbitration institutions have been innovating and improving rapidly in the last few years in order to meet the needs of users. Institutional rules have introduced provisions for emergency arbitrators, expedited proceedings and summary dismissal, just to name a few. Whilst there is still room for improvement, such innovations have helped to keep arbitration relevant and effective. The competition between various arbitral institutions has also contributed positively to spur arbitral institutions to do better. The beneficiaries of this dynamic are the parties that use international arbitration for dispute resolution as well as international trade more generally.
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.