Dr Christopher To is an independent mediator and arbitrator who is on the panels of various leading global alternative dispute resolution bodies. He has arbitrated a variety of international cases involving both ad hoc and institutional arbitrations. Christopher has mediated many international and domestic cases, and represents clients in cases within the dispute resolution field. He is an accredited mediator, a chartered arbitrator, a chartered engineer, a chartered information technology professional, a barrister-at-law and a law professor (adjunct).
What do you enjoy about having an international disputes practice?
Having an international practice allows me to interact with different nationalities, and to understand their way of practice and their culture. This without doubt helps to broaden my knowledge and outlook, especially the legal principles and practices relating to their jurisdiction.
How has the practice of mediation evolved since you first began your career in 1995?
When I begin to practise mediation in 1995, there were no standard procedures or requirements one had to adhere to (except for the concept of confidentiality), let alone the issue of accreditation/certification of mediators. There were only a few practising mediators in the market at that time and most of them knew each other well. Today mediation has become more structured and disciplined with developed ethnical codes of conduct for mediators. Without doubt this is a good thing from a user’s point of view, as it ensures that those practising are recognised to a certain standard and are competent. Mediators also benefit by projecting themselves as professional dispute resolution practitioners, recognised by a credible alternative dispute resolution institution or provider.
To what extent has maintaining expertise across a broad range of industry sectors benefited your practice?
It has benefited me tremendously, as clients do look for specific industry expertise and if you have that expertise clients are keen to work with you. They appreciate that you are one of them, and that you understand their needs. In fact, understanding the technology and the specific industry terminology can assist you in grasping the clients’ underlying issues with a view to formulating the best strategy to adopt in advancing the client’s case.
What are the most common sources of construction disputes and how do you think clients can minimise the risks of them occurring?
The most common sources of construction disputes range from the non-compliance with the contractual obligations to the failure to properly administer the contract. One consideration the client can make is the use of collaboration/partnering practices. Partnering promotes innovative and non-confrontational project delivery, where the interests of all parties are better aligned. The main requirement for partnering is a desire for all parties to a contract to work together and improve on project delivery. For partnering to be successful, all parties in a construction project must appreciate the benefits of a collaborative team effort in achieving win-win outcomes. This attitude must be driven by commitment from the top, and adopted at all levels within each organisation. Commitment to maintaining relationships and ensuring good communication usually leads to success. A successful partnering arrangement will transform confrontation into cooperation and distrust into trust; promote team spirit and effort; and ultimately improve project performance without resorting to dispute resolution.
Do you think clients are becoming more persuaded by the benefits of alternative dispute resolution?
Clients are increasingly adopting alternative dispute resolution processes to resolve their disputes, as traditional court litigation is becoming more expensive and time-consuming. Alternative dispute resolution has its advantages in terms of confidentiality and international enforceability under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. With an increasing trend towards global trade, clients believe that alternative dispute resolution is more flexible and responsive to one’s needs and is more likely to preserve goodwill, or at least not escalate the dispute, which is crucial in situations where there is a continuing relationship.
Your practice also spans international arbitration. If you could implement one reform in international arbitration what would it be?
The mandatory use of expedited arbitration procedures by various arbitral institutions, where the amount in dispute is below a certain threshold; and that the contract provisions do not specify the adoption of such a procedure. This would facilitate cost-effective and efficient arbitration.
In what ways has teaching at City University of Hong Kong enhanced your work in private practice?
It has enhanced my work in private practice in two ways. First, it helps to keep my knowledge current as I need to be up to date with the latest case law and practices. Second, many graduates are now my friends and we often meet up to discuss legal developments in various jurisdictions.
What do you think will be the greatest challenge faced by the generation of mediation practitioners behind you?
Since I started practising mediation in 1995, the number of qualified mediators has grown tremendously. The greatest challenge for future practitioners would be sustaining a steady practice, given that there are more mediators in the market for clients to choose. Having sound ethical principles and treating mediation as your passion will go a long way in elevating your status as one of the top-notch mediators internationally.