Dispute Resolution coursework:When drafting dispute resoluti

1. Introduction介绍

 

New Shorter Oxford English Dictionary（1993）将争议定义为“逻辑论证”或

“对提出和反对论据的主题进行口头或书面讨论”，或“争论或反对某事或某人，争论，争议”的实例等。在实践中，有各种各样的纠纷本文只讨论商业纠纷，尤其是合同纠纷。在签订，执行和终止合同，合同的设立和执行，联系的有效时间，合同内容的解释，合同责任，修改和撤销，合同转让等方面，所有这些问题都可能导致合同纠纷。虽然合同是在当事人一致宣告意图的基础上缔结的，但由于当事人的立场不同，他们对某些问题的理解倾向于得出冲突的结论。在某种程度上，合同纠纷是不可避免的。

The New Shorter Oxford English Dictionary (1993) defines dispute as“A logical argument” or

“An oral or written discussion of a subject in which arguments for and against are put forward and examined”, or “An instance of disputing or arguing against something or someone, argument, a controversy”etc..  In practice, there are all kinds of disputes. This essay is only talking about business disputes, especially contract disputes. In the process of signing, implementing and terminating a contract, the establishment and the execution of the contract, the effective time of the contact, the explanation of contract contents, the contract responsibilities, modification and rescission, the assignment of contract, etc., all these issues may cause contract disputes. Although the contract is concluded on the basis of the parties unanimous declaration of intentions, because the different position of the parties, their understandings to certain issues tend to come up to conflict conclusions. To some extend, contract disputes are inevitable. 

 

2. Ways of dispute resolution争议解决方式

 

Contractual dispute usually involves two aspects: one is the factual dispute; the other is the dispute over laws, such as, how the contract agreement should be interpreted and applied. In general, there are four ways to solve a contractual dispute: firstly, voluntary negotiation between the two or more parties; secondly, mediation; thirdly, arbitration; fourthly, litigation. The first method is often not easy in that the dispute has to be solved by a voluntary negotiation between two or more parties, because in the event of a dispute, the relationship between all parties of contract must have become tense and in many cases it is not easy to compromise with each other. The fourth method is to settle disputes through litigation, which often involves lengthy and complicated legal proceedings and expensive costs and is not conducive to maintaining trade secrets and sensitive information if litigation is conducted in public. In the above-stated cases, mediation and arbitration have offered two alternative effective solutions.

 

2.1 Features of negotiation and its applicable scope

Negotiation is widely used in real cases. Two or more people or parties, who intend to reach an understanding, resolve difference between parties, gain certain advantages from the communication of dialogue, or come into an agreement, to bargain for individual advantage such as contract price, to satisfy various interests of the parties, all these intentions can be the purposes of negotiation. 

Negotiation is a way of dispute resolution. It bases on contract liability regulated by the contract and the actual situations of the parties. It aims to negotiate an effective way to solve the disputes, rather than bring it to the judicial proceedings. However, because negotiation agreement lacks legal binding, some people may renege and make the negotiation agreement become a dead letter, the dispute resolution time shall be delayed. 

2.2 Features of mediation and its applicable scope

In the Civil Procedure Law for Mainland, there are also provisions related to mediation. It is stipulated that the mediation shall be mainly carried out by the court, if the mediation is successful, the court should produce a mediation document. This shows that the court plays an important role in mediation. However, in Hong Kong, the court will not directly participate in mediation. The Hong Kong Mediation Ordinance (Cap. 620) came into effect on January 1, 2013. This Ordinance applies to all and part of the mediation conducted in Hong Kong. Under Hong Kong Law, mediation mainly means that one or more impartial individuals assist the contending parties to find out the points of dispute, seeking and formulating solutions and communicating with each other and reaching an agreement on all or part of resolution to the dispute, without adjudication of the related dispute or any part of it. If a mediation agreement can be reached, the legal validity of the agreement is equivalent to any general contract and the agreement may also be enforced in accordance with the general principles of contract law.

