One aspect of globalization is increased trade across borders. Commercial entities and lawyers interested in the inter-pacific will be well aware that arbitration provides a useful alternative to litigation when disputes arise in this commercial environment. Dispute resolution has the commercially valuable characteristics of being private, bringing a neutral party to the table, and in the case of arbitration, allowing near global enforceability of arbitral awards.

Dispute Resolution – What’s on offer?
When a dispute arises, a court battle can be a costly and prolonged affair, with potential problems, in the case of international disputes, regarding enforceability in other jurisdictions. A court proceeding can aggravate tensions between parties when it might be preferable for them to solve the dispute in a way that would allow them to continue their existing commercial relationship.

There are several dispute resolution processes: negotiation, mediation, conciliation, expert determination, adjudication and arbitration and they can be applied singly or in combination to address disputes outside of courts. Negotiation can solve many disputes: it is the process by which disputing parties enter into a dialogue to resolve their dispute without the assistance of a third party. The terms conciliation and mediation are often used interchangeably and constitute processes facilitated by a third party neutral through a series of meetings through which the parties can agree on a resolution. The third party seeks to develop a neutral platform from which the parties can reach their own agreement. On the other hand when a fast solution is needed, expert determination is often the quickest and most inexpensive way of resolving disputes (particular where the facts are agreed). Expert determination is appropriate for technical or valuation issues. For instance, an IT specialist may be appointed in an IT supply and installation contract to determine compliance with specifications. Whereas adjudication is a generic term for a form of alternative dispute resolution in which a decision, binding at least in the short term, is made by an expert appointed by the parties. Adjudication has come to mean a more specific form of statutory dispute resolution, beginning with the Housing Grants, Construction and Regeneration Act 1996 (England and Wales), which created a default scheme of adjudication to be incorporated into most construction contracts.

Arbitration is a procedure where a neutral third party makes a decision on the dispute that is legally binding. It can be held according to established rules and procedures in one of a many arbitration organizations around the world. Arbitrations can also be arranged on an ad-hoc basis.

Legal tools for commercial disputes
International trade in the inter-pacific region is increasing with globalization. As noted above, there is heavy investment into China and India. International businesses and corporations can benefit from alternative dispute resolution mechanisms, not only as a last resort in an unforeseen situation, but as a tool preempting potential disputes. Proper risk management before commencing and during a commercial relationship can take into account the various types of dispute resolution mechanisms and develop the optimal stratagem for addressing actual or potential disputes.

Dispute resolution in a globalizing economy
Alternative dispute resolution mechanisms can be used at an international, regional or local level. As globalization increases, these distinctions become less clear-cut and more complex. Dispute resolution mechanisms respond well to globalization, offering flexible procedures and tailor-made solutions to individual business problems. The near global enforceability of arbitration awards is a merit not found in litigation and, as noted above, remains the preferred procedure for cross-border disputes. These procedures promise to become an increasingly tangible resource for commercial entities, especially in areas like the inter-pacific that experience high levels of international trade.

Global Alternative Dispute Resolution Trends
The field of arbitration and dispute resolution has seen a constant rise in popularity over the past decade, and is a field that is constantly changing. To recognize these trends will better prepare practitioners and businesses to meet commercial needs.

Meeting Expectations from the Past
A study conducted by the The Global Center for Dispute Resolution predicted several trends for the next 5 years in 2004. It expected several positive trends including: a broader need of expertise or training for counsels coming from various sorts of background, and a tribunal composed of multiple arbitrators.

Halfway through this 5 year prediction, I am glad to see ADR living up to the expectations of global needs, and becoming a well-respected alternative to resolving disputes.

Current Progress of ADR
In a recent study conducted in the First Quarter of 2007 by The Institute for Conflict Prevention & Resolution, ADR has shown great promise and effectiveness. The study surveyed 126 US Attorneys working in-house and at law firms on their thoughts about ADR.

Mediation is by far the most preferred form of ADR over the past 3 years and has been gaining popularity as a result of its informal manner and its ability to maintain amicable relationships. Finality and Confidentiality proved to be the top two benefits of using Arbitration, and provides a much more appealing alternative to litigation when issues need to be resolved quickly and privately.

The study also showed that the key factors for one to use ADR were cost savings and speed. These are the two greatest advantages ADR has to offer, and there should be a conscientious effort put into maintaining and even improving this.

Future in Online Dispute Resolution
In the modern world as we know today, the internet has become too powerful of a technological necessity to ignore. Searching for new ways to promote and improve ADR, the internet has proved to be a valuable tool. ODR essentially eliminates the need to travel in international cases, and allows for much speedier processing. Although ODR is still in its infant stage, the potential it possesses is immense. ODR is capable of handling anything from mediation to arbitration, but like many new trends, the field has remained reluctant to adopt this new form of dispute resolution. Given time to perfect the technology, ODR will maximize flexibility and convenience for parties, making ADR methods more accessible.

