malaysian legal system on alternative dispute resolution

Prepared by Akmal Marizalee & Jamielyn Jimmy 2010937999 Group B

Rohani Ahmad Akmal Marizalee

Negotiation

There two types of negotiation

a) Positional bargaining

- A negotiation where negotiator took on a position and undergo contest of will.

- Two position in this bargaining process:-

I- Soft positional negotiator

II- Hard positional negotiator

- Soft positional negotiator use soft approach

I- He will try to avoid contest of will against the other party.

II- He will make concession in order to reach settlement in order to maintain or

cultivate relationship.

III- He will accept agreement which is detrimental to him in order not to harm the

relationship with other party.

IV- The main objective is to reach settlement without harming relationship with

other parties

- Hard positional negotiator use hard and strict approach

I- He will try to win contest of will.

II- He will demand concession as condition for relationship & agreement.

III- He will only accept settlement that is beneficial to his interest regardless of the

detrimental effect to the other party.

IV- The main objective is to protect his interest.

- Therefore, it can be said that positional bargaining is where negotiator took a stand as a basis

for negotiation either to use soft or hard approach.

- The weakness of this method of negotiation is that the negotiator will often give more focus on

position rather than their dispute.

- This will cause the disputing parties to unable reach agreement.

- Even if the disputing parties may come to an agreement, the agreement may perhaps not be fair

to both sides.



b) Principled Negotiation

- This method of negotiation was developed in the Harvard Negotiation Project.

- This method of negotiation focus on four principle

I- People

o The negotiator separates the people from the problem.

o They work as team and focus on the problem instead of the people.

o This principle is where the negotiator uses the hard approach against the

problem and soft approach against the people.

II- Interest

o Negotiator focus on interest instead of the position of the disputing

parties.

o This will enable both parties to safeguard their interest.

o Therefore, a more acceptable agreement to both parties may be

reached.

III- Options

o The parties may generate variety of possible solutions for the dispute.

o They may invent a solution from the variety of suggestion of options

generated.

o They may the pick the most suitable solution for mutual gains.

IV- Criteria

o The parties, may, in choosing the option for solution, insist that it must

be based on some objective standard.

o Both parties must be able to reason and be open to reason.

o This will enable a fair and mutually beneficial solution to both parties.

o The parties should only yield to the principle; they must not yield to the

pressure or a positional influence.



Collective bargaining and collective agreement is both governed by Industrial Relation Act (IRA)

Collective bargaining (CB)

- Definition

a) Section 2 of IRA

b) Negotiating with a view to the conclusion of agreement.

- Procedure

a) Section 13

(1) Invitation to start collective bargaining either by trade union of employers/employer or

trade union of employee.

(2) Invitation must be made in writing. The proposal which may be put forward, training for

workmen, annual review of wage system, r performance based remuneration system.

(3) May not contain proposal for promotion or dismissal or reinstatement of any worker as it is

the discretion of the employer.

(4) Reply notifying acceptance or rejection to the invitation shall be made within 14 days of

receipt of invitation.

(5) After invitation and reply notifying invitation is made, CB shall commence within 30 days of

receipt of reply notifying acceptance of invitation.

(6) If invitation is refused, or not accepted within 14days, or CB is not started within 30 days of

reply notifying acceptance to invitation, a party may make notification to Director General

(DG), in writing for him to take necessary step to commence CB without undue delay.

(7) If such step has been taken, and there is still refusal to commence CB, a trade dispute shall

deem to exist.



Collective agreement (CA)

- Definition

a) Section 2 of IRA

b) An agreement in writing concluded between an employer or trade union of employer with trade

union of employee on matter concerning conditions & term of employment or relations

between employer and employee.

- Content of CA

a) Section 14 (2)

b) Must contain

I- Name of parties in agreement

II- The period it shall be enforceable (must be enforceable for at least 3 years)

III- Procedure for termination or modification of CA

IV- Procedure for interpretation or reference to court for any issue that may arise unless a

machinery to settle such issue is already provided.