According to Section 4(1) of the Mediation Ordinance (Cap. 620), “Mediation is a structured process comprising of one or more sessions in which one or more impartial individuals, without adjudicating a dispute or any aspect of it, assist the parties to the dispute to do any of the following: 

Identify the issues in the dispute;

Explore and generate options;

Communicate with one another;

Reach an agreement regarding the resolution of the whole, or part, of the dispute” 

Normally, the impartial individuals are trusted and chosen by the parties, they take mutual understanding and mutual accommodation of the parties as a principle. Compared with negotiation, it is highly possible to reach a resolution. However, just like negotiation agreement, mediation agreement also have no legal binding, it shall make the dispute resolution unsatisfactory sometimes. In the case HYUNDAI ENGINEERING AND CONSTRUCTION CO LTD v. VIGOUR LTD [2004], the plaintiff and the defendant entered into a March Agreement, to construed this March Agreement properly, it requires the parties bound themselves to negotiations and mediation, prevent from suing each other “while negotiations and mediation were taking place and the dispute resolution regime established by the document remained operative”. In the March Agreement, there are these words, "not bring any ... court action forever" and "in any case no party will exercise the right to sue against each other", the Judge thinks this kind of clause merely reflect the parties’ belief, which have been over-optimistic “that the March Agreement provided a mechanism whereby their differences would definitely be resolved such that there would never need to be recourse to litigation”. 

An important clause in Hong Kong's Mediation Ordinance is to provide for the confidentiality of mediation communications. Except for a few exceptions, no one may disclose the contents of a mediation communication, especially the contents of the mediation. Generally speaking, evidence of a lawsuit can not be taken unless the court approves. This is to ensure that both parties can speak out freely in the process of mediation without fear of saying something unfavorable to themselves during the mediation process or revealing some information or documents that are unfavorable to them in case when the mediation fails and litigation is needed to resolve the dispute, the above information can be used as evidence by the opposite party to persecute. One of the important factors that ensure the mediation can effectively solve the dispute is who is to act as a mediator? A good mediator, as an "intermediary", should have two characteristics: firstly, it must be independent, impartial and objective in the process of helping both sides to solve the problem; secondly, it must have some knowledge and experiences of the dispute between both parties, Otherwise, it is hard to come up with a constructive and persuasive solution.#p#分页标题#e#

In Hong Kong, in order to become a recognized and professional mediator, one must complete some specific courses and training. Many accredited mediators are barristers and lawyers practicing in Hong Kong. They basically have certain knowledge and experiences in dealing with commercial disputes. Based on the good traditions and reputations of personal integrity of legal practitioners in Hong Kong, it is easier for barristers or lawyer mediators to be recognized as independent by the people from different countries and regions. From a practical point of view, Hong Kong enjoys an excellent geographical location and perfect mediation supporting facilities. For example, the Hong Kong International Arbitration Center has established the Hong Kong Mediation Association and formulated the "Mediation Rules." In addition, there is a Hong Kong Mediation Center in Hong Kong that can provide related services and has formulated a "Regulations of Mediation."

 

2.3 Features of arbitration and its applicable scope

If mediation unfortunately fails, the contending parties may also consider requesting for an arbitration in Hong Kong. The Arbitration Ordinance of Hong Kong (Cap. 609) came into force on June 1, 2011 and it applies to arbitration conducted in Hong Kong. As for the regulatory procedures regarding arbitration, Hong Kong has mainly adopted the specific provisions of the Model Law of United Nation Commission on International Trade Law (UNCITRAL) with some modifications and supplements. This is an internationally accepted arbitration rule that is acceptable to people from different countries and regions.

Arbitration is conducted in accordance with the terms of the parties’ arbitration agreement, usually found in the provisions of a commercial contract between the parties. Compared with other dispute resolution techniques, it has some features: when come to an arbitration, a dispute or difference between parties shall be formulated clearly; the arbitration agency shall appoint an arbitrator who may resolve the dispute and exercise a juridical function; the parties need to provide evidence to support their claims in dispute; and the parties must have agreed to accept the decision of arbitration tribunal. 

