The Risks of Apparent Bias When an Arbitrator Acts as a Mediator: Remarks on Hong Kong Court’s Decision in Gao Haiyan

Summary

This article examines the long-running debate over whether the same neutral may act as both mediator and arbitrator in one dispute — a question on which there is still no international consensus. It focuses on the Gao Haiyan litigation in Hong Kong, in which the Court of First Instance refused in 2011 to enforce a mainland Chinese award on public-policy grounds because the arb-med process appeared biased, a ruling later reversed by the Court of Appeal. The article considers what the case means for combined mediation-arbitration procedures, explains how differing legal traditions shape attitudes towards such hybrids, and recommends practical safeguards arbitrators can adopt when attempting settlement to reduce the risk of challenge or refusal of enforcement.