Introduction: the Asian way?

Every Westerner who has more than a passing acquaintance with the Asian region will agree that there is no such thing as an 'Asian approach' or an 'Asian culture'. Whereas Europe, North America, South America, Australia and New Zealand are each contained, single geographic blocs which tend to share at least certain general characteristics, the various jurisdictions of Asia are scattered over a huge area of the globe, often separated by vast bodies of water or impassible mountain ranges. Physically isolated, despite warring forays and multiple conquests of one and then another, the different Asian nations have developed a wide variety of legal systems, languages, histories and cultures. Over this cultural mosaic has been superimposed an array of imperial legal systems: British, Dutch, Portuguese, Spanish and American.

What exists today is an entire spectrum of approaches, often heightened by a backlash against the former conquerors. The perception of what constitutes a dispute and how one reacts to it will be entirely different in India or Singapore from the perception in Thailand, and different again from that in Indonesia, Japan or China. The cultural diversity of Asia permeates every aspect of human and business relationships. There is no 'Asian way'.

Thus it is that a report on the status and prognosis for alternative dispute resolution in the commercial field in Asia can be no more than a series of images from some of the different countries. Of the more than twenty jurisdictions in Asia, just three are covered here. These three represent points on a spectrum. Singapore holds one end place on the spectrum, with countries like Laos and Myanmar at the other. India is awakening to the benefits of ADR, while Japan is slow to acknowledge it. The end result will not be a photograph, but rather a collage.

Having said that, there are a few generalizations to be made. As a group, Asian cultures tend to be less direct and confrontational by nature than their Western (especially American) counterparts. This is not to say that conflict is unknown. However, at least in Asian cultures influenced by Confucianism, outright conflict is seen as a failure or an embarrassment. The Daoist religion, evolved over 25 centuries, teaches that individuals should harmonize with the flow of the universe and be one with it. An ancient Chinese philosopher-general, Sun Tzi, in The Art of War , taught that conflicts are best solved, if not by negotiation, then by psychology, trickery and deceit; the need to go to war is inferior strategy. Once they embark upon litigation, Asians may be every bit as tenacious, intractable and pugnacious as their Western counterparts, but this behaviour is born more of frustration than inclination. [Page32:]

What does 'ADR' mean?

The abbreviation, 'ADR', when used today with respect to contentious legal practice, is accepted to refer generally to 'Alternative Dispute Resolution'. But alternative to what is not so clear. Certainly in Asia it usually means alternatives to litigation, as in the United States. But does it also mean alternatives to arbitration, in the European sense? Those who see ADR as including arbitration are drawing a line between state court resolution of disputes and all other forms; on the other hand, by not including arbitration, Europeans draw the line between binding and non-binding forms. Today, with binding expert opinion as a clear example of an accepted ADR process, those lines are becoming blurred. In Asia, added to these semantic discussions is the sensitivity to 'Western methods' with all the baggage, both positive and negative, that they imply. As well, the distrust of some people for certain state court systems, where justice goes to the highest bidder, may in fact cause them to think of state litigation as the very last alternative for resolving disputes! The Western negotiator should be aware of these divergent perceptions and take them into account when attempting to insert an ADR clause into a contract. This could entail a preliminary negotiation of the kind of ADR the parties want, or a simple reference to the ICC Rules for ADR.1 In the same vein, even experienced mediators and neutrals who act for the first time in an 'Asian' context should be vigilant and ready to adapt to these varied perceptions.

Following are a group of reports from jurisdictions which exhibit varied approaches to ADR.2 Within China, the Mainland and Hong Kong are at very different stages. Malaysians are familiar with the concept, but not using it much. Indonesia's Islamic culture adds another variable to the equation. Visit Japan, Bangladesh, India or Korea, and there will be just as many more variants.

China including Hong Kong

The best-known body within Mainland China for the resolution of international commercial disputes is CIETAC, the China International Economic Trade Arbitration Commission. Practitioners of arbitration familiar with CIETAC procedures will know that ADR is the rule rather than the exception. Under the CIETAC Rules of Arbitration, if the parties settle their dispute outside the arbitration process, they may request the tribunal to make a consent award according to the terms of their agreement and to close the case, or they may simply apply to have the case withdrawn.3 They may also ask the tribunal to undertake mediation during the arbitral proceedings, 'by any means it considers suitable'.4 In virtually every case, a CIETAC arbitral tribunal will encourage the parties to try mediation. The mediation process itself is much more an evaluative or even directive process than the facilitative model developed over the past two decades in the West. Generally, a Chinese arbitrator has no qualms about acting as mediator, and if the mediation fails, will simply revert to the arbitration process. There do not seem to be the same scruples as in Europe about the dangers of an arbitrator learning something in the mediation process that will later affect the outcome of the arbitration proceedings. However, the CIETAC Rules do make it clear that parties are not [Page33:] permitted to use information or offered concessions from a failed mediation to bolster their positions in the resumed arbitration.5

As for other forms of ADR, such as expert opinions, mini-trials, and Dispute Review Boards or Dispute Review Advisors, these are little known in China, other than by the large multi-nationals doing business there.