On the basis of arbitration agreement which has stipulated in the contract or agreed after dispute happening, the parties submit the dispute to the arbitration agency which appointed arbitrators who act on behalf of the parties in disputes resolve the contract disputes. The parties have agreed to accept the decision which shall be based on arbitration rules and relevant laws. If the parties are reluctant to negotiation or mediation, or if negotiation or mediation fails, the parties could apply to the arbitration agency for arbitration and apply for compulsory execution in accordance with effective arbitration agreement. 

2.3.1 Effectiveness of arbitration agreement

Arbitration is a way to solve contract dispute. According to effective arbitration agreement, the parties submit the dispute to arbitration agency for dispute settlement. Once arbitration agreement comes into effective according to the laws, the parties shall not submit the dispute to court again. Compared with litigation, arbitration has some advantages, it is fast, convenient, highly confidential, easy to facilitate, etc., which can also fully embody the autonomy of parties, maintain and develop the commercial relationships between the parties. 

The parties submits dispute for arbitration, which should base on a valid arbitration agreement. The contents of arbitration agreement have three elements: it must have a declaration of the parties’ intention for arbitration; it must have the arbitration items; it must have a selected arbitration commission. For the first and the third regulations, sometimes the parties do not fully understand the arbitration system and the settings of arbitration agency, they are easily making non-standard arbitration agreement when drafting the contract dispute resolution agreement. 

Some arbitration agreement stipulates the place of arbitration, but does not stipulate arbitration agency; or although it has stipulated arbitration agency, but does not make the agreement clear and standard. For example, this kind of arbitration agreement is not standard and might cause some jurisdictional dispute to the parties: “the dispute shall be settled by arbitration in a place of signing a contract or a place of implementing a contract”, “the dispute shall be settled by arbitration in a place of dispute happened”. this kind of clause is vague because there might have two or more contract signing and implementing places, the dispute may also happen in different places, but the arbitration agency must be certain and unique. Sometimes the parties draft dispute resolution agreement like that, “the dispute shall submit to the city’s arbitration agency for settlement; the dispute shall submit to related departments for arbitration; the dispute shall be arbitrated by the local arbitration agency; the dispute shall be settled by the city’s economic contract arbitration agency, etc.”. This kind of arbitration agreement is also not proper and not standard.

Some arbitration agreement stipulates two or more arbitration agencies. The parties might draft dispute resolution agreement like that, “the dispute may be submitted to arbitration agency of city A, or relevant arbitration agency of city B”. What’s worse, on one side, the parties agree on arbitration, on the other side, they also select a litigation. For example, dispute resolution agreement like that is not acceptable: “when dispute happening, the parties could apply to an arbitration agency of the place where contract implemented, or the parties could bring a litigation to the court directly; the dispute can be resolved by arbitration agency of the contract implementation place, if the parties are not satisfied with the arbitration, it could bring a litigation to the court, etc.”

In case TOMMY C.P. SZE & CO. v. LI & FUNG (TRADING) LTD. AND OTHERS [2002] , the plaintiff bring a litigation to the court, however one of the defendant has applied for a stay of the court proceedings according to the Arbitration Ordinance (Cap 341). This Defendant relies on clause 25(b) of the terms and conditions on the reverse of the Placement Memoranda: "All disputes at any time ...... shall be referred to the arbitration as a single arbitrator who shall be agreed ......, within 14 days of the dispute arising. ....... The arbitration shall be conducted in accordance with the Arbitration Ordinance for the time being in force in Hong Kong."  The plaintiff responses, “Clause 25(b) is not an arbitration agreement in the true sense in that it does not require the parties to submit their disputes or differences only to arbitration. ... where the arbitration procedure in clause 25(b) has become inoperative or incapable of being performed, then court proceedings are in any event permissible...”  After analysis, the Judge suggested, “If I have somehow omitted reference to any other cause of action alleged by the Plaintiff against the 1st Defendant, it is because the Statement of Claim is not easily understood in many parts. ” 

