Interference remains an issue in China mediation

Huiling was quoted by the Xinhua news agency as saying: “The courts at all levels should guide mediation and arbitration methods in a scientific, fair and rational way as well as act as supervisors and executors of agreements”.

It is generally agreed among international arbitration and mediation practitioners and jurists that courts should not interfere with international proceedings or awards in arbitration or other alternative systems of dispute resolution. In Arbitration and mediation in international business (published in 2006 by Kluwer Law International), the authors describe certain “fairly liberal arbitration laws” which respect “the autonomy of the arbitral process from court intervention and supervision” and provide, among other things, for “fewer mandatory procedural rules and less court interference with arbitration proceedings”.

One Hong Kong-based dispute resolution specialist said that in England and Hong Kong, and most developed civil law jurisdictions, the courts will give “the utmost respect to arbitration”. The caution of Godfrey JA in The Owners of the Ship or Vessel “Lady Muriel” v. Transorient Shipping Limited (30/03/1995, CACV000087/1995), an often-cited Hong Kong Court of Appeal judgment, illustrates this philosophy well, and a comment by Bokhary JA sums it up neatly: “The courts must be careful not to usurp the function of arbitrators through excessive zeal in attempting to assist them.”

Aglionby says the PRC approach to ADR is “more evaluative” than under some other systems.

The PRC has been encouraging mediation for some time through education of domestic parties and making sure that international specialists are included on mediation panels. For example, the Interpretation on Several Issues Concerning the Application of the «PRC Arbitration Law» (关于适用《中华人民共和国仲裁法》若干问题的解释), promulgated by the SPC on August 23 2006, hints that lower courts should encourage alternative dispute resolution (ADR), although the language used is more passive:

Article 28: If a party petitions against the enforcement of an arbitration mediation agreement or of an arbitration award rendered on the basis of a settlement agreement between the parties, the people's court shall reject such petition.

The new court opinions appear to show support for mediation at the highest levels, said Aglionby.

Another popular means of ADR in China is conciliation. Although similar to mediation, Aglionby pointed out that conciliation takes a different approach from the broader, interest-based approach taken in some foreign systems, being more focused on the rights and liabilities of the parties involved. Court control is more apparent in Chinese conciliation.

“PRC conciliation is also different in that it is often conducted by courts or arbitrators, involving those who have ultimate decision-making powers regarding disputes considerably more than in ADR in other parts of the world,” he said.

“There are also a number of bodies that will appoint mediators and conciliators outside the court and arbitration processes,” he said, “particularly CCPIT, which has a panel of mediators.”

CCPIT is the China Council for the Promotion of International Trade, a body established in 1952 to promote the development of economic and trade relations between China and the rest of the world.