IPBA 2019: Mediation in dispute resolution for cross-border investments

Posted in Insights

A distinguished panel led by SIMC CEO Aloysius Goh at this year’s IPBA highlights the future of cross-border mediation ahead of the Singapore Convention on Mediation.

Hybrid dispute resolution mechanisms in Asia have flourished alongside the region’s growth as a business hub.

Based on SIMC’s statistics, cases that go for mediation have become more complicated, an indication that parties are confident about a positive outcome from the process, said SIMC CEO Aloysius Goh. Chairing a panel session at IPBA last Friday, he observed that in over 90 per cent of SIMC’s caseload, at least one party is from Asia.

SIMC has also administered mediations for family-owned business disputes and in many of these cases, high net worth family members attend the negotiations because they want to be part of the decision-making.

SIMC CEO Aloysius Goh on trends in international mediation

In Hong Kong, high-stakes, complex disputes are being given over to mediation too, said fellow panellist Dr Christopher To. Apart from it being more cost effective, its confidential nature also diverts the matter away from unwanted public attention.

Mediation for multi-party, multi-billion-dollar tangles has become choice as it dissolves disputes quickly and effectively. Sometimes, the key to unlocking years of impasse may just lie in a simple apology.

The settlement agreement at the end also has teeth. In 2015, Vietnam revised its Civil Procedure Code to allow out-of-court settlement agreements to be enforced. However, it does not recognise agreements reached in foreign proceedings.

The Singapore Mediation Act 2017 also recognises and enforces the same while the Arb-Med-Arb Protocol administered by SIAC and SIMC allows a settlement agreement to be converted into an arbitral award in over 150 countries under the New York Convention.

In August this year, Singapore will host the signing of the UN Convention on International Settlement Agreements Resulting from Mediation, an instrument that could see cross-border mediated settlement agreements being enforced internationally. This would address the common criticism that an international settlement agreement is only binding contractually and therefore not enforceable in domestic courts.

A game-changer, the Convention will change the way mediation is practised in Asia. “Its code of ethics, mediation styles, and what mediation entails will evolve,” said Mr Goh. “As the Asian voice reverberates within mediation circles, it will shape how international mediation is practised in future.”

Jean-Claude Beaujour, a CEDR-certified mediator from France, also hailed the Convention as a tool that would harmonise mediation across the 27 countries within the EU bloc. He also called for more business professionals to be trained as international mediators.

“As the Asian voice reverberates within mediation circles, it will shape how international mediation is practised in future.”

Lee Seung Min, a partner at Shin & Kim, on the mediation landscape in South Korea.

Yet, international mediation remains an enigma for some. “Mediation is understood very differently in Korea. In a court-annexed mediation, the judge has full discretion to adjourn, arbitrate or overwrite decisions made by parties,” said Lee Seung Min, a partner at Shin & Kim. While the panel acknowledged that signing the Convention would improve business and investor confidence, Ms Lee said Korea would need a lot of persuasion on the Convention’s implications.

Addressing the concern that mediation would cut out significant profits from litigation in future, Dr To said that if counsels advised well, happy clients will return with more referrals. He added that many disputes in Hong Kong are now settled halfway through court proceedings. This trend has also birthed another: Barristers becoming mediators as litigation numbers go down.

Mediation In Dispute Resolution For Cross Border Investments panel session at IPBA 2019. From left: Trinh Nguyen, Trinh Nguyen & Partners; Aloysius Goh, SIMC; Jean-Claude Beaujour, international attorney; Chiam Tao Koon, Allen & Gledhill; Dr Christopher To, accredited mediator; Lee Seung Min, Shin & Kim.

So how does one find a right mediator and what makes him/her good? “Some people are born mediators, others are able to communicate effectively,” Dr To said. “Consistency and predictability are also key elements in a trusted mediator.” 

SIMC does the homework for its users by distilling the real gems for its international panel. It also keeps in touch with each individual to stay ahead of industry happenings. As the number of cases and advocacy rise in tandem, the prediction is that mediation will no longer be considered competition, but commonplace for any kind of dispute.

Dr Christopher To and Ms Lee Seung Min are on SIMC’s international and specialist mediator panel respectively.