- Procedure to enforce CA

a) Section 16

(1) Signed copy of document shall be jointly deposited by parties within one month from

the date of the agreement being entered into for court to take cognizance.

(2) Court may

I- Refuse to take cognizance if CA does not comply with requirement of Section 14, or

II- Before taking cognizance, require the parties to amend part of CA that does not

comply with Section 14.

(3) Court itself may amend the CA and enforce it if parties agree to the amended CA.

- Effect of CA

a) Section 17 (1)

CA is binding on

I- Successors, assignees, transferees of employer or trade union of employer.

II- All workmen employed, subsequently employed, or employed in the undertaking of the

said CA.

b) The effect of this section was illustrated in the case of Kesatuan Kebangsaan Wartawan

Malaysia v Syarikat Pemandangan Sinar.



Mediation

Process

Majlis Sulh Mediation Mediation Session

a) Introduction to Majlis Sulh

b) Opening Statement - Sulh Officer lay down ground rules in

Majlis Sulh process

c) Joint Session - Parties discuss dispute in presence of

Sulh Officer - Enable the officer to identify general

issues.

d) Private Caucuses (optional) - Party discusses issues with officer

privately. - Parties may vent hidden issues and

emotion and speak freely. - Allows officer to identify hidden issues.

e) Subsequent Joint Session - Allows parties to discuss issues with

officer and officer is able to facilitate discussion with the information obtained from previous sessions.

f) Settlement Agreement - If there is a settlement agreement, may

be submitted to court to be endorsed and become consent judgment.

- If there is no successful mediation agreement, parties may proceed to trial.

Mediation Session

a) Pre- Mediation process - Parties sign mediation agreement to

indicate their submission to mediation.

b) Mediators Opening (Opening Statement) - Mediators lay down ground rules and

have a brief statement of facts be heard.

c) Joint Session - Parties discuss dispute in presence of

mediator - Enable the mediator to identify general

issues.

d) Private Caucuses (optional) - Party discusses issues with mediator

privately. - Parties may vent hidden issues and

emotion and speak freely. - Allows mediator to identify hidden

issues.

e) Subsequent Joint Session - Allows parties to discuss issues with

mediator and mediator is able to facilitate discussion with the information obtained from previous sessions.

f) Settlement Agreement - If there is a settlement agreement, may

be submitted to court to be endorsed. - Or it can be enforced as a mere contract. - If there is no successful mediation

agreement, parties may try other ADR or bring action to court.



Difference

Majlis Sulh MMC (Malaysian Mediation Centre)

Compulsory or not

- Court annexed process.

Compulsory or not

- A voluntary submission process.

Charge

- Free of charge, salary of Sulh officer is determined by State.

Charge

- Fees depend on the value of subject matter in mediation and may be charged with additional administration fees.

Qualification

- Sulh officer must hold either: a) 1st Degree in Islamic Studies b) Diploma in Administration and

Islamic Judiciary either form UKM/UIAM

c) Any qualification equivalent to a Syariah Subordinate Court Judge

Qualification

- Previous condition was 7 years practicing as lawyer

- Now, open to all, provided, undergo 40 hour training and passed the assessment to qualify as mediator.

Attendance

- Attendance is compulsory as it is part of court’s process.

Attendance

- Attendance depends on parties as it is a voluntary process.

Method of reference

- Parties must first file a case in Syariah Court

Method of reference

- By either a joint submission or by request to submit to mediation process.

Governing law

- Is governed by State’s Enacment or Federal Statute

Governing law

- Is only based on Mediation Rules

Mediator

- Sulh officer is a full time mediator

Mediator

- There shall be a part time (lawyer) and full time mediator.



Venue

- In the room of Sulh Officer as it is in the same room as court.

Venue

- Parties may decided on place, or may use the MMC building

Mediation agreement

- Parties do not need to sign mediation agreement because it is a court process. (please note mediation agreement is an agreement to submit to mediation. It is different from settlement agreement.

