With the Hong Kong-Zhuhai-Macau Bridge opening to traffic, the exchanges among Guangdong, Hong Kong and Macau are becoming more and more frequent, the development of the Great Bay Area is changing with each passing day, and legal disputes are growing rapidly, showing a trend of diversification and complexity. In order to vigorously meet the increasing demand of the people for the resolution of disputes in a diversified way in the new era, facilitate the timely resolution of disputes and effectively protect the legitimate rights and interests of both domestic and foreign parties, the Zhuhai Hengqin Court has recently blazes a new trail in strengthening the convergence of litigation and mediation and promoting the resolution of disputes by a multi-pronged approach.
On June 14, 2019, the Hengqin Court of the one party and the Beijing Finance and Business Belt & Road Legal and Commercial Affairs Services Center and the Belt & Road International Commercial Mediation Center (hereinafter referred as the Finance and Business Mediation Center) of the other party, held a signing ceremony at the Hengqin Court. Cai Meihong, President of Hengqin Court and Wang Li, Director of the Finance and Business Mediation Center, jointly signed the Cooperation Agreement on the Establishment of a Mechanism for the Linkage of Litigation and Mediation and for the Diversified Resolution of Disputes.
The Hengqin Court has always adhered to the orientation of “justice for the people”, made great efforts to give full play to the advantages of Hengqin as a national-level new area and free trade zone in respect of the priority to take the first step and to try, conducted useful explorations in the building a mechanism for the diversified resolution of disputes settlement mechanisms, established a platform for linking litigation with mediation, created a special mediation mechanism, and worked at different times in collaboration with the Hengqin New Area Legal Services Center, the Hengqin Notary Office and the Zhuhai Arbitration Commission, thus effectively broadening the channels for dispute resolution and improving the quality and effectiveness of dispute resolution.
With the further advancement of China’s Belt & Road Initiative and the construction of the Guangdong-Hong Kong-Macau Bay Area, the Hengqin Court and the Finance and Business Mediation Center have, with the preliminary in-depth exchange and discussion, reached a consensus in carrying out the linkage of litigation and mediation and promoting the diversified resolution of disputes. The two parties have agreed to set up a cooperative mechanism for realizing a linkage of litigation and mediation in such matters as the entrustment and management of cases and deepening their collaboration in such matters as the diversified resolution of disputes.
President Cai Meihong of the Hengqin Court said that the Hengqin Court and the Finance and Business Mediation Center, adhering to the concept of building and sharing through consultation, have established a cooperative mechanism and actively constructed a diversified dispute resolution mechanism, which fully demonstrates their people-centered value pursuit of social equality and justice. We hope that we will be able to work hand in hand, coordinate with each other, give play to the respective advantages in the professional background of the sides, advance resources sharing, and do a good, in-depth and fruitful job of the linkage of litigation so as to create a stable, fair and transparent law-based business environment for the Belt & Road Initiative and the construction of the Guangdong-Hong Kong-Macau Bay Area.
Director Wang Li of the Finance and Business Mediation Center said that the Center is the first non-governmental organization in China to formulate international mediation rules in a non-governmental way. Since its establishment, the success rate of case mediation has been 70%. In the future, we will deepen our practical exploration, continue to do a good job of the linkage of litigation and mediation together with the court and, by leveraging the Oriental wisdom of ours in drawing on the contemporary international mediation experience, build a mediation system and operation platform with Chinese characteristics which will meet the needs of international commercial dispute resolution, so as to raise China's voice in international dispute resolution and enhance the country's soft power and international influence.
The smooth launching of the bilateral cooperation will help to promote the standardization and normalization of the Hengqin Court in the work to realize the linkage of litigation and mediation. It is not only a concrete measure to implement the Guidelines on the Establishment of a Mechanism and Organizations for the Resolution of Disputes Related to the Belt & Road Initiative adopted upon deliberation at the second session of the Leading Group for Deepening the Reform under the CPC Central Committee, but also a step that will further optimize the business environment in Zhuhai and better serve and guarantee the construction of the Hengqin Free Trade Zone and the Guangdong-Hong Kong-Macau Bay Area. In the next stage, the two parties will do an even better job of the basic investigation and research for the purpose of taking forward the work to construct a mechanism for the “linkage of litigation and mediation”, strive to build a mediation team with an international perspective, create a joint service platform with a mechanism for the diversified resolution of disputes, a platform that will meet the needs of the development of the Guangdong-Hong Kong-Macau Bay Area, and explore ways to improve the new mechanism for the diversified resolution of disputes.
