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Source: Hong Kong Information Services

Secretary for Justice Teresa Cheng

The opening of the Hong Kong Legal Hub epitomises the efforts the Hong Kong Government has put in to provide the hardware for the promotion of Hong Kong as a legal, dealmaking and dispute resolution centre.

The software is the people, and by launching the Vision 2030 for Rule of Law, we aim to promote the rule of law, fair and inclusive societies, access to justice and furthering the Department of Justice’s mission of rule of law and justice for all.

The Inaugural Rule of Law Congress addresses two matters: legal aid and judicial capacity building. Prof Albert Jan van den Berg asks the pertinent question: What is legal aid? His experience and that of Robert Pe and Olufunke Adekoya reveals that it can take various forms from the provision of public funding, provision of services by government legal aid lawyers, pro-bono services, and provision of fees for third party neutrals in alternative dispute resolution. All these are only effective, as Hans van Loon pointed out, if legal aid is available for cross-border matters, and the importance of revisiting the International Access to Justice Convention is pertinent, thereby leaving no one behind. Much to be considered and do in this area.

In the session of judicial capacity building, ICJ (International Court of Justice) Vice-President Judge Xue stated that even if a case has political implications, the ICJ addresses only the legal aspect. The same approach is shared by Justice Hartmann from his experience in Hong Kong. He also shared with us the judicial methods he had used in discharging judicial duties. Judge Xue shared the challenges and measures taken by the ICJ to ensure justice is still being administered during the pandemic. Prof Nico Schrijver explained the situation in the Netherlands in light of the epidemic, and in particular brought out the importance of still observing the rule of law whilst introducing measures to counter the pandemic. Lessons learnt from this session should really be shared with more jurisdictions in our judicial capacity building work. This gives us a lot of ideas on the UNCITRAL (United Nations Commission on International Trade Law) Judicial Summit that will be held in the Hong Kong Legal Week 2021.

Access to justice

Efficient and effective dispute settlement processes are essential to access to justice. The 14th Annual Generations in Arbitration Conference bears the signature of international commercial arbitration: inclusiveness and diversity in gender, and legal culture, as the speakers opined, striving for absolute uniformity among different legal systems is not the goal as arbitration is beautiful for its diversity and flexibility.

The Case Settlement Conference (CSC) Pilot Scheme at the District Court of the Judiciary will be launched in January 2021. The CSC Pilot Scheme introduces the concept of assisted settlement in the case management process. At the case settlement conference, which will be part of the litigation proceedings, the CSC masters will attempt to narrow down issues in disputes and will review the ongoing processes of without prejudice negotiations that may be taking place. We believe that the case settlement conference will provide a useful platform for litigants to communicate constructively with a view to achieving amicable settlement.

This year, we have garnered a wealth of insights and observations from experts in the Sports Dispute Resolution Conference. Arbitration and mediation have their own distinctive features and may suit different kinds of sports disputes. They can complement with each other in a hybrid or multi-tiered form of dispute resolution process. A specially devised sports disputes settlement scheme at local and national level that complements what the Court of Arbitration for Sport has been offering will be very useful for Hong Kong’s sports sector. The Department of Justice is looking at how to take this forward.

The annual Hong Kong Mediation Lecture sponsored by Herbert Smith Freehills invited Mark Appel, the Chair of the International Mediation Institute Investor-State Mediation Task Force, as the speaker. Mr Appel shared with us how investor-state mediation was underused before, and that now we are at the tipping point. It is popularised as more states are aware of the benefits of investment mediation; there are more ISDS (investor-state dispute settlement) mediation rules available; and there is an upsurge of investor-state mediator trainings. I am glad to say that the Department of Justice and the Asian Academy of International Law are riding on this trend, and have been co-organising with International Centre for Settlement of Investment Disputes the investment law and investor-state mediator training since 2018. May I add one more tipping point for investor-state mediation – investment mediation clause. This has been incorporated in the Mainland & Hong Kong Closer Economic Partnership Arrangement Investment Agreement between the Mainland China and the Hong Kong Special Administrative Region. Next Monday, at the UNCITRAL Working Group III Pre-intersessional meeting, the use of mediation in ISDS would be further explored.

Secretary for Justice Teresa Cheng gave these remarks at the Closing Session of Hong Kong Legal Week 2020 on November 6.

MIL OSI Asia Pacific News