In Hong Kong, ADR is developing and better known. The Arbitration Ordinance refers to conciliation, but does not define it.6 An amendment included mediation in conciliation. Some writers define conciliation as a more active process, sometimes referred to as 'evaluative' or 'settlement' mediation, where the neutral will offer an opinion on the merits and suggestions for a suitable settlement of the dispute. This contrasts with the 'facilitative' approach, where the neutral refrains from offering views on the outcome, simply facilitating the parties' discussions and encouraging them to fashion their own solution. The Ordinance provides that no objection shall be taken to the appointment of an arbitrator solely on the ground that he has acted previously as a mediator in connexion with some or all of the matters referred to arbitration.7 It also provides a three-month time limit for the conciliation proceedings, unless the parties have agreed to a longer period.8

The greater acceptance of ADR in Hong Kong is due in large part to two factors. The first is the growing dissatisfaction among users of both litigation and arbitration, who are disappointed by the enormous costs of pursuing or defending a legal action, whether in the courts or before an arbitral tribunal. Counsel fees in Hong Kong are among the highest in the world, which makes both litigation and arbitration inaccessible or at least impractical in all but the very large actions. The second factor in the rise of ADR in Hong Kong is the proactive attitude of members of the Hong Kong International Arbitration Centre.

In the construction of Chep Lap Kok Airport, one of the largest infrastructure projects in Asia, the Hong Kong Airport Authority followed the example of the Channel Tunnel partners to use a Dispute Review Board (DRB) to head off conflicts before they exploded into full-fledged disputes. The Board's seven members met on site every 13 weeks to tour the building in the company of the most senior Airport Authority executives, and were ready to intervene at any time during the life of the contract. In fact, the Board received only a few disputes to act upon. Many others were simply set aside until after the airport opened. It is arguable that the very existence of the Dispute Resolution Board deterred the submission of some claims, and that it encouraged the construction partners to settle matters among themselves immediately. However a substantial volume of disputes did end up in arbitration after completion of the airport in 1997, with some HK$ 6.3 billion (US$ 900 million) outstanding in May of 2001. Most of these have now been settled, after several years and the intervention of one or more mediators. According to DRB chair Neil Kaplan, the main lesson learned was that the DRB's mandate should have been longer.9 The DRB concept is admittedly a costly one, and for that reason, only practical for very large projects.

Akin to the Dispute Review Board is the Dispute Review Advisor (DRA), a single neutral, generally an expert in the field of the contract, who plays the same sort of role as a DRB. The Architectural Services Department of Hong Kong used this system as early as 1992 on the construction of an extension to Queen Mary Hospital. The neutral was jointly chosen and appointed by the Department and [Page34:] the contractor and attended meetings regularly on an informal basis. He had no formal role until the service of a notice of dispute, at which time he had a 14-day period in which to produce a report. He would then meet with senior managers from both sides who frequently came to an agreement on the basis of the report, failing which a summary arbitration took place. The presence of a DRA appears to have a moderating influence on the parties, minimizing the number and scope of disputes, and providing a speedy resolution of those which do arise.

Hong Kong has observed with interest the effects in the United Kingdom of the adjudication process introduced following the Woolf Report. At present there are no immediate plans to institute adjudication in Hong Kong's legal system, although the Chief Justice is currently studying how adjudication might improve the administration of cases. The Hong Kong courts are not overloaded in the way the British courts were prior to the Woolf reform.

Hong Kong's family courts have instituted a pilot project of court-annexed mediation in an attempt to keep many marital disputes away from the judges. Unofficial reports appear to endorse the system, and there is some suggestion that court-annexed mediation should become part of the legal system as a whole. The project has at least had the effect of raising consciousness. A recent study conducted by the courts showed that one in four Hong Kong litigants is aware of the existence of the court-annexed ADR procedures. According to the judge charged with the pilot project, there is little likelihood of Hong Kong courts having mandatory mediation, although he could envisage Hong Kong's judges recommending it on a regular basis to commercial disputants.10

The Tang Report, released early in 2001, was the product of a high-profile study by an ad hoc group, the Construction Industry Review Board, in response to serious complaints about the cost and quality of one of the Territory's major industries. In several of its 109 recommendations, the Tang Report advocated increased use of ADR and more immediate methods of settling disputes in the construction industry.

