One of the first events of Hong Kong’s inaugural Maritime Industry Week was an Asia Maritime Breakfast Briefing at the Foreign Correspondents Club on Monday 21 November. With the theme, Litigation, Arbitration, Mediation: Different Paths to Dispute Resolution, the event brought together a panel of legal experts to inform and entertain close to 50 delegates.
Before opening up the session to the panel Asia Maritime team were delighted to introduce the deputy secretary of the Transport and Housing Bureau (Transport) Ms Joey Lam, the driving force behind HKMIW. Ms Lam explained the ambition behind HKMIW and commended the organisers of the 30 or more events that were taking place across the territory. Finally, she expressed the wish that holding HKMIW would bring the Hong Kong’s maritime community closer and make it stronger than ever.
Leading the panel proceedings, Andrew Rigden Green, a partner at Stephenson Harwood, put the case for Litigation.
Catherine Smith, an associate solicitor at Holman Fenwick Willan defended Arbitration, while Mary Thomson, a barrister at Pacific Chambers illustrated the benefits of Mediation.
In a determined but friendly debate the virtues of court proceedings before judges of great experience where a case may start at the Court of First Instance and be pursued through the Court of Appeal to the Court of Final Appeal, were contrasted with the less formal and more flexible approach of an arbitration willingly entered into by all parties joined in the dispute. Mediation, or the third way, was shown to share with Arbitration the advantage of offering confidentiality.
Most inexperienced claimants might assume that Litigation with its recourse to the courts and the employment of solicitors and barristers might prove to be the most costly option. Mr Rigden Green begged to differ and Ms Smith conceded that this may not always be the case after tribunal fees, venue hire and administrative costs are paid in the case of an arbitration. Both forms of dispute resolution do share the advantage of being enforceable across multiple jurisdictions.
Ms Thomson persuasively argued that Mediation was an ideal form of dispute resolution where the parties clearly had an interest in pursuing a mutually rewarding business relationship post –proceedings. She highlighted the voluntary, private and confidential nature of proceedings that are assisted by an independent, neutral third person. Where the focus is on needs and interests rather than rights there was a greater chance of an amicable resolution.
A further advantage gained from entering into arbitration is the ability it gives the parties to appoint arbitrators with relevant technical or scientific expertise when dealing with a technical dispute.
But all three forms of dispute resolution may have their down points. And the managing director of the Hong Kong Shipowners Association, Arthur Bowring was on hand to tease these disadvantages out of the speakers.
The drawbacks were most succinctly elaborated by Ms Thomson who highlighted the very public nature of court proceedings, together with the time, cost and emotion consumed in pursuing such a course with no certainty of outcome.
She added that Arbitration shared with litigation the uncertainty of outcome and the high cost financially as well as emotionally. But she did admit that there were shipping cases where mediation would be unsuitable. These included precedent or a decision on a point of law was needed. Where fraud or criminal behaviour was involved. Where mediation was used fore unethical purposes or where coercion was brought to bear.
Clearly no individual form of dispute resolution is a universal panacea. Rather disputants should wherever possible seek to resolve their disputes on the platform that can present the best overall outcome for each.
Below are the sponsors and supporting organizations without which this thoroughly enjoyable and informative Briefing would not have been possible. We offer sincere thanks to all of them.