Environmental Dispute Resolution in China
Jingjing Liu Vermont Law School NAELS Conference, March 21, 2008
Overview
• Environmental Litigation • Environmental ADR - Mediation: 1) People’s Mediation 2) Administrative Mediation 3) Court-performed Mediation Conclusion
Environmental Litigation
• Dramatically increasing environmental disputes & civil litigation in general v. few environmental litigation cases • Statistics from China’s State Environmental Protection Administration (SEPA)
Growth of Civil Litigation
3500000 3000000 2500000 2000000 1500000 1000000 500000 0 1978 1990 1995 2001 2004 2005 2006 num ber of ci vi l cases accept ed by cour t s of f i r st i nst ance num ber of envi r onm al ent pol l ut i on com pensat i on cases
Reasons for Few Environmental Litigation Cases Technical – complicated causes, lack of technological knowledge, difficult to obtain evidence because of weak environmental monitoring system, etc. Legal – victims’ awareness of using litigation to protect their rights, ambiguous laws, etc. Political – government’s preference between economic development & environmental protection, concerns of class action, etc.
Basic Principles
• Recognition of No Fault Liability for Environmental Damage • Reversing the Burden of Proof in Environmental Litigation • Joint and Several Liability • 3-Year Statute of Limitations
Environmental ADR
• Why to use ADR in addressing environmental disputes? - Litigation v. ADR - Special advantages of using ADR in environmental cases - China context
Mediation
• China has been one of the world’s most committed nations in the use of mediation to resolve disputes • Operates the largest and most extensive mediation program worldwide • “Oriental Experience”
History of Using Mediation
the United States
ADR movement in 1960s
China
More than 2,000 years
Reasons of Using Mediation
the United States efficient, flexible and affordable dispute resolution China • Confucian Philosophy • Maoist Principles • A Troubled Court System
Confucian Philosophy
Two Important Confucian Principles
• Li
--the preservation of natural harmony
• Jang --compromise or yielding to settle disputes
Cultural Differences
• the United States and other western nations tend to favor litigation as a means to protect rights and pursue justice • Chinese culture does not consider compromise or humility in dispute resolution as undesirable or as a sign of weakness.
It is better to keep a friend than to win a victory.
It is better to be vexed to death than to bring a lawsuit.
Maoist Principles
Maoist Principles
In addition to the obvious benefits such as avoiding cost, delay and undesirable social disorder, mediation also served as a means of “educating people and implementing Communist party policy”.
A Troubled Court System
• corruption among judges • the lack of meaningful qualifications to become a judge • a judicial branch that operates under the stringent watch of the Communist Party • the inaccessibility of published codes and case law.
Forms of Mediation
the United States • Court-annexed Mediation • Community Mediation • Mediation associated with specific agencies (eg. EPA’s use of mediation in enforcement cases concerning CERCLA) China • Court-performed Mediation • People’s Mediation • Administrative Mediation
Court-Performed Mediation
• Judge who hears the case acts as mediator • Mediation is a way of exercising the power of adjudication by judge • Mediation agreement has the same effect as an adjudication award • Mediation agreement generally cannot be appealed
An Example of Court-Performed Mediation in Environmental Litigation
• Pang Zonglin v Wulumuqi Minerals Bureau Tiechanggou Mine Site (1994)
excessive noise egg-laying decrease syndrome decision by trial court mediation in the appeal process
Problems with Court-Performed Mediation
• Coercion • Lack professional training as a mediator • Excuses for judge to avoid applying the law because of insufficient legal knowledge
People’s Mediation
• Organized by the People’s Mediation Committees, under the supervision of local courts • Local People’s Mediation Committees mediate 7 million cases a year, reached agreement in 90% of the cases • Types of cases accepted • Mediation agreement • Free • Mediators
Administrative Mediation
• Generally less common but plays a special role in environmental disputes • Jurisdiction • Advantage of administrative mediation in environmental disputes • Mediated settlement not subject to judicial review • Problems & possible reform
Conclusion/Thoughts
• A healthy balance between litigation and ADR in solving environmental disputes • Specialized environmental dispute resolution legislation • Enhancing environmental protection agency’s role in supporting ADR programs • Training of environmental dispute resolution specialists