Of the various other modes of ADR - expert opinion, med-arb, mini-trial, etc. - little is known in Hong Kong. By far the best known mode is mediation.11 In Hong Kong, mediation generally refers to the facilitative model in which the neutral refrains from commenting on strengths and weaknesses of parties' positions and from recommending a specific solution to the dispute.

The Hong Kong Mediation Council grew out of a mediation group within the Hong Kong International Arbitration Centre. Today the Mediation Council is the recognized authority in Hong Kong, offering training and accreditation, as well as a set of rules and two lists totalling about 150 mediators, half for family cases and half for general commercial disputes.

For the time being however, on the commercial side, there are far more mediators than mediations. This may in part be due to a lack of awareness in the public domain about how meditation works. One other possible reason is that, traditionally, Chinese disputants have been accustomed to submitting their disputes to a neutral third party - usually an elder family member or respected figure in the community. When they do get to the point of calling in the third party, the Chinese expect the neutral to intervene and to suggest the desirable result. [Page35:]

In an effort to encourage public acceptance of mediation, the Hong Kong Water Authority is cooperating with the Mediation Council on a pilot project to encourage the mediation of some 3,000 water-related disputes, beginning near the end of 2001. These relatively minor disputes should, if possible, be referred to trained mediators who will volunteer their time in order to gain experience and hone their skills.

Malaysia

'ADR' has become the new buzzword in the dispute resolution industry in Malaysia. Many people speak about it, but a far smaller number may actually know what it means - let alone use it.

In Malaysia, ADR is normally a reference to mediation or conciliation. Mediation is the more common and better known of the two. Conciliation is normally the subject of curiosity as to what it actually entails and how it is practised in other countries, particularly the UK.

Is ADR well received in Malaysia? From the mediation viewpoint, the answer is positively as a concept but negatively in terms of actual usage. Often the stumbling block to more widespread usage is the lack of understanding of the process. It is generally regarded as a form of negotiation, so why would a mediator be needed when the same negotiation could be achieved 'boss-to-boss' without the added expense? On the other hand, why would one want to engage in mediation if it is non-binding?

In most cases, those who do have recourse to mediation expect the mediator to provide a 'judgment'. This is an issue of education. Despite the rising awareness of ADR in general, and mediation in particular, there remains a large body of potential users - including those in the legal fraternity - who do not know what ADR entails. Lawyers need to be more aware of the process of ADR/mediation and understand what it can achieve for their clients.

Adjudication has been incorporated into some non-standard contracts, especially those concerning large projects, as a pre-condition to arbitration. In this context, adjudication usually means first referring the dispute to a person/firm specified in the contract (normally one with general knowledge of the project) for such person or firm to make a decision that is binding until reconsidered in arbitration; this is effectively an expert's decision. However, most disputes have been settled without full implementation of the dispute resolution provisions, so there has so far been no real test of the full extent of their acceptance and effectiveness. Mediation clauses have traditionally also been included in contracts for certain major projects in Malaysia, on the basis of overseas experience. In practice, however, most of the disputes that arose were either settled or referred to arbitration, so the same conclusion can be drawn as for adjudication clauses.

The end result is that very few clients ask for mediation, conciliation or adjudication clauses when negotiating contracts and few contract drafters (legally trained or not) suggest them. Clients do however ask for arbitration clauses.

Although there is a lack of understanding as to detail, there is common awareness of the distinction between arbitration and mediation, the most commonly quoted distinction being that mediation is non-binding, whereas arbitration is binding [Page36:] like a court judgment. Many potential users of the process are of the view, or are advised, that it is better to head straight for arbitration rather than go through this extra step, which may only be a waste of time and expense. Educating a larger number of people on the merits of mediation will help in solving this problem.

Mediation is well suited to the Malaysian culture of compromise and respect for the institution of friendship. However, by the time a dispute matures into the need to use the dispute resolution clause, it generally indicates a breakdown of trust in the relationship. By then, the parties are in no mood to see the better side of their opposing number and may well be out to prove a point. The parties consider that settlement is no longer a real possibility and look for a decision by a third party. Delay is another advantage of arbitration and litigation, and one frequently utilized by respondents who have scant interest in seeing an early end of the dispute.