This essay illustrates all kinds of non-standard arbitration agreements above. Disputes resolution is governed by arbitration agreement, which trigger the arbitration process. Normally, there are two forms of arbitration agreement. One form is called as an arbitration clause. The contracting parties agree on a clause, in which the parties agree to resolve any dispute arisen under the contract. In Hong Kong, many trades and industries have their own way to stipulate applicable standard arbitration clause, they can only modify the clauses so as to suit the parties real circumstances. The other form happens when the parties are already in a dispute, however the parties’ contract does not contain any arbitration clause. In order to select the way of arbitration to resolve dispute, the parties may enter into a new agreement for arbitration matters. This kind of form is called as a submission agreement. Occasionally, a court order or the operation of a statute may require dispute referring to arbitration. In real cases, although these agreements are not always identified as invalid, most of them shall be not working because the parties arbitration intentions are unable to clearly understand, or it cannot confirm the arbitration agency. 

 

2.3.2 Clarity of arbitration items

In addition, how the parties stipulate the arbitration items is also an important issue. In practice, the contractual party needs to pay attention on how to confirm the arbitration items in accordance with their own situation. For example, the contractual parties maintain a long-term relations of cooperation, both sides come into an new contract with arbitration clauses before the former contract being fully fulfilled, and the two contracts’ implementations are crossed. This kind of situation may lead to a result, that is, some disputed items of the parties may belong to arbitration jurisdiction, and some other disputed items may not. Therefore once contract dispute happens, one contractual party may want arbitration, and the other party may want litigation. Therefore, in order to prevent similar problems, when the parties discussing arbitration agreement, it would be better to include the former dispute resolution agreement with the new contract dispute resolution agreement . 

 

4. Features of litigation and its applicable scope

 

Litigation (or suit), refers to any proceeding by a party or parties against another in a court of law.  Litigation is the last way to resolve a contractual dispute. According to the requests of the parties, the facts and the laws, the court shall make decisions accordingly and take this way to settle the dispute. If the parties did not conclude an arbitration clauses, or the arbitration clauses are invalid, the parties may bring a litigation to the court. #p#分页标题#e#

Litigation is a most widely used way for contract dispute resolution. It is a compulsory jurisdiction, if there is no effective arbitration clause in the contract, or no other effective arbitration clauses reached after dispute happened, even it is not stipulated in the contract, the parties still have the rights to bring a litigation in a court to solve the contract dispute.

Some problems need to be observed when choosing the way of litigation to solve the contract dispute. For contractual disputes, through drafting dispute resolution agreement, the parties could freely decide to choose a proper court to solve the contract disputes. The parties could choose a favorable court for contract dispute, it often chose the local court to save costs, or it may choose other court to avoid the adverse impact of local protectionism, etc. It should clearly understand, the rights to choose a court for dispute resolution has conditional restrictions. 

The selected court must be associated with the contract, that is, in the place where the defendant has his domicile, the place of signing contract, the place of implementing contract, the place where the plaintiff has his domicile, the place where the subject matter exists, etc. In case CHINACHEM FINANCIAL SERVICES LTD v. CENTURY VENTURE HOLDINGS LTD [2015], the plaintiff is a Hong Kong company, the defendant specialised in handling of claims and debt disputes in Mainland China, mainly Beijing. The Plaintiff wants to exclude the jurisdiction of other courts, it claimed Hong Kong would be the appropriate forum given “(a) the parties’ intention ... to resolve disputes within the Hong Kong jurisdiction, (b) the want of identity in parties/issues, and (c) Hong Kong being a convenient jurisdiction to resolve the dispute” . However, the defendant disagreed because the Agreement provided for the non-exclusive jurisdiction of Hong Kong courts. As stated by the defendant, the place where the contract has been implemented is Beijing, therefore the Beijing court can also take jurisdiction on the dispute items. After analysis, the Judge suggests, the plaintiff and the defendant commenced proceedings in Hong Kong and the PRC respectively which resulted in parallel litigation in both jurisdictions, even the Hong Kong court has accepted the case or has made a decision, it shall not affect the Bejing Court’s jurisdiction to handle this case. 

