Abstract
Given the intricate nature of contemporary international disputes, there is a growing necessity for an advanced approach to resolving each contract or dispute. The criticism directed at international arbitration, combined with the recent surge in alternative dispute resolution methods, has led to a notable increase in the implementation of multi-tier dispute resolution (MDR). Courts across numerous jurisdictions have traditionally hesitated to enforce clauses pertaining to multi-tier dispute resolution. However, in recent years, notable courts have demonstrated a readiness to enforce these clauses in several well-publicized cases. 1 On the other hand, some international legislative movements provide uniform law of international arbitration, a fundamental set of principles and standards that are widely respected and incorporated into national legal systems. 2 The book, Multi-Tier Approaches to the Resolution of International Disputes: A Global and Comparative Study, edited by Anselmo Reyes and Weixia Gu, is especially timely given the current spotlight on MDR. The insightful practical experiences and theoretical thoughts provided by a team of eighteen experts, including experienced judges, distinguished scholars, and practitioners in international arbitration, are worthy of readers’ expectations.
At the beginning of the book, the editors pose a question: “Except in China and some Asian jurisdictions, MDR is not resorted to around the world and MDR clauses in commercial contracts remain relatively uncommon; why is that?” To answer this, the book is divided into four parts. Part I provides a good overview of regulatory frameworks for MDR in two chapters. This book defines MDR as “a hybrid form of dispute resolution that combines an initial non-adjudicative approach with a subsequent adjudicative approach in the event that the initial non-adjudicative process is unsuccessful in resolving all or part of the parties’ differences.” 3 MDR issues have been regulated differently in different jurisdictions without a standardized global framework. Of course, judicial decisions play a major role in common law jurisdictions, while legislation plays a central role in civil law jurisdictions. But that is not the only variable that matters. Chapter 2 summarizes some key findings regarding the regulation of the same neutral hybrid processes from examining national arbitration and mediation laws of 195 jurisdictions. 4 The book finds that how MDR is developed may depend on many factors, including a jurisdiction's legal system, its traditions, and its multi-faceted and variegated cultural aspects. It might be a challenge to some scholars who attribute the success of MDR to an “Eastern” culture of collectivism and harmony.
Part II and Part III offer a comparative analysis of MDR trends in Asia and the wider world. These two parts, comprising 15 chapters, not only provide detailed and perspicacious analyses of MDR in 11 jurisdictions but also introduce the Hong Kong International Arbitration Centre and the Hong Kong Equal Opportunities Commission. Furthermore, there is an exploration of MDR in these jurisdictions, providing insights into the regulatory framework governing it, the current status of this system, the factors influencing its development or lack thereof, and the potential pathways toward its future. The strengths and weaknesses of MDR can be identified from the discussions of contributors. In a nutshell, MDR is appealing for several reasons. Compared to other dispute resolution methods, such as arbitration, MDR, first, will almost certainly cost significantly less and take less time; second, can also increase the chances of parties preserving their business relationships. However, every dispute resolution has its roses and thorns. What makes MDR controversial is, first, the enforceability of MDR clauses; second, the potential for breaches of confidentiality and conflicts of interest; and third, the enforcement of mediated settlement agreements resulting from MDR.
Part IV, which is also the final chapter of this book, focuses on matters where the same person acts as mediator and arbitrator in a dispute (med-arb) 5 and tries to find a way to make MDR work. The problems of med-arb are tackled on three fronts: first, how to ensure the enforceability of med-arb clauses; second, whether med-arb can be conducted in a way that circumvents or at least minimizes its associated risks; and third, how to facilitate enforcement of the outcomes of med-arb. 6 The contributor devoted to “exploring the total of those minimum features that would constitute the minimalist approach” 7 to balance between formality and informality.
The book is an extremely valuable compendium of insightful explanations and useful resources for understanding MDR.
Firstly, the book supports its main argument with a wealth of research. Not only do the contributors provide comprehensive reviews and insightful thoughts into the legal framework and practice of MDR in each of the jurisdictions studied, as previously noted, but these chapters in turn support some of the book's core ideas. For example, while the first part emphasizes that the development of MDR depends on multiple factors, we can find evidence for this in the following chapters. For instance, China 8 and Japan, 9 while both having a long history of conciliation and mediation, demonstrate divergent approaches to the advancement of MDR. The success of the former is also attributed to its market-based approach to regulating med-arb, institutional design, and culture. Koreans, like the Chinese, who are influenced by Confucian culture, “prefer a more winner-takes-all attitude.” 10
Secondly, the book is thoughtfully crafted to address both practical and theoretical inquiries concerning MDR. Each chapter is structured wherein contributors utilize data and case studies to depict the evolution of MDR within their respective jurisdictions. Furthermore, the underlying reasons and prospective trends associated with this evolution are given to help the audience to learn holistically. Having said that, the book does not shy away from the most problematic issue in multi-tier dispute resolution modes, that is, the situation where the same neutral acts as mediator and arbitrator in a dispute. These attractive proposals provided by the book may then be generalized to apply to all forms of multi-tier dispute resolution. 11 While there is not a direct reply to the questions raised at the beginning of the book, the answer can be found in the explanations given by every chapter and the comparative perspectives of analysis constructed throughout the book. As the quote from Victor Hugo in Justin Monsenepwo's chapter states, “All human wisdom holds in these two words: conciliation and reconciliation; conciliation of ideas, reconciliation of men.” 12 These excellent experts also make their conciliation of ideas relating to multi-tier dispute resolution in the discussion of the book.
Finally, there are various ways of resolving disputes depending on the nature of the dispute, the stage it is in, and the inclination of the parties toward the resolution of the dispute. Some stages of disputes are more amenable to amicable dispute resolution methods like negotiation, mediation, and conciliation, while more advanced disputes may require arbitration. As is well said by Frank Sander and Stephen Goldberg, “fitting the forum to the fuss” 13 is necessary. While the drawbacks of MDR are controversial, a trend toward greater use of it (observed by most contributors to this book) cannot be ignored. It is also pointed out in the book that “in the post COVID-19 era when financial resources will be tight due to the global recession, commercial parties will be anxious to have in place a cost- and time-efficient means of resolving their differences, to enable them to safeguard cash flow and get on with business.” 14 Furthermore, with the development of the United Nations Convention on International Settlement Agreements Resulting from Mediation, MDR seems to have potential for the future. The book reviewed, as Franco Ferrari remarked, 15 “multi-tiered dispute resolution clauses are the new norm: and this is the one book you have to turn to if you want to understand them, and this irrespective of where you practice,” should find its way to the bookshelves of practitioners and academics interested in the theory and practice of dispute resolution as a reference and introduction.