Not to be negative however, there has been a great effort to educate users on ADR through talks and seminars. The Bar Council, Kuala Lumpur Regional Centre for Arbitration (KLRCA) and the Construction Industry Development Board (CIDB) have organized numerous seminars to promote awareness of ADR. In addition, these bodies have conducted training courses in mediation resulting in the availability of a significant number of trained mediators. CIDB alone has 76 accredited mediators who have undergone 40 hours of training and were successful in two simulations.

Litigation circles are also increasingly interested in mediation or other forms of ADR, a natural result of acknowledged delays in the court system. Judges have been known strongly to suggest settlement negotiations between the parties and this has achieved the desired result. But Malaysia has not gone as far as Singapore, where ADR is incorporated as part of court procedure.

There is certainly much interest in ADR, and mediation in particular, and many professional bodies have been incorporating mediation clauses into their standard form contracts, setting up procedures to conduct mediations and drafting mediation rules. The form of contract published in 1998 by the architects' association, Pertubuhan Arkitek Malaysia , (PAM 1998 Form) includes a clause for the parties to resort voluntarily to mediation. The CIDB Standard Form of Contract for Building Works includes a provision for mandatory mediation. Both these provisions are supported by mediation rules. The Bar Council advocates mediation for partnership disputes.

Whenever a contract incorporates provisions for ADR such as mediation, whether by specific request of the parties or by the adoption of a standard form, then such provisions will be upheld in the same manner as other clauses of the contract. Given the growing awareness of ADR and the increasingly frequent inclusion of ADR clauses in the more recent standard forms and in bespoke contracts concerning large projects, it may be said that a request for the inclusion of ADR provisions in contracts in general is unlikely to meet with resistance. Where included, they are often a pre-condition to arbitration and would therefore be a legitimate ground upon which to apply for a stay of the arbitration pending fulfilment of this condition. There is still a lack of legal precedent, however, so it would be necessary to resort to contractual principles.

As formal ADR proceedings have so far been thin on the ground, there has been little opportunity for the many qualified mediators to become case-hardened. [Page37:] There is therefore a good case for bringing in experienced foreign mediators, but the perceived higher cost is often a stumbling block to agreement. Much talk of co-mediations has been heard, where qualified local mediators could sit with experienced foreign mediators. This would have the added advantage of a form of pupillage for the qualified locals, although here again costs will be an issue.

It may be concluded that ADR in Malaysia is alive and well, but still in its infancy. However, there is confidence and support, and the experience of countries actively practising ADR shows that with time ADR will be a major feature in the dispute resolution industry.

Indonesia

Indonesia is not, on the whole, a litigious culture. Commercial litigation is comparatively rare, relative to such jurisdictions as India and the United States, for example, and even Singapore. The state ideology, Pancasila , calls for deliberation to reach a consensus and discourages confrontation of any kind. This tenet is carried through in most legislation. For example, the Company Law requires both shareholders' and directors' meetings to try to reach a consensus on matters before a vote shall be taken. Established court practice also requires that before a case may be commenced, the plaintiff must demonstrate that an attempt has been made at amicable settlement. Indonesia's new Arbitration Law (Law No. 30 of 1999) and the rules of its arbitral institution, Badan Arbitrase Nasional Indonesia (BANI), also require the arbitral tribunal first to attempt to cause the parties to reach an amicable settlement before commencing hearings.12

The Arbitration Law, which took effect on 12 August 1999, is Indonesia's first comprehensive law on arbitration. It covers alternative dispute resolution as well, and applies to disputes of a commercial nature and all those that are within the parties' power to resolve.13 Both domestic and cross-border disputes come within its ambit. This law supercedes the previous legislation relating to arbitration, articles 615 through 651 of title I of the mid-19th-century Dutch Code of Civil Procedure, Burgelijke Reglement of de Rechtsvordering (generally known as the 'RV'),<footnote-14> the remainder of which still governs court procedure to this day.

Thus, it is clear that arbitration is not at all new to Indonesia. In fact, as could be seen from the now superseded provisions of the RV, arbitration was already recognized as a formal means of dispute resolution in the mid-19th century when Indonesia was still under Dutch control. Arbitration and, to a greater extent, other forms of ADR, such as mediation and conciliation, are the means of resolution most consistent with the Indonesian state ideology, Pancasila , as mentioned above. By far the majority of disputes - commercial as well as non-commercial - are settled through negotiation, either by the parties themselves or with the assistance of third-party consultants or mediators. Only upon repeated failure at 'amicable' resolution will parties resort to such third-party driven resolution as arbitration or litigation.

