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The term “Dispute” in Alternative Dispute Resolutions (ADR) means-

“ a specific disagreement concerning a matter of fact, law or policy in which a claim or


assertion of one party is met with refusal, counter-claim or denial by the other”

The term “Resolutions” under the auspices of ADR denotes-


“the way of finding solution of a dispute by the agreement of both the parties with some mutually
agreed terms”

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
1) Process
Majlis Sulh Mediation
Mediation Session Mediation Session
a) Introduction to Majlis Sulh a) Pre- Mediation process
- Parties sign mediation agreement to
b) Opening Statement indicate their submission to mediation.
- Sulh Officer lay down ground rules in
Majlis Sulh process b) Mediators Opening (Opening Statement)
- Mediators lay down ground rules and have
c) Joint Session a brief statement of facts be heard.
- Parties discuss dispute in presence of Sulh
Officer c) Joint Session
- Enable the officer to identify general - Parties discuss dispute in presence of
issues. mediator
- Enable the mediator to identify general
d) Private Caucuses (optional) issues.
- Party discusses issues with officer
privately. d) Private Caucuses (optional)
- Parties may vent hidden issues and - Party discusses issues with mediator
emotion and speak freely. privately.
- Allows officer to identify hidden issues. - Parties may vent hidden issues and
emotion and speak freely.
e) Subsequent Joint Session - Allows mediator to identify hidden issues.
- Allows parties to discuss issues with
officer and officer is able to facilitate e) Subsequent Joint Session
discussion with the information obtained - Allows parties to discuss issues with
from previous sessions. mediator and mediator is able to facilitate
discussion with the information obtained
f) Settlement Agreement from previous sessions.
- If there is a settlement agreement, may be
submitted to court to be endorsed and f) Settlement Agreement
become consent judgment. - If there is a settlement agreement, may be
- If there is no successful mediation submitted to court to be endorsed.
agreement, parties may proceed to trial. - 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.

2) Difference
Majlis Sulh MMC (Malaysian Mediation Centre)
Compulsory or not Compulsory or not
- Court annexed process. - A voluntary submission process.

Charge Charge
- Free of charge, salary of Sulh officer is - Fees depend on the value of subject
determined by State. matter in mediation and may be charged
with additional administration fees.

Qualification Qualification
- Sulh officer must hold either: - Previous condition was 7 years
a) 1st Degree in Islamic Studies practicing as lawyer
b) Diploma in Administration and
Islamic Judiciary either form - Now, open to all, provided, undergo 40
UKM/UIAM hour training and passed the assessment
c) Any qualification equivalent to a to qualify as mediator.
Syariah Subordinate Court Judge
Attendance Attendance
- Attendance is compulsory as it is part - Attendance depends on parties as it is a
of court’s process. voluntary process.
Method of reference Method of reference
- Parties must first file a case in Syariah - By either a joint submission or by
Court request to submit to mediation process.

Governing law Governing law


- Is governed by State’s Enacment or - Is only based on Mediation Rules
Federal Statute

Mediator Mediator
- Sulh officer is a full time mediator - There shall be a part time (lawyer) and
full time mediator.

Venue Venue
- In the room of Sulh Officer as it is in - Parties may decided on place, or may
the same room as court. use the MMC building

Mediation agreement Mediation agreement


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

Stage of reference Stage of reference


- Sulh process can be referred - May refer to mediation process at any
a) After filing their case in Syariah time.
Court
b) Any time before judgment is read.

Code of Etiquettes Code of Etiquettes


- Kod etika Pegawai Sulh - MMC Code of Conduct
- Sulh Rules 2001 - MMMC Mediation Rules
- Manual Sulh

3) Similarities
Majlis Sulh Mediation (MMC)
Outcome of successful mediation Outcome of successful mediation
- Endorsement will be sent to Court for a - May be submitted to court to be endorsed
consent judgment. 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 Outcome of unsuccessful mediation


- Proceed to trial - Try other ADR or bring action in court

Model adopted Model adopted


- Facilitative mediation. - Facilitative mediation.
- Where officer act to assist parties to agree - Where mediator act to assist parties to
for solution not impose solution. agree for solution not impose solution.

Qualification of accredited mediators Qualification of accredited mediators


- Complete 40 hours training and status a - Also to complete 40 hours of training to be
recognized mediator. accredited as mediator.

Confidentiality Confidentiality
- The information is confidential. - The information is confidential.
- Officer cannot disclose information except - Mediator cannot disclose information
as provided in any statutory provision. except as provided in any statutory
provision.

4) Roles
Sulh Officer Mediator

a) To provide basic legal information and a) Help parties to come out with a solution
Hukum Syara’ where parties are not aware and explore these solutions.
of their rights as they were unrepresented.
b) Give options of solution when parties are
b) As middle person to 2 disputing parties stuck in their dispute
guiding them to a peaceful settlement and
also to persuade them to re-evaluate the c) Help both parties to see their interest.
reasonableness of their claim.
d) Help parties to generate their options for
c) Simplifying the party’s problem with the settlement
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.

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


1) Differences
Islamic Family Law Act Law Reform Act
Governed by Section 47 of IFLA Governed by Section 106 of LRA
Conciliatory Committee Conciliatory Body (any of the following)
a) A religious officer as Chairman a) A council set up by authority of the religion

b) One representative for each husband and b) A marriage tribunal which shall consist of:
wife appointed by Court 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 Venue
- Department of Religious Affairs at the given - Registrar of Divorces and Marriages set up
State by Marriage Tribunal

Process Process
a) Conciliation under this Act is not a) Conciliation is a mandatory process as
mandatory but the court may order for provided under this section in order to
conciliation only if proceed with the application of divorce
I- There is reasonable ground to salvage the
marriage
II- Where one party does not consent to the
divorce
Outcome of successful conciliation Outcome of successful conciliation
- Syariah court will dismiss the application - LRA is silent on the effect of successful
for divorce conciliation.

