Arb-med: ideal solution or dangerous heresy? | White & Case LLP International Law Firm, Global Law Practice
Arb-med: ideal solution or dangerous heresy?

Arb-med: ideal solution or dangerous heresy?

In 2011, the arbitration community in Asia was gripped by a fascinating case in which the central question is whether the use of arb-med is incompatible with a fair procedure in arbitration.

The case is Gao Hai Yan & Another v Keeneye Holdings Ltd & Others [2011] HKEC 514 and [2011] HKEC 1626 ("Keeneye"). In this case, the Hong Kong Court of First Instance refused enforcement of an arbitral award made in mainland China on public policy grounds. Specifically, the court held that the conduct of the arbitrators turned mediators in the case would "cause a fair-minded observer to apprehend a real risk of bias". The court decision was swiftly followed by a large number of articles and notes for clients quick to point out the "risks", "dangers" and "pitfalls" of arb-med. However, disappointingly for those predicting the demise of arb-med, it was then followed by a Hong Kong Court of Appeal decision which overturned the first instance decision and allowed enforcement of the award.

This article considers the decisions in the Keeneye case, both at first instance and on appeal, discusses the wider background to the use of arb-med (and those who object to its use) and makes suggestions for as to some common principles which could be observed by parties and arbitrators entering into such a process.

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