One of the innovative features of the new Arbitration Law is the inclusion of provisions enabling resolution by fully party-driven means, those more commonly [Page38:] considered as ADR. Chapter II of the Arbitration Law encourages parties to provide in their commercial agreements that they must first make a sincere attempt at direct, and then third-party mediated, settlement of their disputes. If such a settlement can be reached, it is to be recorded in writing by the tribunal, or mediator, and thereby becomes a consent award binding upon the parties and enforceable in the same manner as would be an award of the tribunal. Only where such efforts fail will the parties resort to a third-party-driven decision through arbitration or litigation.

As a general rule, then, in Indonesia parties will make every effort to solve differences outside of court or arbitration. Aside from the cultural rationale, there are more practical reasons for hesitancy to litigate, based generally upon the uncertainty and unpredictability of court judgments and the inordinate amount of time it can take to reach a final and binding decision through the judicial system. As the business community, and the public at large, become more familiar with the alternatives to litigation, we are finding a marked increase in contractual documentation calling for arbitration rather than litigation, and usually only after a serious attempt at amicable resolution and/or ADR is made.

Forms of ADR

The Indonesian perception generally gives wide berth to the individual(s) acting as mediator(s), who may in some instances go a bit further than the facilitative models more common in the West. Indonesians will first make a concerted effort to solve their difficulties among or between themselves and will be very slow to seek third party help. However, once they do seek help or advice, they will tend to rely more upon that advisor than Westerners might do. Thus in some instances one might find a mediator even suggesting and formulating a solution, a practice which might surprise many Westerners. But this would occur only where the parties have asked for such input.

Other methods applied in more advanced jurisdictions, such as expert determination, combinations of mediation and arbitration, executive review, mini-trials and others, are far less common in Indonesia thus far. As familiarity with the basic concepts of ADR and availability of qualified practitioners in these methods increase, we can expect to see disputes solved across the whole spectrum of ADR schemes. Indonesia's legal framework, in particular the general freedom of contract provisions of the Civil Code, would allow the parties to agree upon any means they wish, so long as these are not contrary to law or public policy. They can be arranged ad hoc, or through one of the various institutions which offer dispute resolution services.

ADR through institutions

Indonesia's national arbitral institution, Badan Arbitrase Nasional Indonesia (BANI), takes a modern and flexible view towards dispute resolution and is willing to apply systems that combine mediation and arbitration, or employ other creative techniques, provided both, or all, parties so desire. Although there is not as yet a formal mediation institution in Indonesia, BANI can provide mediators as well as arbitrators from its panel. The panel now includes a number of experienced foreign arbitrators as well as local ones, not only members of the legal profession, [Page39:] but architects, engineers and other professions as well. BANI makes considerable effort in vetting applicants for its panel so as to avoid the arbitral or other alternative process becoming the equivalent of privately funded litigation, with the attendant opportunity for abuse of the type that still prevails in the courts even today, despite the reform movement.

BANI has for many years offered a service aimed at settling potential disputes even before they mature. The parties may request a binding opinion on a point of law or an interpretation of a provision in their contract. Once such opinion has been given by BANI, it becomes binding and enforceable, as though a fixed provision in the contract itself. This facility has now been incorporated into the new Arbitration Law and applies to any arbitral institution.

Other facilities for ADR

MANPOWER

Indonesia's manpower regulations provide for local and central committees, comprising members of unions, employer organizations and manpower officials, to mediate employment disputes, in particular those relating to the termination of employment. No employee may be dismissed without his/her consent, unless approval is obtained from one of these committees. If an employer wishes to terminate the employment of ten or more employees at one time, application must be made to the central committee (P4P), or for fewer, to the local committee (P4D). Both sides have an opportunity to be heard, after which the committee makes its recommendation. If one of the parties is not satisfied with such recommendation, there are some appeal steps, similar to those for court cases, ultimately leading to the supreme court. But in almost all cases, the matter will be finally settled either before even applying to P4D, or based upon that committee's initial recommendation.

