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Cross-border and international mediation services

Content

  1. Introduction of Hong Kong International Mediation Centre (HKIMC) 
  2. Scope of Services
  3. Model Dispute Resolution Clause & Mediation Clause
  4. Application Method
  5. Fee
  6. Mediation Rules

Introduction

The Cross-border and International Dispute Resolution Mechanism is a brand-new service that combines the advantages of mediation and arbitration to resolve cross-border disputes. When commercial disputes emerge, parties can opt to utilize this Mechanism to resolve the conflict in a non-litigation approach in Hong Kong, Mainland China, and overseas.

Under this Mechanism, if parties are able to achieve settlement through mediation, the relevant arbitration institution will issue an arbitral award with reference to the mutually signed Mediated Settlement Agreement. Otherwise, if the settlement through mediation is futile, parties can continue dispute resolution through arbitration, where an arbitral award will be issued by the arbitration institution.

International Accredited Professional Mediators of IDRRMI would be providing professional service in the  “Cross-border and International Dispute Resolution Dispute Resolution" mechanism. Arbitrators will be individually appointed by relevant arbitration institutions. Different experts will be appointed to be mediators or arbitrators in each case, safeguarding the fairness and equality of this Service.

International enterprises with businesses or investment in Hong Kong, Mainland and overseas can be benefited from this Service. When disputes emerge, the “Cross-border and International Dispute Resolution Dispute Resolution” mechanism will facilitate parties in reaching effective and feasible resolution options. The Mediated Settlement Agreement signed by parties under this mechanism will then be further secured with the conferment to an arbitral award, which enforcible in more than 150 national. The “Cross-border and International Dispute Resolution Dispute Resolution” mechanism demonstrates significant advantages on the ease of enforcement, being unconfined to specific regions, and applicable to places under both Common Law and Civil Law. It is an alternative dispute resolution method that is rapid, money, and court-resources-saving. It is especially suitable for cases involving multiple jurisdictions, solving the problems all at the same time, and avoiding the filing of the same petition in different jurisdictions.

Hong Kong International Mediation Centre (HKIMC)

Hong Kong International Mediation Centre (HKIMC) is the mediation service provider of IDRRMI.


Scope of Services

HKIMC accepts all kinds of international and cross-border disputes involving Hong Kong, the Mainland, and different countries. It ranges from domestic and abroad disputes on equal subjects of natural persons, legal persons, or other organizations. The “International Mediation Model” will first be adopted to resolve the dispute. Afterward, an arbitral award will be issued by an international arbitration institution for the enforcement of the Mediated Settlement Agreement.


Model dispute resolution clause Mediation clause

There are three different terms to choose from

i) Mediation clause

[Dispute applied to the same region]

The Hong Kong International Mediation Centre recommends the following Mediation Clause be inserted in any contract:

“Any dispute arising from or in connection with this contract shall be submitted to Hong Kong International Mediation Centre for mediation (HKIMC), which shall be conducted in accordance with the Mediation Rules of HKIMC in effect at the time of mediation.”

ii) International dispute resolution clauses

[Applicable to cross-regional and international disputes]

1) Model dispute resolution clauses applicable to international regions (enforcement of settlement agreements and arbitral awards in different regions)

"Any dispute arising out of or in connection with this contract shall be first submitted to the International Dispute Resolution & Risk Management Institute (IDRRMI) for mediation which shall be conducted in accordance with its International Dispute Resolution Mechanism in effect at the time of application (“the Mechanism”).  Any settlement reached in the course of the mediation shall be referred to the Hong Kong Center of International Commercial Arbitration or the arbitral tribunal designated by the Mechanism and shall be made a consent award on agreed terms.  If no settlement is reached, the dispute shall be finally settled under the Rules of the Hong Kong Centre of International Commercial Arbitration or the designated arbitral tribunal, by one or more arbitrators appointed in accordance with the said Rules."

2) Model Clause for Dispute Resolution in China (Enforcement of Settlement Agreements and Arbitral Awards in China)

"Any dispute arising out of or in connection with this contract shall be first submitted to the International Dispute Resolution & Risk Management Institute (IDRRMI) for mediation which shall be conducted in accordance with its International Dispute Resolution Mechanism in effect at the time of application (“the Mechanism”).  Any settlement reached in the course of the mediation shall be referred to the People’s Court in China designated by the Mechanism and shall be made a Judicial confirmation or Mediation Agreement.  If no settlement is reached, the dispute shall be finally settled under the Rules of the Hong Kong Centre of International Commercial Arbitration or the designated arbitral tribunal, by one or more arbitrators appointed in accordance with the said Rules."


Application Method

Anyone, both or multiple-party/parties in any disputes involving Hong Kong, the Mainland, or elsewhere may submit the application to IDRRMI for mediation, regardless of a prior mediation agreement between the parties. The following documents are required when applying for mediation service at IDRRMI:

  1. The names of all parties and their respective valid contact
  2. The facts of the dispute and request for mediation
  3. Related evidence and documents
  4. Proof of identity
  5. If any party entrusts an attorney to participate in mediation, a letter of attorney and authorization shall be submitted.

