A Brief Note of "Enforcement of Mediated Settlement Agreement and Arbitral Award - A race for efficiency"
Speaker: Cecilia Wong Date: 1-2 December 2016
International Bar Association Conference
Each year, the IBA holds a number of conferences throughout the world to provide a platform for the dissemination of specialist legal information such as technology law and taxation. This year, on 1-2 December, a conference on the topic “Mediation v Arbitration: Best Friends or Best Enemies? A view from Asia” was held in Hong Kong by the IBA Arbitration Committee and the Mediation Committee. Participants from 19 countries addressed a range of issues including ethical matter in dispute resolution and approaches in drafting mediation and arbitration clauses.
Our partner Mrs. Cecilia Wong was invited as a speaker on this distinguished event where she shared her views on the “Enforcement of Mediated Settlement Agreement and Arbitral Award”. This article is a summary of her speech.
Alternative Dispute Resolutions
Mediation and Arbitration are widely used in nowadays vibrant commercial setting of Hong Kong as alternative dispute resolutions. They are in line with the objectives of the 2007 Civil Justice Reform to enhance costs effectiveness of civil proceedings and to ensure cases be dealt with in a practical manner and with procedural economy.
The strict confidentiality of the proceedings and enforcement of mediation and arbitration is paramount concern of parties to efficiently settle their dispute in a timely manner.
Enforcement of Mediated Settlement Agreement
Mediation Ordinance (Cap.620) is the legislation governing mediation procedures, yet the ordinance does not specify how to enforce mediated settlement agreement in Hong Kong.
A mediated settlement agreement will be treated as a binding contract after it is signed by parties. Parties have autonomy to decide they are to be bound by the said settlement agreement based on their own interest, costs, time or emotion. When the agreement between the parties is reached, it can be enforced by common law rules.
Alternatively, it can be incorporated into a court order by consent of parties. If there are future disagreements about interpretation of the consent order, the court will resist setting aside the mediated settlement agreement reached properly and fairly by the parties in order to ensure certainty of enforcement of the mediated settlement agreement.
It is the voluntary nature in enforcing the mediated settlement agreement that enables parties to be more willing to be bound despite lack of statutory mechanism.
Enforcement of Arbitral Award
The Arbitration Ordinance (Cap.609) introduced in 2011 incorporates legislatives regimes for both domestic and international arbitrations. An arbitral award can be enforced in the manner of a judgment of the Court if leave is granted by the Court. The Arbitration Ordinance provides grounds for settling aside arbitral awards. Yet, the threshold is high to refusing to enforce an arbitral award.
It is worth noting that arbitral awards made in Hong Kong can be enforced in all State parties to the New York Convention, which comprises of more than 150 states. The Convention provides that each member state shall recognize arbitral awards of other states as binding and enforce them in accordance to local rules.
An agreement was also signed in 1999 for mutual recognition and enforcement of arbitration awards between Hong Kong and Mainland China.
Conclusion
In light of the Civil Justice Reform, alternative dispute resolutions, in particular mediation and arbitration, are becoming increasingly popular.
Mediation and arbitration complement each other to cater to different needs and concerns. For instance, if parties wish to settle the matter through mediation after the arbitration proceedings have commenced, the mediator can be granted the powers of an arbitrator for the purpose of preparing consent award. This award is a mediated settlement agreement agreed by the parties and has the same effect as an arbitral award. In short, together they have assisted Hong Kong maintain its competitiveness in attracting commercial opportunities.
Each year, the IBA holds a number of conferences throughout the world to provide a platform for the dissemination of specialist legal information such as technology law and taxation. This year, on 1-2 December, a conference on the topic “Mediation v Arbitration: Best Friends or Best Enemies? A view from Asia” was held in Hong Kong by the IBA Arbitration Committee and the Mediation Committee. Participants from 19 countries addressed a range of issues including ethical matter in dispute resolution and approaches in drafting mediation and arbitration clauses.
Our partner Mrs. Cecilia Wong was invited as a speaker on this distinguished event where she shared her views on the “Enforcement of Mediated Settlement Agreement and Arbitral Award”. This article is a summary of her speech.
Alternative Dispute Resolutions
Mediation and Arbitration are widely used in nowadays vibrant commercial setting of Hong Kong as alternative dispute resolutions. They are in line with the objectives of the 2007 Civil Justice Reform to enhance costs effectiveness of civil proceedings and to ensure cases be dealt with in a practical manner and with procedural economy.
The strict confidentiality of the proceedings and enforcement of mediation and arbitration is paramount concern of parties to efficiently settle their dispute in a timely manner.
Enforcement of Mediated Settlement Agreement
Mediation Ordinance (Cap.620) is the legislation governing mediation procedures, yet the ordinance does not specify how to enforce mediated settlement agreement in Hong Kong.
A mediated settlement agreement will be treated as a binding contract after it is signed by parties. Parties have autonomy to decide they are to be bound by the said settlement agreement based on their own interest, costs, time or emotion. When the agreement between the parties is reached, it can be enforced by common law rules.
Alternatively, it can be incorporated into a court order by consent of parties. If there are future disagreements about interpretation of the consent order, the court will resist setting aside the mediated settlement agreement reached properly and fairly by the parties in order to ensure certainty of enforcement of the mediated settlement agreement.
It is the voluntary nature in enforcing the mediated settlement agreement that enables parties to be more willing to be bound despite lack of statutory mechanism.
Enforcement of Arbitral Award
The Arbitration Ordinance (Cap.609) introduced in 2011 incorporates legislatives regimes for both domestic and international arbitrations. An arbitral award can be enforced in the manner of a judgment of the Court if leave is granted by the Court. The Arbitration Ordinance provides grounds for settling aside arbitral awards. Yet, the threshold is high to refusing to enforce an arbitral award.
It is worth noting that arbitral awards made in Hong Kong can be enforced in all State parties to the New York Convention, which comprises of more than 150 states. The Convention provides that each member state shall recognize arbitral awards of other states as binding and enforce them in accordance to local rules.
An agreement was also signed in 1999 for mutual recognition and enforcement of arbitration awards between Hong Kong and Mainland China.
Conclusion
In light of the Civil Justice Reform, alternative dispute resolutions, in particular mediation and arbitration, are becoming increasingly popular.
Mediation and arbitration complement each other to cater to different needs and concerns. For instance, if parties wish to settle the matter through mediation after the arbitration proceedings have commenced, the mediator can be granted the powers of an arbitrator for the purpose of preparing consent award. This award is a mediated settlement agreement agreed by the parties and has the same effect as an arbitral award. In short, together they have assisted Hong Kong maintain its competitiveness in attracting commercial opportunities.
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黃吳潔華律師
吳建華律師行合伙人 資深的調解員，參與過的調解範疇廣泛，包括各種複雜國際商業糾紛、各類合約糾紛、股東及董事糾紛、合夥人糾紛、商標及侵權調糾紛、專業疏忽、土地強制售賣、大廈管理糾紛、雷曼兄弟相關投資產品爭議、政府或機構與民眾糾紛、中港兩地糾紛、建築及其他爭議案件。 |
擔任的公職包括： 香港律師會理事；香港律師會調解委員會主席；聯合調解專線辦事處有限公司董事；香港調解資歷評審協會有限公司委員會 副主席；香港終審法院首席法官調解工作小組組員；律政司司長調解督導委員會委員；上訴審裁團(香港法例第123章建築物條例)主席等。 |