Information about the Belt & Road International Commercial Mediation Center
The Beijing Finance and Business Belt & Road Legal and Commercial Affairs Services Center is in the charge of the Beijing Law Society. In dispute resolution, the Center has created the Belt & Road International Commercial Mediation Center. The Office of Judicialy Reform under the Supreme People’s Court accredited the Belt & Road International Commercial Mediation Center as a Sub-project Unit in the Reform of the Diversified Dispute Resolution Mechanism. The Center’s characteristics of legality, non-governmentality, internationality, online nature and openness and its model of double linkage of "online and offline, litigation and mediation" are recognized internationally and domestically. The Center's mediation service capacity covers more than 170 cities in 63 countries and the Center currently has 235 international and domestic mediators. Since its establishment, the success rate of case mediation has been 70%.
Seven major principles guarantee fairness and efficiency
According to the cooperation agreement, when commercial disputes and other disputes occur, the Hengqin Court will, according to the wishes of the parties, guide the parties to the Finance and Business Mediation Center for mediation before filing the case or during the trial and, after conciliation is achieved, the Finance and Business Mediation Center can apply to the Hengqin Court for judicial confirmation.
In order to guarantee the fairness and efficiency of mediation, the Hengqin Court and the Finance and Business Mediation Center have jointly formulated seven principles that must be followed when applying the linkage mechanism of litigation and mediation to mediation.
1. The principle of legality. Mediation must be carried out within the scope permitted by law and must not violate mandatory provisions such as laws and administrative regulations.
2. The principle of convenience for the people. It is imperative to explain the relevant provisions of litigation procedure and mediation rules to the parties accurately and in a timely manner and provide guidance and assistance for the parties.
3. The principle of voluntariness. In conducting mediation, it is imperative to fully respect the opinions of the parties concerned. If the mediation is unsuccessful, the parties may choose their own way of litigation or other modes of dispute resolution.
4. The principle of efficiency. With their differences and disputes quickly resolved through mediation, the litigation costs of the parties can be saved, which will help to promote the sound operation of social economy.
5. The principle of confidentiality. People engaged in mediation shall abide by the rules of confidentiality.
6. The principles of common practice. When applying this mechanism to mediation, we may refer to standard commercial practice and/or trade rules.
7. The principle of compliance with rules. When applying this mechanism to mediation, the mediator act in accordance with the Mediation Rules of the International Commercial Mediation Center.
The parties concerned may choose the time limit and the applicable rules.
In order to ensure that the mediation does not delay the time of litigation settlement, the Hengqin Court and the Finance and Business Mediation Center have set the time limit of mediation based on two specific situations:
一是横琴法院在立案前委派融商调解中心调解的商事纠纷，调解期限一般为 30 日，从诉讼当事人同意调解之日起算。确有调解可能的，调解期限可延长至 60 日。各方当事人同意延长调解期限的，不受此限。
Firstly, for a business dispute which the Hengqin Court entrusts, before filing the case, the Finance and Business Mediation Center with the mediation thereof, the time limit will generally be 30 days as of the date on which the litigants agree to settlement through mediation. If there is a possibility of conciliation, the time limit may be extended to 60 days. If the parties agree to extend the time limit for mediation, this limit shall not apply.
二是横琴法院在立案后委托融商调解中心调解的案件，适用法院普通程序的，调解期限为 15日；适用法院简易程序的，调解期限为 7 日。调解期限从诉讼当事人同意调解之日起算。各方当事人同意延长调解期限的，不受此限。
Secondly, for a law case which the Hengqin Court entrusts, after filing the case, the Finance and Business Mediation Center with the mediation thereof, if the ordinary procedure of the Court is applicable, the time limit shall be 15 days and, if the summary procedure of the Court is applicable, the time lime shall be 7 days. The time limit for mediation shall start from the date on which the litigants agree to settlement by mediation. If the parties agree to extend the time limit for mediation, this limit shall not apply.
It thus can be seen that not only is the mediation period clearly limited, but also the parties themselves have great autonomy over the period.
In addition, as far as the applicable rules are concerned, foreign laws, laws of Hong Kong, Macau and Taiwan, international conventions, international common practice and general mediation rules may be applied to the mediation of foreign-related, or Hong Kong-related, Macau-related or Taiwan-related commercial disputes according to the wishes of the parties concerned. This fully reflects the principle of parties’ autonomy and respects the wishes of the parties.