Each party is required to pay the non-refundable registration fee (HK$2,000) to HKIMC, regardless of the participation of all the parties in the “Cross-Border and International Disputes Resolution" mechanism. The Secretariat of HKIMC would, on receipt of the application for mediation service, send an invitation to contact all the other parties (if required) and encourage other parties to settle the dispute with the Mechanism. Other parties shall reply in writing about their acceptance to engage in mediation within 14 days from the day of notification. The Secretariat of HKIMC will remind other parties on the timeframe for responses. If no response is received within the time limit, it will be regarded as a rejection of mediation. When involved parties agree to engage in mediation and pay the respective mediation fee, the Secretariat of HKIMC will officially commence the mediator appointment procedures and arrange verification of relevant evidence submitted by the parties. In any case, the appointed mediator is not available to perform his/her duties, another mediator would be nominated by HKIMC unless otherwise agreed by the parties. All parties should jointly appoint a mediator within 15 days from the day of receiving the notification of a mediator appointment. If there is no consensus as at the deadline, HKIMC would appoint a mediator to handle the case.

Applicants are also required to:

  • For reapplication for mediation of the same case) Re-submit the registration fee;
  • Sign documents of arbitration application;
  • Appoint or authorize IDRRMI to appoint one or more than one mediator(s) in the IDRRMI Panel of Dispute Resolution Experts
    Appoint an arbitrator from the panel of arbitrators of the recommended arbitration institutions;
  • Prepay 50% of the mediation fee enlisted on the Table of Mediation Fee; and
  • Prepay arbitration fee as requested by the arbitration institution

Fee

Table of Mediation Fee

  1. No additional rental fee will be charged if meeting room(s) is/are booked for mediation;
  2. If more than one mediator is appointed, no additional fees will be charged except for those stated in the “Professional Fees for Mediator”;
  3. In the case that the amount in dispute cannot be confirmed, IDRRMI reserves the right to adjust mediation costs.

Table of Suggested Mediator Remuneration

  1. The above table shows the fees charged by a mediator. The cost would increase according to the number of appointed mediators.
  2. If the disputed amount cannot be determined, HKIMC will determine the amount after consultation with the mediator.
  3. In addition to the mediator's personal income tax, the parties must also bear all costs incurred by the mediator during providing services.

Budget Reference

  1. Already accounted for different seniority of Mediators

Mediation Rules

Article 1 Purpose

By utilizing our experience in dispute resolution and our huge platform of professional connections, Hong Kong International Mediation Centre (HKIMC) aims to resolve cross-border and international civil and commercial disputes in a harmonious, efficient and effective manner, at a low cost.

Article 2 Scope of Services

All kinds of international and cross-border disputes involving Hong Kong and the Mainland, happening home and abroad on equal subjects of natural persons, legal persons or any organizations, can be submitted to IDRRMI. The “Hong Kong International Mediation model” will first be adopted to resolve the dispute. Afterwards, an arbitral award will be issued by an international arbitration institution so as to secure the feasibility of the Mediated Settlement Agreement.

Article 3 Application of Rules

Parties concurring with submitting the dispute to IDRRMI for mediation according to the "Cross-Border and International Disputes Resolution" mechanism, shall be deemed to agree to process the mediation in accordance with this Mediation Rules.

Article 4 The Principle of Impartiality and Fairness 

Mediation shall comply with parties’ voluntary will. Mediators shall abide by the principle of impartiality and fairness. Mediation shall be processed based on proven facts, respect the provisions of a contract, in accordance with the laws, and with reference to international practice, be conducted on the basis of impartiality, fairness and rationality. This is to facilitate parties to reach a settlement after taking into account the interests of all parties.

Article 5 Panel Mediators

The International Mediators at the IDRRMI are experienced in different types of disputes. They are in the professions of economics, trading, finance, securities, investment, intellectual property rights, technology transfer, real estate, construction contract, transportation, insurance and commercial, maritime and/or legal aspect(s), who also possess extensive practical experience in mediation.

Article 6 Application and Acceptance of Mediation 

Anyone, both or multiple-party/parties in any disputes involving Hong Kong, the Mainland, or elsewhere may submit an application to HKIMC for mediation, regardless of a prior mediation agreement between the parties. The following documents are required when applying for mediation service at HKIMC:          

1. The names of all parties and their respective valid contact;
2. The facts of the dispute and request for mediation;
3. Related evidence and documents;
4. Proof of identity; and
5. If any party entrusts an attorney to participate in mediation, a letter of attorney and authorization shall be submitted.

