8CM X 8CM 8CM X 8CM BELT AND ROAD SUMMIT, 11 SEPTEMBER 2017, HKCEC

STRATEGIES AND PRACTICAL TIPS

DISPUTE AVOIDANCE, MANAGEMENT AND RESOLUTION FOR BELT & ROAD PROJECTS

Justin D’Agostino, Global Head of Practice - Dispute Resolution; Regional Managing

Partner - Asia and Australia, Herbert Smith Freehills LLP

+852 21014010, justin.dagostino@hsf.com

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1 DISPUTE AVOIDANCE

• How do companies avoid formal disputes?

• Client research over the past decade

https://www.herbertsmithfreehills.com/adr

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EARLY CASE ASSESSMENT (ECA)

• Systematic conflict management processes

• “ECA is just a concept. It’s like mediation. It doesn’t matter how you do it,

under whose rules. The whole point is that you do it.”

• Early investigation of facts and legal issues

• Assessment of commercial interests, relationships and DR options

• Cost analysis (internal and external)

• Better communication (internally/with counterparty) more informed

strategy decisions/avoidance of formal disputes

• Could the B&R promote ECAs?

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Project

Management

Process

Technology Outsourcing

Experience

Data

Analysis

2 DISPUTE MANAGEMENT

2. Legal Process Improvement

1. Applying Formal Project Management

Tools and Techniques to Disputes

3. Technology – Digital

Collaboration Platforms

5. Leveraging Data

6. Enhancing Overall

Experience

DISPUTE

MANAGEMENT

Together, these techniques can be used as an intrinsic toolkit for B&R contracts and dispute resolution

4. Discovery/Forensic Review –

Outsourcing

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3 DISPUTE RESOLUTION

Arbitration vs Litigation for B&R disputes

• Flexibility of arbitration - applicable law, seat, tribunal members, language

• Very limited appeal against arbitral awards

• Ease of cross-border enforcement of arbitral awards

• Arbitration is private and confidential

• Commercial arbitration:

commercial party v commercial party

• Investment treaty arbitration:

Investor v host state

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Mediation for B&R disputes

• Failed to flourish in Asia

• Actual use of it lags behind positive attitudes to it

• Global Pound Conference

29 conferences worldwide on the future of commercial disputes and the

role of mediation

Strong support for efficiency, collaboration and mediation in dispute

resolution

• When do parties mediate in Asia and why? Improving Conflict

Management

• Combining processes (mediation followed by arbitration)

• A universal disputes escalation clause for the B&R?

3 DISPUTE RESOLUTION (CONTD)

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3 HONG KONG AS A VENUE FOR B&R DISPUTES

• Strategic geographical location as Asia’s world city

• International legal hub with highly regarded judges,

arbitrators, mediators and practitioners

• Arbitration and mediation-friendly jurisdiction, alongside

courts which exercise a strong rule of law

• One country, two systems – familiarities for Chinese and international parties

• Interim relief available in Hong Kong arbitration (cf China arbitration)

• Consolidation, joinder and commencement of single arbitration under multiple

contracts

• Well-placed venue for investor-state arbitration

• Legislative reform: third party funding for Hong Kong arbitration and mediation;

Apology Law to promote mediation/settlement