Promoting Culturally-Sensitive ADR for Emerging Asian Economies

Abstract

Alternative Dispute Resolution (ADR) is a fast growing method in the emerging Asian economies for dealing with the problem of congestion in the courts, the growth of foreign investment and the need for efficient commercial dispute resolution. But the key features of dominant ADR models, developed within western legal cultures, can clash with the more relational, hierarchical and face-saving norms of many Asian societies, reflecting individualist, low-context and rights-based norms. This article seeks to suggest that a culturally insensitive ADR transplant is likely to result in superficial settlements, lack of voluntary compliance and a general lack of trust. The article draws on theory in the field of cultural dimensions, indigenous dispute resolution traditions and recent reform experiences in Vietnam, Indonesia, Bangladesh and Pakistan to suggest a framework of five principles for designing culturally-sensitive ADR. It also makes policy recommendations on training, institutional design and legislative harmonization to incorporate cultural reflexivity in a manner that does not impinge on procedural fairness. The author concludes that the best way forward for the emerging Asian economies is a hybrid approach where traditional legitimacy is combined with new protective mechanisms; and that culturally aware dispute resolution design is not only about justice but is an essential tool for achieving an inclusive economic development