'[I]t is an extraordinary proposition that a member of the Tribunal, in the course of hearing an arbitration, could be involved in a mediation process.' (per Saunders J in Gao Haiyan and anor v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited) 'The problems inherent in med-arb are such that many arbitrators decline to engage in it. They view the risk of apparent bias arising from their participation in med-arb as an insurmountable difficulty.' (per Reyes J in Gao Haiyan and anor v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited)
'With respect, although one might share the learned Judge's unease about the way in which the mediation was conducted because mediation is normally conducted differently in Hong Kong, whether that would give rise to an apprehension of bias, may depend also on an understanding of how mediation is normally conducted in the place where it was conducted.' (per Tang VP in Gao Haiyan and anor v. Keeneye Holdings Limited and New Purple Golden Resources Development Limited)
The remarkable spectrum of views held by judges of the Hong Kong courts (see above) in relation to the concept of 'arb-med' sets the stage for the ventilating of a number of interesting and complex issues concerning the scope of the public policy exception in the enforcement of foreign arbitral awards in Hong Kong. This article examines the analyses adopted by the Hong Kong Court of Appeal in granting enforcement of a Mainland China arbitral award which was alleged to have been tainted by apparent bias by reason of an 'arb-med' procedure. This article also examines in greater details some of the implications arising from this decision.
Journal of International Arbitration