Mediation agreement

- Parties must sign mediation agreement as an evidence of voluntariness.

Stage of reference

- Sulh process can be referred a) After filing their case in Syariah

Court b) Any time before judgment is

read.

Stage of reference

- May refer to mediation process at any time.

Code of Etiquettes

- Kod etika Pegawai Sulh - Sulh Rules 2001 - Manual Sulh

Code of Etiquettes

- MMC Code of Conduct - MMMC Mediation Rules



Similarities

Majlis Sulh Mediation (MMC) Outcome of successful mediation

- Endorsement will be sent to Court for a consent judgment.

Outcome of successful mediation

- May be submitted to court to be endorsed to be a consent judgment.

- Even if not submitted to court, the settlement agreement is still enforceable as a binding contract.

Outcome of unsuccessful mediation - Proceed to trial

Outcome of unsuccessful mediation

- Try other ADR or bring action in court

Model adopted

- Facilitative mediation. - Where officer act to assist parties to

agree for solution not impose solution.

Model adopted

- Facilitative mediation. - Where mediator act to assist parties to

agree for solution not impose solution.

Qualification of accredited mediators

- Complete 40 hours training and status a recognized mediator.

Qualification of accredited mediators

- Also to complete 40 hours of training to be accredited as mediator.

Confidentiality

- The information is confidential. - Officer cannot disclose information

except as provided in any statutory provision.

Confidentiality

- The information is confidential. - Mediator cannot disclose information

except as provided in any statutory provision.



Roles

Sulh Officer Mediator

a) To provide basic legal information and Hukum Syara’ where parties are not aware of their rights as they were unrepresented.

b) As middle person to 2 disputing parties guiding them to a peaceful settlement and also to persuade them to re-evaluate the reasonableness of their claim.

c) Simplifying the party’s problem with the aim of finding a solution.

d) Helping to reduce the workload of judge by attempting to reduce the number of cases pending in court.

e) Assist parties to negotiate and reach mutually beneficial solution.

a) Help parties to come out with a solution

and explore these solutions.

b) Give options of solution when parties are stuck in their dispute

c) Help both parties to see their interest.

d) Help parties to generate their options for settlement.



Conciliation

Definition

- To pacify, or to cool down state of anger.

- Conciliation in dispute settlement is basically similar with negotiation, but differ in the use

of neutral third party to negotiate to reach settlement.

Role of conciliator

- Contact & interview disputing parties.

- Assist parties in exchange of information

- Facilitate the resolution by suggesting options

Conciliation & its uses

- Trade dispute

a) Industrial Relation Act

- Family matter

a) Law Reform (Marriage & Divorce) Act

b) Islamic Family Law (Federal Territories) Act



Conciliation in trade dispute Industrial Relation Act

- S18

(1) – If trade dispute failed to be resolved, either party to the dispute, may report to DG

(2) – DG may take necessary steps to promote settlement.

(3) – if the failed collective bargaining involves public interest, DG will intervene regardless of report

being made or not.

(5) – if still unresolved, DG shall notify Minister

- S19

(1) Parties must furnish relevant information and document to DG.

(2) DG may require the disputing parties to attend compulsory conference presided by him.

- S19A

Minister may take necessary steps to conciliate trade dispute

- S19B

(1) Both parties may be

(a) Represent themselves with an officer or employee of their trade unions

(b) May be represented by any official of an organization of employers/employee

registered in Malaysia

(2) Parties may not be represented by lawyer



Conciliation in Family Matters

Difference

IFLA LRA Governed by Section 47 of IFLA

Governed by Section 106 of LRA

Conciliatory Committee a) A religious officer as Chairman

b) One representative for each husband and wife appointed by Court

Conciliatory Body (any of the following) a) A council set up by authority of the

religion

b) A marriage tribunal which shall consist of: I- A Chairman II- Not less than 2 and not more than 4

members III- Appointed by the Minister or officer

he delegate his power to

c) Any body approve by Minister.