When drafting dispute resolution agreement, the parities should state the contract term clearly, choose a certain and proper court to solve the issue. The dispute resolution agreement cannot vague and cannot choose two or more courts to solve the disputed items. For example, if the dispute resolution agreement stipulates, “based on this contract, any litigation brought by the parties, may submit to the court where the plaintiff has his domicile”. This kind of clause may not be considered as invalid in general situation; however, if the parties file litigation at the same time, it is easily causing jurisdiction dispute, which may cause the extension of the proceedings, increase the cost of litigation, and bring a lot of unnecessary trouble to the contractual parties. 

 

5. Differences of arbitration and litigation

 

The advantage of solving contract dispute via arbitration in Hong Kong is the same as that of solving dispute via mediation in Hong Kong. For example, the independence of the judicial system in Hong Kong is internationally accepted, as well as a perfect supportive faculty and general secrecy of the arbitration process. But there are also some special things of arbitration, especially compared with the litigation.

Firstly, one of the differences between Hong Kong arbitration and litigation is that at the time of arbitration, both parties can select an appropriate arbitrator by themselves. There are many qualified arbitrators in Hong Kong who can speak multiple languages including Chinese and English. Many of them are barristers and lawyers who are experienced in handling the relevant commercial disputes .

Secondly, generally speaking, the procedures of arbitration in Hong Kong are similar to the procedures of conducting litigation in Hong Kong. Both parties must exchange their claims, defense statements and relevant documents in advance. If there is a factual dispute at the hearing, both parties may question the witness of opposite party in detail. Therefore, as for the arbitration conducted in Hong Kong, both parties often entrust a lawyer as their representative. In international arbitration, a party may directly entrust a Hong Kong barrister as a representative to handle and attend the arbitration.

Thirdly, there are several arbitration agencies in Hong Kong, including the Hong Kong International Arbitration Center and the Hong Kong Arbitration Center of China International Trade Arbitration Commission. They have different rules of arbitration, service facilities and fees. In other words, there are different options for conducting arbitration in Hong Kong too.

Fourthly, since the arbitration award is generally the final verdict, it can not be appealed under normal circumstances; on the other hand, for an unsuccessful lawsuit, an appeal can be instituted. Therefore, arbitration can save more time and solve disputes more economically. Whether arbitration can effectively resolve disputes depends on whether the arbitration award in Hong Kong can be effectively enforced elsewhere. Pursuant to the "Arrangements for Mutual Enforcement of Arbitral Awards between the Mainland and Hong Kong Special Administrative Region" that was concluded in June 1999, the Mainland People's Courts should enforce the arbitrations made in Hong Kong Special Administrative Region according to the Arbitration Ordinance. Mainland court refers to the people's court at the location where the respondent resides or where the property is. In addition, under the New York Convention, arbitration awards made in Hong Kong may also be enforced in more than 140 jurisdictions.

 

6. Conclusion

 

All the dispute resolution agreement requires the consent of the disputing parties. Disputing party may agree to settle the dispute via mediation or arbitration only after the dispute has arisen. However, as disputes have already occurred, it is actually difficult to reach an agreement on each other. Therefore, it is very important to consider adding the terms of mediation and arbitration when signing a contract. The relevant terms should specify that in the event of any dispute, the parties should go ahead of the rest to conduct a mediation and, if the mediation fails, resort to arbitration; and the relevant mediation and arbitration must be conducted in Hong Kong. Both parties should also regulate the details of the relevant mediation and arbitration, such as, the time limit for mediation or arbitration, the applicable law, the applicable mediation or arbitration agencies and rules, the number of mediators or arbitrators and how they should be chosen and how the costs should be borne.