The Role of the Third Party Neutral When Arbitration and Conciliation Procedures are Combined - Chapter 19 - Asian Leading Arbitrators' Guide to International Arbitration
Sally Harpole is a solicitor, attorney (California), Chartered Arbitrator and Accredited Mediator. She is fluent in Mandarin Chinese language and over the past 30 years, has advised multinational clients on trade, investment and dispute resolution matters in China. She frequently serves as arbitrator for cases administered by CIETAC, HKIAC and other arbitral institutions. Currently the co-chair of the Arbitration Committee of the International Bar Association (IBA), Ms. Harpole served two elected terms as President of the American Chamber of Commerce in the People’s Republic of China.
Originally from Asian Leading Arbitrators' Guide to International Arbitration
To supplement Dr. Wang Wenying’s excellent chapter concerning the role of conciliation in dispute resolution in the People’s Republic of China, the following is a survey of approaches taken in various other Asian jurisdictions where the well-established Chinese practice of combining arbitration with conciliation may be adopted.
As Dr. Wang has explained, arbitration and conciliation may be combined in a number of ways under Chinese law, whether a case begins with the use of conciliation procedures or whether it begins as an arbitration case.
One of the notable approaches in China is to permit one and the same individual to continue to serve as both arbitrator and conciliator (or “mediator”, as the term is used interchangeably in China), where the resolution of a case transitions from one procedural method to the other.
Under this approach, the transition from arbitration to conciliation, and if the conciliation fails, back to arbitration, may take place without requiring the appointment of a new third party neutral (conciliator or arbitrator, as the case may be) unless the parties so request upon their own initiative.
The distinctive approach of the Chinese legislation and procedural rules that support this approach highlight the high degree of fluidity by which such procedural transitions from arbitration to conciliation and back to arbitration may take place without the need to carry out procedures to appoint a new third party neutral to assist with the dispute resolution process.