The IPBA Dispute Resolution and Arbitration Committee – fostering an active forum

Dynamic leadership
The strong leadership from previous Chairs and Vice-Chairs has ensured this committee’s active role in IPBA and has set a high standard for those that follow in their steps. The Committee has developed a continuing dynamic tradition of fostering debate in the IPBA annual conferences. Indeed, the theme for several annual conferences has been sourced in the field of arbitration and dispute resolution law. Our previous chairpersons have displayed an enthusiasm matched by our members, and indeed, IPBA members have played a key role in responding to and initiating collaborations. The excellent leadership and innovation shown by past Chairs and Vice-Chairs is a source of inspiration for the current committee.

The 2007 IPBA Conference
Last year’s conference was a direct reflection of the attention and reputation ADR has gained over the last several years. The conference in Beijing concluded a successful array of ADR topics that focused on the economy of Asia and its litigation system. There were many questions left unanswered, so in this year’s conference, we will continue to dedicate several programs to Asia.

The 2008 IPBA Conference – Up and Coming
The upcoming 2008 annual IPBA conference will take place in Los Angeles at the end of April 2008. The programme has been carefully designed to present the most recent trends and issues affecting ADR.

There will be two stand alone programs conducted by the Dispute Resolution and Arbitration committee. The programme highlights include the following: “Commercial Arbitration in Asia Today: Are the Courts Hands On or Hands Off?” and “Representing Asian Clients in High Stakes U.S. Jury Trials.

There will also be three joint programs. “Getting Out of Trouble in China: Developing Effective Legal Solutions to Disputes [Part 2]” with the Insurance Committee. “Investment Arbitration Under Bilateral Investment Treaties: Lessons Learned from the Latin American Experience” with the Cross-Border Investment and International Trade committee. And finally, “Expediting the Dispute Resolution Process in Major Construction Projects” with the International Construction Projects committee.

The Current Committee – Continuing the Commitment
The IPBA Dispute Resolution and Arbitration Committee allows diverse individuals, be they practitioners of arbitration or dispute resolution or interested individuals from the commercial world, to expand their knowledge and interaction with this exciting field of law. This is an area of law in continual expansion and featuring fascinating developments. The current committee is fortunate to draw from an established forum debating dispute resolution and arbitration in the inter-pacific region. The Committee hopes to make a lasting contribution to this vibrant forum.

The active dialogue we seek to foster between members is not limited to the annual IPBA conferences; rather, it is of an ongoing nature. In light of this, the IPBA Dispute and Arbitration Resolution committee has a dual role:

• As an informative forum for arbitration and alternative dispute resolution developments
• As a platform for vibrant discussion on ongoing and topical issues

We promote an interactive discussion with members on topical arbitration and alternative dispute resolution issues. This ranges from the annual conference, to further programs, and arenas for interaction including the IPBA dispute resolution and arbitration online forum, and extends to any initiatives that members seek to promote. The 2008 IPBA Conference is approaching, and we welcome contributions at all stages of the preparation process. IPBA Conferences provide a unique platform for developing knowledge and bringing up current issues.

The committee does value members input and encourages members to actively participate in the committee’s on gong affairs. On this note we actively encourage comments, suggestions for programmes, and collaboration from those who would like to work with us. Please feel free to contact the Chair, Christopher To, and Vice-Chairs Sumeet Kachwaha, Hiroyuki Tezuka, Woo Young Choi, Rabindra S. Nathan, Juliet Sara Blanch. Please find their contact details below for your ease of reference.

We look forward to seeing you at the 2008 IPBA gathering at Los Angeles!

Chair

Christopher To
Hong Kong International Arbitration Center (HKIAC)
38/F, Two Exchange Square, 8 Connaught Place, Central
Hong Kong
Tel. 852-2525-2381
Fax. 852-2524-2171
E-Mail:   christopher@hkiac.org

Vice-Chairs

Sumeet Kachwaha
Kachwaha & Partners
New Delhi
Tel. 91-11-4166-1333/1444/1777
Fax. 91-11-2411-0763
E-Mail:   mail@kaplegal.com

Hiroyuki Tezuka
Nishimura & Partners
Tokyo
Tel. 81-3-5562-8577
Fax. 81-3-5561-9711
E-Mail:   h_tezuka@jurists.co.jp

Woo Young Choi
Hwang Mok Park P.C.
Seoul
Tel. 82-2-772-2704
Fax. 82-2-775-2860
E-Mail:   choiwy@hmpj.com

Rabindra S. Nathan
Shearn Delamore & Co.
Kuala Lumpur
Tel: 60-3-2070-0644/2076-2871
Fax: 60-3-2034-2763
E-Mail:   rabindra@shearndelamore.com

Juliet Sara Blanch
McDermott Will & Emery UK LLP
London
Tel: 44-20-7577-6927
E-Mail:   jblanch@europe.mwe.com