Venue

- Department of Religious Affairs at the given State

Venue

- Registrar of Divorces and Marriages set up by Marriage Tribunal

Process

a) Conciliation under this Act is not mandatory but the court may order for conciliation only if I- There is reasonable ground to salvage

the marriage II- Where one party does not consent to

the divorce

Process

a) Conciliation is a mandatory process as provided under this section in order to proceed with the application of divorce

Outcome of successful conciliation

- Syariah court will dismiss the application for divorce

Outcome of successful conciliation

- LRA is silent on the effect of successful conciliation.

Exemption of conciliation process

a) Other party is residing in outside West Malaysia and is foreseeable not to come back within 6 months from date of application.

b) Other party is imprisoned for 3/more years.


a) Other party is residing abroad and is foreseeable not to come back within 6 months from date of petition.

b) Other party is imprisoned for 5/more years.



Similarities

IFLA LRA Method to count period to effect conciliation

a) Within 6 month from the date of conciliatory committee being established

Method to count period to effect conciliation

a) Within 6 month from the date of reference of the petition of divorce


a) Applicant alleged d that there has been a desertion of spouse or unknown whereabouts of spouse.

b) Applicants alleged other party is suffering from incurable mental illness.

c) Where Court satisfied there is exceptional circumstances


a) Applicant alleged d that there has been a desertion of spouse or unknown whereabouts of spouse.

b) Applicants alleged other party is suffering

from incurable mental illness.

c) Where Court satisfied there is exceptional circumstances

Representation

a) Parties may not be represented by Peguam Syarie.

Representation

a) Parties may not be represented by an advocate or solicitor.

Outcome of unsuccessful conciliation

a) Court will issue certificate regarding maintenance, division of matrimonial property and custody of minor children other matter related to marriage.

Outcome of unsuccessful conciliation*( note that the section for this is S47(5))

b) Court will issue certificate regarding maintenance, division of matrimonial property and custody of minor children.

Grounds for conciliation

a) When there is a reasonable possibility of conciliation between parties.

Grounds for conciliation * (note that the section for this is S55(2))

a) Where there is a possibility of conciliation between parties to the marriage.



Disciplinary Board

Establishment & Composition

- Section 93 of Legal Profession Act (LPA)

- Proceedings for disciplinary purpose shall be under Disciplinary Board established under

this proviso.

- Disciplinary Board shall consist of

a) Chairman which is a judge or retired judge (of High Court/ Court of Appeal/ Federal

Court) that is to be appointed by Chief Judge after consultation with Bar Council.

b) President of Bar Council or any member of Bar Council as his representative.

c) Fifteen practitioner members of Bar Council of 15 years standing appointed by Chief

Judge for a term of two years.

- The chairman of the Disciplinary Board, President of Bar or his representative shall disqualify

themselves in the interest of justice and the remaining members of Disciplinary Board shall

elect one of them to preside over the meeting.

Power of Disciplinary Board

- Section 94 of LPA

- Advocate been guilty of misconduct shall be liable to be struck off the Roll or suspended

from practice for any period not exceeding five years or ordered to pay a fine.

Complaint

- Section 99

- Any complaint of misconduct of any advocate and solicitor or of any pupil shall be in writing

and referred to the Disciplinary Board.

Investigation of Complaint

- Section 100

- If there is no merit in the complaint, shall dismiss the complaint and notify both complainant

and the advocate and solicitor.

- If there is merit in the complaint, the Board shall require a written explanation.

- Whether the advocate and solicitor provide a written explanation or not, after the

expiration of period to produce written explanation, the Board may determine,

a) if formal investigation is necessary, proceed to appoint Disciplinary Committee

b) if no formal investigation is necessary, proceed to consider the merit of the complaint.



Disciplinary Committee

- Section 103A

- If formal investigation is necessary, Board will appoint Disciplinary Committee from

Disciplinary Committee Panel.

- Shall consist of three persons

a) Two advocates and solicitors

b) One lay person

- Section 103B

- The Disciplinary Committee shall commence its investigation of the complaint into writing

and report to the Board.

