Chinese ADR
FEN HE
Introduction
• Mr. Chief Justice Warren Burger 1982
• « alternative dispute resolution »
• → mediation
• Chinese ADR: important factor in the
development of economic ties.
Mediation
• 1980s – legal system and mediation develop
jointly
• 1990s – use of mediation and other ADR
declines
• End 1990s – initiation reform mediation
system
LITIGATION
ARBITRATION
MEDIATION
NEGOTIATION
Negotiation
• Parties reach an agreement without the
intervention of third neutral parties
• + efficiency : all parties satisfied with result
• + confidentiality
• + maintain a working relationship
Mediation
• Traditional way of solving civil disputes
• 1954 – Provisional General Rules for the
Organisation of People’s Mediation
Committee
• 1987 – 950,000 mediation committees
–6,000,000 mediators
–→ largest dispute resolution program
in the world
Mediation
• Neutral third party assists the parties in
identifying the best approach for satisfying the
needs of every party.
• « parties are usually naive,
• outsiders are usually informed »
• Cooperation of the parties to the dispute is
essential.
Non-Judicial Mediation
• 1989 – Organic Rules for People’s Mediation
Committees
– Med. Comm. have settled cases of divorce,
inheritance, parental and child support, alimony,
debts, property, ...
– Over 7,000,000 disputes are settled yearly.
– Important role in preventing crime, reducing
litigation, enhancing unity and promoting social
stablility.
Mediation during Arbitration
• 1995 – Arbitration law allows for mediation
~ Initiative of arbitrator
~ Parties’ initiative
« Joint mediation »
Mediation during Litigation
• Civil Procedure Law of China
• → simplified in-court mediation proceedings
• → beneficial for a) the parties and b) the
government
Arbitration
• Economic necessity + Confucianism = Arbitration
•
Conditions in Arbitration Agreement:
• * express intent
• * define scope of arbitration
• * choice of arbitration commission
• Arbitration Award is final
– Exception: labour disputes
Domestic Arbitration
•
•
•
•
•
1995 – Arbitration Law
- unification
- independence
- enlarged scope
- impartial arbitrators
– → meets international standards
International Arbitration
• Almost exclusively handled by CIETAC / CMAC
• CIETAC arbitration rules
–
–
–
–
–
1. scope extended
2. foreign arbitrators
3. foreign languages
4. foreign attorneys
5. nine months period for hearings and rendering
award
– 6. final and binding arbitral award
– 7. « fast track » arbitration
Transformation of ADR in China
after 1980
• Post-Mao:
– - mediation declines
– - increase of litigation cases
Why?
* market economy
* change in social structure
* rule of law
* increased knowledge of the law
Mediation in China today
Pluralist modes of dispute resolution
Transformation and Modernization of ADR system:
1. Unofficial ADR
2. Specific ADR
3. Trade ADR
4. Administrative ADR
5. Administrative review
• To conclude:
• ADR bridges the gap between the societal
needs and the law.
• → 2 tropisms:
• * offering new methods of dispute resolution to the
parties other than litigation
• * integrating ADR within the court system
Descargar

Chinese ADR