Hong Kong International Arbitration Centre
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The Hong Kong International Arbitration Centre (or HKIAC) was established in 1985 to assist disputing parties to solve their disputes by arbitration and by other means of dispute resolution. It was established by a group of the leading business and professional people in Hong Kong to be the focus for Asia of dispute resolution. It has been generously funded by the business community and by the Hong Kong Government but it is totally independent of both and it is financially self-sufficient.
Hong Kong International Arbitration Centre is a non-profit making company limited by guarantee. It operates under a Council composed of business and professional people of many different nationalities and with a wide diversity of skills and experience. Administration of HKIAC arbitration activities is conducted by the Council through the Centre's Secretary-General who is its chief executive and registrar.
The options to resolve a dispute
In Hong Kong there are a variety of ways of resolving disputes and Hong Kong International Arbitration Centre is available to assist parties to choose the best available for their particular disputes. Some of the options are described below.
The most common form of dispute resolution is negotiation. By this means alone nearly all disputes are solved. If negotiations fail, it is necessary to seek the assistance of a neutral third party or several neutral third parties to facilitate a solution.
Conciliation and Mediation
Conciliation and Mediation are often terms used interchangeably and they are together referred to as mediation. Both involve the appointment of a third party to assist disputing parties to reach a settlement of their difference. The mediator is not given any power to impose a settlement. His function is to try to break any impasse and encourage the parties to reach an amicable settlement. In commercial disputes an impasse most often arises from either a lack of trust in the integrity of the other party or a genuine good faith difference of opinion on the facts underlying the dispute or on the probable outcome of the case were it to go to court. The mediator may act as a shuttle diplomat acting as a channel for communication filtering out the emotional elements and allowing the parties to focus on the underlying objectives. He will encourage the parties to reach an agreement themselves as opposed to having it imposed upon them. Mediation has proven an outstandingly successful management tool for resolving difficult disputes and should always be considered when negotiations fail before proceeding to arbitration or litigation. It is a means by which the parties can re-learn the basis of communication with which they can then resolve future disputes. This is particularly important in family disputes where invariably there are ongoing issues to be resolved e.g. arrangements for children.
For an arbitration to take place, the disputing parties must agree to take their dispute to arbitration. In practice, this agreement is often made before the dispute arises and is included as a clause in their commercial contract. In signing a contract with an arbitration clause, the parties are agreeing that their dispute will not be heard by a court but by a private individual or a panel of several private individuals. If parties have agreed to arbitration, they will generally have to go to arbitration rather than court as the courts will normally refuse to hear their case by staying it to force the reluctant party to honour their agreement to arbitrate.
Arbitration is a legal process which results in an award being issued by the arbitrator or arbitrators. Arbitration awards are final and binding on the parties and can only be challenged in very exceptional circumstances. An award has a status very like a court judgment and is enforceable in a very similar manner. Arbitration awards made in Hong Kong are enforceable through the courts of most of the world's trading nations.