Why your IDR user experience is important in designing IDR reforms

May 16th, 2019

By Matthew Coghlan and Aziah Hussin

Whether we are talking about arbitration, mediation or litigation, it seems that international dispute resolution (IDR) systems are evolving rapidly. Think of the recent emergence of international commercial courts in ascendant global cities like Dubai and Singapore, the new United Nations Commission on International Trade Law (UNCITRAL) spotlight on reforming investment arbitration, the United Nation’s adoption of the Convention on International Settlement Agreements Resulting from Mediation, known as the ‘Singapore Convention on Mediation’ in December 2018, and of course, the advancement of technology to support online dispute resolution. Indeed, wherever we look, change is happening or on the horizon.

But how do we know what changes to IDR systems are necessary to improve dispute resolution? Are we only interested in improving existing system efficiency, or do we want to create new mechanism options? How do we design either of these types of changes so that they are effective? Will the improved efficiencies or new options be accepted and used by IDR stakeholders? What will the experiences of the companies and legal practitioners be if they use them?

There are many players involved in an IDR system design and practice, namely –

  • politicians and policymakers call for and set up dispute resolution mechanisms to fill gaps and meet needs in local judicial systems;
  • commercial parties come into conflict in delivering goods and services and seek dispute resolution assistance if their negotiations fail to resolve it;
  • courts and alternative dispute resolution service providers receive, manage and facilitate or decide party complaints;
  • legal practitioners represent parties and advise them on their options and strategies for resolution; and
  • courts and judicial officers might be needed to enforce orders to finalise dispute resolution.

Moreover, every country has its own legal system and culture that might feature the standard dispute resolution mechanisms of arbitration, mediation and litigation, yet these mechanisms will be influenced by each country’s distinctive norms and practices.

At the international level in the last couple of years, several prominent studies have been conducted that aimed to generate relevant new information on IDR systems. These studies have used different methodologies – for example, in the research tools that they have employed and the respondent targets they have selected to produce data. Two examples are –

The results from studies as mentioned above may then be used by policymakers and legislators to understand the strengths and weaknesses of their own and other countries’ IDR systems, and to develop and propose policy changes and legal reforms to replicate other system’s strengths and mitigate their own system’s weaknesses. This comparative and competitive process thus helps to identify and establish global benchmarks and best practices from country-level dispute resolution structures and institutions, and procedures and practices.

To this same end, the Singapore International Dispute Resolution Academy (SIDRA) has launched Singapore’s first International Dispute Resolution Survey with assistance from the Singapore Ministry of Law. The IDR Survey seeks to put together a comprehensive and robust understanding of how corporations resolve their cross-border disputes and the reasons for their dispute resolution choices. It will answer important IDR design questions such as why some corporations choose one dispute resolution mechanism over another, and whether these choices vary depending on factors such as the type of transactions, the nature of disputes, the industries or sectors involved, and the countries or regions of operation.

In comparison to the two important studies mentioned above, the new IDR Survey will differ in a number of significant ways. The survey will –

  • cover international mediation and litigation, in addition to arbitration;
  • gather responses from corporate executives and corporate counsel (namely, the dispute resolution users) and dispute legal practitioners (the dispute service providers);
  • examine actual usage rather than just preferences, which will provide clearer insights into corporation and law firm decision-making for resolution of disputes; and
  • achieve a geographical spread of companies and legal practitioners to represent users and providers of the major regions.

If you are a corporate executive, corporate counsel or dispute legal practitioner who has been involved in IDR in the past three years, SIDRA welcomes your participation in the survey. Click on the following link and send the e-mail that pops-up to participate. Participation is enouraged by the end of May.

A copy of the survey results, once they have been published, will be placed on the De Rebus website.

Matthew Coghlan BA/LLB (Hons) (Melb) MAIR (ANU) is the Deputy Director and Aziah Hussin LLB (National University of Singapore) LLM (University College London) is a Senior International Law Research Consultant at the Singapore International Dispute Resolution Academy (SIDRA) in Singapore.