Global DR Legal Update (October 2018).
Legal News & Analysis - Asia Pacific - Dispute Resolution
24 October, 2018
Welcome to this issue of the Global DR Legal Update, our quarterly newsletter which aims to bring together the most important global developments in litigation and arbitration.
- Australia: Review of class action litigation funding underway
- China: Internet courts to admit evidence verified by blockchain
- Hong Kong: Code of Practice for third-party funding of arbitration and mediation published
- Macau: Assembly passes bill modernizing region's arbitration regime
- ICSID considers major changes to rules
- UNCITRAL publishes Model Law on recognition and enforcement of insolvency-related judgments
Review of class action litigation funding underway
The Australian Law Reform Commission is undertaking a review into whether third-party litigation funding of class actions should continue to be permitted, and if so, in what circumstances. The ALRC has proposed a number of measures, including requiring disclosure of third-party funding. requiring third-party litigation funders to obtain and maintain a “litigation funding licence”, and permitting lawyers acting for the representative plaintiff to enter into contingency fee arrangements. A public consultation on the proposals recent closed and the ALRC will be required to provide its final report to the Attorney-General by 21 December 2018. Read more here.
Internet courts to admit evidence verified by blockchain
China has become the first jurisdiction to allow blockchain authenticated evidence to be used in its courts. A Judicial Interpretation issued by China’s Supreme People’s Court (SPC) confirmed that, as of September 2018, internet courts would admit as evidence any digital data that has been authenticated by electronic signatures, time stamps, hash value checks, and other tamper-proof verification methods stored on blockchain platforms. China's internet courts are dedicated to handling internet-related cases, with court proceedings generally taking place online. The first opened in Hangzhou in June 2017, with two further courts in Beijing and Guangzhou opening last month. Read more here.
Code of Practice for third-party funding of arbitration and mediation published
Hong Kong's Department of Justice has launched a public consultation on the draft Code of Practice for Third-Party Funding of Arbitration and Mediation. Hong Kong passed its long-awaited third-party funding law in June 2017, but the parts of the law which legalize third party funding won’t take effect until a suitable code of conduct, setting out the practices and standards with which third-party funders of arbitration and mediation must comply, is finalized. Once in effect, third-party funders will be permitted to fund arbitration proceedings in return for a share in a successful outcome, and this will apply to both arbitrations seated in Hong Kong as well as services provided in Hong Kong in relation to arbitrations seated elsewhere. The consultation on the draft code of conduct will remain open until 30 October 2018. Read more here.
Assembly passes bill modernizing region's arbitration regime
The Legislative Assembly of Macau has passed a new draft arbitration bill, with the aim of modernizing the Special Administrative Region's arbitration regime. At present, Macau has separate legislative regimes for domestic and international arbitration, both of which are over twenty years old, and confusing rules mean it is not always clear which regime should apply. The bill, which is based on UNCITRAL Model Law, creates a single, unified arbitration regime for domestic and international arbitrations. It is seen as an attempt to position Macau as the arbitral seat of choice for disputes between Chinese and Portuguese speaking countries. Read more here.
ICSID considers major changes to rules
The International Centre for Settlement of Investment Disputes has proposed far-reaching reform of its rules governing disputes between states and foreign investors. The proposed changes, the first for 12 years, include mandatory electronic filing, an obligation to disclose third-party funding, new rules for expedited proceedings, shortened timelines for the rendering of awards and new rules on mediation. Consultation on the new rules is open until 28 December 2018. A vote on the amendments is expected in 2019 or 2020 and will require the approval of two-thirds of ICSID’s 154 member states. Read more here.
UNCITRAL publishes Model Law on recognition and enforcement of insolvency-related judgments
The United Nations Commission on International Trade Law has published new model rules on the recognition and enforcement of insolvency-related judgments. These build on UNCITRAL’s 1997 Model Law on Cross-Border Insolvency, which requires signatories to adopt a unified approach to insolvency law in the areas of access, recognition, assistance and cooperation. The 1997 rules did not, however, make specific provision for the enforcement of insolvency-related judgments, so it is hoped that the new rules will make enforcement more predictable and efficient. It remains to be seen whether the 44 signatories of the 1997 Rules will also adopt the new model law. Read more here.
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Benjamin Roe, Baker & McKenzie