- Section 103C

- Disciplinary Committee shall record its finding and make recommendation

a) That no cause for disciplinary action exists.

b) That cause of disciplinary action exist but is not enough to warrant punishment except

for warning

c) There is merit to complaint and disciplinary action should be taken.

- Section 103D

- The Board may affirm, reject the recommendation by Disciplinary Committee.

- Section 103E

- Appeal from decision of Board may be made to High Court, then Court of Appeal, then

Federal Court.

Pushpam v Majlis Peguam Malaysia

- The issue of the breach of natural justice audi alteram partem does not arise as the

judgment granted in her absence was due to her own fault.

- Misusing client’s money also falls to dishonest act.

Teoh Hooi Leong v Bar Council

- Restoration of the names struck off the Roll is possible provided that he proved that he is a

proper and fit person. The court may restore if it thinks it is fair to the interest of public and

also, to the interest of the person concerned.

Dato Kanalingam v Bar Council

- There is a breach of natural justice nemo judex in causa sua with the participation of

President Bar Council in the Disciplinary Board where he should disqualify himself as Bar

Council is the complainant of this misconduct.



Arbitration

Definition

a) Arbitration

- Grace Xavier – Law and Practice, Arbitration in Malaysia

- Agreement of parties to submit all existing and future dispute to arbitration.

- Syed Khalid Rashid – ADR in Malaysia

- Legal process which enables parties to a contract to refer their disputes to an arbitrators or

panel of arbitrator.

b) Section 2 of Arbitration Act (AC)

- Arbitral tribunal

Means sole arbitrator or a panel of arbitrator.

- Award

Decisions of arbitral tribunal on the substance of dispute but does not include interlocutory

order.

- Presiding arbitrator

Means arbitrator designated in arbitration agreement to be presiding arbitrator, or

chairman of arbitrator tribunal, a single arbitrator, or the third arbitrator appointed by the

two arbitrators. (Basically, arbitrator that is agreed by both party to have power to give

award)

- Seat of arbitration

Means the place where the arbitration is based on. (referring to the process and the rules

that apply to the arbitration process is the rule applicable in the rules of the place not the

venue of arbitration)

- Arbitration agreement

Agreement to submit all or part of the dispute that may arise or already exist to the

arbitration process (definition pursuant to Section 9)



Type of arbitration

- Section 3

a) Section 3 provide for two types of arbitration, domestic and international arbitration.

b) Difference

Domestic arbitration International arbitration

1) Definition - Section 2 - Arbitration which is not international

arbitration. 2) Application

- Section 3 - Part III of AC shall apply unless party

agreed otherwise in writing.

1) Defintion

- Section 2 - One of the parties to arbitration, at

the time of conclusion of that agreement, has it place of business in other State than Malaysia.

- Or - Any three situation

a) The seat of arbitration is determined outside Malaysia.

b) The substantial part of obligation is to be performed outside Malaysia.

c) Parties have expressly agreed that the subject matter of arbitration agreement relates to more than one State.

2) Application

- Section 3 - Part III of AC shall not apply unless

party agreed otherwise.

Form of arbitration agreement

- Section 9

- Arbitration agreement is an agreement by parties to wholly or partially of the existing

dispute or which that may arise in the future.

- Form of arbitration agreement may be in form

a) Arbitration clause in an agreement

b) In a separate agreement to submit to arbitration.

- Arbitration agreement must be in writing.



Order to submit to arbitration agreement ( stay of proceeding)

- Section 10

- Party may apply to court prevent the other party from commencing action in court and to

have them submit to arbitration.

- The condition is, party must not take any other steps but to stay those proceeding.

- In the case of Sanwell, the Federal Court held that the meaning of not taking other steps is

that the party must enter unconditional appearance.

- But the court may reject this application if;

a) The arbitration agreement is void.

b) The dispute in action is not a subject matter to the arbitration agreement.

Number of arbitrators

- Section 12

- International arbitration, three arbitrators.

