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, [email protected]
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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