DEBT RESTRUCTURING: JAKARTA INITIATIVE

Asia's economic crisis of late 1997 left a great number of local banks and companies in serious financial difficulty, particularly those with heavy debt portfolios. In an attempt to assist restructure of private debt of small to medium sized enterprises, the Ministry of Finance established a body, known as the 'Jakarta Initiative Task Force', which provides a forum and facilitators to work with such debtors and their creditors in finding a way forward through debt restructuring, rescheduling, debt-to-equity swap and similar, so as to enable such companies to continue in business and not have to face dissolution. This is a voluntary facility and always depends upon the good faith of the debtor in seeking to effect such restructure, but has had some reasonable success.

Islamic commercial disputes

Indonesia has the largest Islamic population in the world, and the majority of Indonesia's more than 200 million inhabitants adhere to the Islamic faith. Although another tenet of the Pancasila philosophy involves tolerance of virtually all religions, Islam dominates the culture and the economy. Some banks are Islamic, the first and largest of which is Bank Muamalat Indonesia . In 1993, because of the success of this bank and of the Islamic insurance company Asuransi Takaful , [Page40:] an organization known as BAMUI (Badan Arbitrase Muamalat Indonesia ) was set up, at the initiative of the Indonesian Council of Religious Scholars, to provide an alternative forum for the settlement of disputes arising from business transactions primarily among Islamic parties. BAMUI applies the principle of isfaah , or forgiveness, and its decisions are confidential, as well as final and binding.

OTHERS

There are various other organizations that offer facilities for resolution of disputes. The United States Commercial Centre offers assistance to US and Indonesian companies experiencing disputes on trade and other commercial matters, by trying to negotiate and/or mediate such matters rather than have them result in the necessity to arbitrate or litigate.

Questions of interpretation of insurance policies may be brought before the underwriters' association, Dewan Asuransi Indonesia , and many Indonesian underwriters' policies contain clauses to the effect that disputes must be brought before the Dewan.

The Indonesian Centre for Environmental Law (ICEL), an environmental non-governmental organization, also supports both mediation and arbitration of environmental disputes.

INFORMAL ADR

Despite the numerous avenues for formal ADR, by far the majority of disputes are still settled informally, usually through negotiation by the parties themselves and/or their counsel. The formal practice of commercial mediation is not widely understood here and many Indonesian businesspersons seem to mistrust the procedure as they do not comprehend that it is not a binding process and that it is party-driven. The key lies in the education of all concerned, in both the legal profession and the business world. Although there are courses in mediation highlighting the differences between it and other non-binding means of ADR, on the one hand, and arbitration or litigation, on the other, the educational process looks to be a long and arduous one.

Conclusion

This rapid survey leads us to observe that the processes of ADR as it is known in the West, although for the most part less developed and less accepted in most Asian countries, are in fact attracting substantial attention in the business world. Given the cultural heritages in the many different jurisdictions, we are likely to see ADR develop in Asian locations as a kind of hybrid. The Chinese, the Indonesians or others will copy Western techniques to import them into their own legal cultures, in the process adapting them to meld with their own cultural attitudes, beliefs and traditions. What this means is that the investor going into Asia, or the mediator working in Asia, should realize that a procedure with a familiar name may in fact be a somewhat different process once it has been translated into a local context in Asia.

1
Under the ICC ADR Rules, if the parties do not agree on another form of ADR, mediation is the fallback. These Rules do not, however, address the distinction between 'facilitative' and 'evaluative' or 'settlement' mediation, mentioned below.

2
Our focus throughout this article will be on ADR as applied to commercial disputes.

3
CIETAC Rules of Arbitration, art. 44.

4
Arts. 45 and 46.

5
'Article 50. If mediation fails, neither party will be permitted to quote as a basis for its claims, defence and/or counter-claims in subsequent arbitration proceedings, judicial proceedings or other proceedings, any statements, opinions, views or suggestions with regard to the mediation which have been published, spoken, proposed or admitted and accepted or negated by the other party or by the arbitration tribunal during the mediation process.'

6
Arbitration Ordinance (Cap. 341), art. 2A.

7
Ibid., art. 2A(2)(a).

8
Ibid., art. 2A(3).

9
Address at a conference on ADR in Asia held in Hong Kong in May 2001 under the auspices of the ICC Hong Kong China Business Council, the Hong Kong Mediation Council and the Chartered Institute of Arbitrators.

10
Discussion at the ADR conference, referred to supra note 9.

11
The term conciliation is more or less interchangeable with mediation amongst parties; trained mediators generally use the term mediation in Hong Kong.

12
Arbitration Law, art. 45; new BANI procedural rules, § 20(a).

13
Hence, divorce and bankruptcy, for example, are excluded.

14
State Gazette No. 52 of 1847, in conjunction with No. 63 of 1849.