- Domestic arbitration, single arbitrators.

Appointment of arbitrators.

- Section 13

- Parties are free to appoint arbitrators.

- If parties failed agree on appointing arbitrators, each party may appoint arbitrator from

their part, and the two arbitrator shall appoint the third arbitrator ( which shall be the

presiding arbitrator)

- If both the appointed arbitrator fails to appoint the third (presiding) arbitrator within the

period agreed between parties, either party may apply to the Director of Kuala Lumpur

Regional Centre for Arbitration (KLRCA) for such appointment.

- In arbitration with single arbitrator, if parties failed to agree on arbitrator appointment or

procedure of appointment, either party may apply to Director of KLRCA.

- If parties agreed with the procedure of appointment of arbitrators, but

a) Fails to act under such procedure or

b) Unable to reach agreement under such procedure

Either of them may apply to Director of KLRCA to take measures to secure appointment of

arbitrator.

- If Director of KLRCA fails to perform as such within 30days of request, parties may apply to

High Court for such appointment.

- Director of KLRCA shall, take into accounts when appointing the arbitrators

a) Qualification required by parties

b) Other factor to secure independent of arbitrator.

- No appeal against the decision of Director or High Court in appointing arbitrators.



Grounds to challenge arbitrators

- Section 14

- Potential arbitrators shall disclose any factors that may give rise to the elements of

impartiality.

- Arbitrators may be challenged if

a) The circumstances give rise to justifiable doubts of the arbitrator impartiality or

independence.

b) Does not possess the required qualification.

Procedure to challenge arbitrators

- Section 15

- Parties shall first send a written statement of the reasons to challenge the arbitral tribunal

or arbitrator.

- If the challenged arbitrator does not withdraw himself, the arbitral tribunal shall make a

decision on the challenge.

- If the challenge is unsuccessful, may apply to High Court, within 30 days of notice of decision

rejecting the challenge.

- The arbitration proceeding may progress regardless of the fact that the application is

pending in court.

- No appeal shall lie against decision of High Court.

Conduct of proceedings

- Section 20 – equal treatment

- Both parties shall be treated equally and be given opportunity to present his case

- Section 21 – procedure of arbitration

- The arbitral tribunal shall decide on the rules of procedure subjected to AC

- Section 22 – seat of arbitration (juridical seat – applicable law)

- Seat of arbitration shall be determined by arbitral tribunal taking into account circumstances

of case and convenience of parties.

- Section 23 – Commencement of proceeding

- Shall commence on date on which a request of writing for that dispute to be requested by

the respondent.



- Section 24 – Language

- Arbitral tribunal shall determine the language to be used.

- May order documentary evidence to be accompanied with translation.

- Section 25 – Statement of claim and defence

- The claimant shall state facts supporting his claim, points at issue, and relief he sought.

- Respondent shall state his defence against the claimant.

- Section 26 – Hearing

- Arbitral tribunal shall decide whether to hold oral hearing for presentation of evidence or

oral argument, or conduct the proceeding on the basis of documentary evidence only.

- Section 27 – Default of party

- If claimant fails to communicate statement of claim, or respondent fails to communicate

statement of defence, or any party fails to appear at hearing or to produce documentary

evidence, arbitral tribunal shall make an award against the defaulting party.

Termination of arbitral proceeding

- Section 34 - The arbitral proceeding may be terminated by;-

a) After granting final award

b) Claimant withdraw claims

c) Parties agree on terminating the proceeding.

d) The arbitral tribunal find the continuation of proceeding is either unnecessary or

impossible.

Effect of award

- Section 36

- Award shall be final and binding.

Application to set aside award

- Section 37

- may set aside if party is able to prove any of the following

a) A party under arbitration agreement was under any incapacity.

b) The arbitration agreement is invalid under the law it is subjected to.

c) The award is out of scope of arbitration agreement.

d) The composition of arbitral tribunal is not within parties agreement.

malaysian legal system on alternative dispute resolution

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