Each party is required to pay the non-refundable registration fee (HK$2,000) to IDRRMI, regardless of the participation of all the parties in the “Cross-Border and International Disputes Resolution" mechanism. The Secretariat of HKIMC will, on receipt of the application for mediation service, send an invitation to contact all the other parties (if required) and encourage other parties to settle the dispute by the Cross-Border Disputes Resolution Mechanism. Other parties should reply in writing about their acceptance to engage in mediation within 14 days from the day of notification. The Secretariat of IDRRMI will remind other parties that if no response is received within the time limit, the parties will be regarded as rejecting mediation. After parties agree to engage in mediation and pay the respective mediation fee, the Secretariat of IDRRMI would officially commence the mediator appointment procedures and arrange verification of relevant evidence submitted by the parties. In any case, the appointed mediator is not available to perform his duties, other mediators would be nominated by IDRRMI unless otherwise agreed by the parties. All parties should jointly appoint a mediator within 15 days from the day of receiving the notification of mediator appointment. If there is no consensus as at the deadline, IDRRMI would specify a mediator to handle the case.
Applicants are also required to:

(For reapplication for mediation of the same case) Re-submit the registration fee;
Sign documents of arbitration application;
Appoint or authorize IDRRMI to appoint one or more than one mediator(s) in the IDRRMI Panel of Dispute Resolution Experts
Appoint an arbitrator from the panel of arbitrators of the recommended arbitration institutions;
Prepay 50% of the mediation fee enlisted on the Table of Mediation Fee; and
Prepay arbitration fee as requested by the arbitration institution
Article 7 Mediation Venue

Mediations will be held in HKIMC. Where otherwise agreed or requested by the parties and approved by HKIMC, or recommended by HKIMC and agreed by all parties, mediation can be held at other venues. The venue costs thereof shall be borne by all parties.

Article 8 Appropriate Ways of Mediation

The mediator shall adopt the Hong Kong International Mediation model and communicate with parties through meetings, written or oral correspondence(s) which he/she shall think fit. The mediator can conduct mediations in manners he/she considers appropriate. If the mediator deems it necessary and agreed by the parties, professionals of the related industry can be invited to assist and participate in the mediation, which the costs shall be borne by all parties.  

Article 9 Confidentiality

Unless otherwise agreed by the parties, the process of mediation is confidential. Mediator, parties and their attorneys, the Secretariat of HKIMC and other persons involved in the mediation process shall be obliged to keep all mediation communications confidential unless otherwise stated in the laws and regulations.

Article 10 The Settlement Agreement

As the parties reach a settlement through mediation, the mediator should, according to the content of the mediation, draft a Settlement Agreement, which is then signed by the parties. Meanwhile, the mediator shall also sign on the agreement and stamp with the seal of HKIMC. In accordance with the IDRRMI Mediation Rules, after reaching a Settlement Agreement based on mutually agreed requirements, the Settlement Agreement should be submitted to an international arbitration institution. In accordance with the contents of the Settlement Agreement and processed by independent arbitration, an award will be issued by the arbitration institution to enhance the legal protection of executing the Settlement Agreement. If no agreement is reached, the dispute concerned shall subsequently be submitted to an international arbitration institution for independent arbitration and issuing award.

Article 11 Termination of MediationThe mediation proceedings shall be terminated if any of the following cases evolves:

1. A Settlement Agreement is reached between the parties;
2. Any party notifies HKIMC to terminate mediation proceedings;
3. The mediator believes that further attempts at mediation are no longer justified, and thus decides to terminate the mediation;
4. Expiry of mediation term; or
5. HKIMC considers necessary to terminate the mediation proceedings in other circumstances.
Article 12 Mediation TermThe parties can voluntarily establish a mediation term. With the consent of all parties, the mediator can also determine a mediation term. Mediation term, in any case, should not be longer than 30 days from the day of confirmation of mediator appointment, except for those cases deferred with the consent of the parties and approved by HKIMC.
Article 13 Without Prejudice

Parties are not allowed, in subsequent arbitration or litigation, to cite any statement, opinion, comment, or suggestion made by the mediator and all parties during mediation proceedings, as the basis for an appeal or a plea.

Article 14 Costs of Mediation

Costs of the mediation are charged in accordance with the Table of Mediation Fees, added by the remuneration of mediators, travel expenses, material translation fee and related administration fee. In principle, the costs are equally shared by the parties, unless otherwise stated in the Settlement Agreement. Other expenses would be borne by the parties respectively. Regardless of whether the mediation is successful, all fees paid including but not limited to the Registration fee, Administration fee, mediator’s remuneration and other incurred expenses are non-refundable.

Article 15 Explanation

HKIMC is responsible for the interpretation of these rules.

 

  1. The above Suggested Mediator Remuneration is for one mediator. If the parties in dispute agreed to appoint two or more mediators, the remuneration shall be in multiply of the number of mediators.
  2. If the amount in dispute cannot be determined, the Suggested Mediator Remuneration will be determined by IDRRMI upon negotiation with mediator.
  3. All charges incurred in the course of mediation shall be borne by parties in dispute, except for the individual income tax of the appointed mediator(s).