ICC—Australia
Asia-Pacific Commercial Mediation Competition Final Presentation: 9 July 2017
Excerpt from the presentation speech made by His Honour Justice Clyde Croft.
“It is a great pleasure to be with you this afternoon to award the first placed team in the International Chamber of Commerce—Australia’s Asia Pacific Commercial Mediation Competition which is the first of its kind in the Asia Pacific Region.” Said His Honour Justice Clyde Croft
“Congratulations to all participants that have competed over the past three days and particular mention to the teams in the final round which we have all just witnessed. It was wonderful to watch.
“It was not too long ago in April 2014 that I spoke at the ICC Australia event launching the then new ICC Mediation Rules. It is very encouraging to see that they have been embraced by the profession in this Region.
“As Judge in Charge of three lists in the Commercial Court of the Supreme Court; namely the Arbitration List, Taxation List and a General Commercial List, I see mediation as often a key component in the management of proceedings before me. From time to time parties encounter procedural problems in mediation that might, in an international context, easily have been avoided by an agreement to adopt a comprehensive body of rules for the conduct of the mediation. This is particularly so with the emergence of a global economy, and transnational disputes—where parties to arbitration and mediation come from different nations and possibly divergent cultures.
“The facilitation of international trade and alternative dispute resolution procedures is at the heart of the ICC’s mission. Founded by a group of visionary industrialists, financiers and traders in the aftermath of the first world war, the ICC has, since 1919, taken a central role in forging international dispute resolution rules, mechanisms and standards that are used every day in a rapidly changing world.
“In a commercial dispute parties have recourse to a suite of dispute resolution options without resorting to formal court proceedings. Of course one of these options is arbitration which relative to litigation can be low cost and timely. However, arbitration still has that degree of procedural and substantive, complexity and formalism, making it slower and more costly than the most efficient dispute resolution process of all—mediation.
“Mediation is an inherently flexible process that transcends systematic legal formalism. It can quickly take the heat out of disputes, particularly in international commerce when the dispute may simply be the result of cultural or other misunderstandings. We all know that domestically, mediation has played an important role in dispute resolution for some time. In the Commercial Court, judges, myself included, are loath to let a matter run to trial without at least one attempt at the matter being mediated. In fact, it would be rarer indeed for a commercial mater in this Court to proceed to trial without a prior mediation. Mediation allows parties to fashion their own outcomes and potentially reach a settlement outcome that a court could not provide due to the confines of court processes, established law and available remedies at law.
“In terms of international commerce —the ICC Mediation Rules provide an easy to use the framework and comprehensive body of rules for the conduct of a mediation. Due to the ever expanding global economy and the transnational disputes that can follow—having a set of rules that cannot be seen as favouring any one culture—legal or otherwise—or nation is imperative. They represent best practice for the conduct of mediations internationally and provide for a flexible procedure aimed at achieving a negotiated settlement, whilst ensuring transparency, efficiency and fairness.” concluded His Honour Justice Clyde Croft
ICC—Australia has been instrumental in promoting and growing mediation and arbitration in Australia and more broadly the Asia-Pacific Region. Its work deserves the praise and support of the courts and the commercial community, domestically and internationally.