Exemption of conciliation process Exemption of conciliation process


a) Other party is residing in outside West a) Other party is residing abroad and is
Malaysia and is foreseeable not to come back foreseeable not to come back within 6 months
within 6 months from date of application. from date of petition.
b) Other party is imprisoned for 3/more years.
b) Other party is imprisoned for 5/more years.

2) Similarities

IFLA LRA
Method to count period to effect conciliation Method to count period to effect conciliation
a) Within 6 month from the date of a) Within 6 month from the date of reference
conciliatory committee being established of the petition of divorce

Exemption of conciliation process Exemption of conciliation process


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

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

c) Where Court satisfied there is exceptional c) Where Court satisfied there is exceptional
circumstances circumstances

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

Outcome of unsuccessful conciliation Outcome of unsuccessful conciliation*( note


a) Court will issue certificate regarding that the section for this is S47(5))
maintenance, division of matrimonial b) Court will issue certificate regarding
property and custody of minor children other maintenance, division of matrimonial
matter related to marriage. property and custody of minor children.

Grounds for conciliation Grounds for conciliation *


a) When there is a reasonable possibility of (note that the section for this is S55(2))
conciliation between parties. a) Where there is a possibility of conciliation
between parties to the marriage.

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 1) Defintion

- Section 2 - Section 2
- Arbitration which is not international - One of the parties to arbitration, at
arbitration. the time of conclusion of that
agreement, has it place of business in
2) Application other State than Malaysia.
- Or
- Section 3 - Any three situation
- Part III of AC shall apply unless a) The seat of arbitration is determined
party agreed otherwise in writing. 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.

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

Construction Dispute
Arbitration in Construction Dispute

The Malaysian courts have been actively involved in dealing with challenges in arbitration. In
Menang Development (M) Sdn Bhd v Pembinaan K& H Sdn Bhd & Anor,3 the plaintiff were
house developers who appointed the defendant as a contractor for their project. The plaintiff
challenged the architect certificate and applied for appointment of an arbitrator. The High
Court held that challenge of the architect certificate was not bona fide but nevertheless, the
plaintiff were not prevented from having the alleged defects and related claims to be arbitrated
on as it is their contractual right.

In Usahasama SPNB –LTAT Sdn Bhd v Borneo Synergy (M) Sdn Bhd,4 the plaintiff appointed
a
company, PPHM as its main contractor. The defendant was the subcontractor of PPHM. In the
course of performance of the work, PPHM purported to withdraw from the main contract
and recommended for the piling work to be continued by the defendant. Subsequently, a
deed of assignment was signed between the plaintiff and defendant and acknowledged by the
plaintiff. Later a dispute arose between the plaintiff and defendant relating to payment for the
work done. The defendant issued an arbitration notice pursuant to clause 54 of the main
contract. The Kuala Lumpur Regional Centre for Arbitration (KLRCA) appointed an arbitrator
who later exercised his discretion and passed an award in favour of the defendant. The
plaintiff took a court action contending that the appointment of the arbitrator is not valid and to
set aside the award. The court held that there was a clear intention between the parties that they
are bound by separate contract, which was based on terms of the main contract when PPHM
withdrew from the main contract. Evidence showed that the plaintiff and defendant had
conducted themselves as if terms of the main contract bind upon their relationship. Owing to the
fact that there existed a contract between the plaintiff and defendant based on terms of the main
contract, it follows that clause 54 of the P.W.D, which was a part of the main contract was a term
of the contract between the plaintiff and the defendant. As such, the arbitrator has discretion to
decide on the arbitration proceedings.

clauses on arbitration are found in clause 65 of PWD 203A (Rev. 2007),5 clause 34 of PAM
20066 and clause 47 of CIDB Building Works 2000 Edition.7 In all these standard forms, it
could be seen that arbitration is adopted as the final form of dispute resolution.

Adjudication
Adjudication involves an independent third party who considers the claims of both sides and
makes a decision. The adjudicator is usually an expert in the subject matter in dispute. Also,
adjudicators are not bound by the rules of litigation or arbitration. Their decisions are often
interim ones, i.e., they can be finalized using arbitration or another binding process.

Adjudication decisions are usually binding on both parties by prior agreement. In other words,
adjudication is generally binding for an interim period of time in order to resolve a dispute
quickly, but the specific issues settled may be arbitrated at a later time at the request of a party
for a definitive binding solution. Adjudication offers immediate, binding and affordable relief,
win or lose, with the opportunity of later revisiting contested issues in arbitration
Adjudication is very rare in Malaysia. Normally the application is alongside arbitration.

In Australia[]
Each state and territory has enacted legislation which provide for adjudication of progress
claims, starting with in 1999. There is very little harmony between the legislation in each
jurisdiction regarding the scope of contract covered and the adjudication procedure. However, in
all jurisdictions, adjudications are interim pending final resolution of the dispute under the
relevant terms of the contract.
In New South Wales[
The Building and Construction Industry Payment Act 1999 came into effect in New South Wales
on 26 March 2000 and applies to all construction contracts commenced on or after that date.
Amendments to the Act made in 2013 are not retrospective, however, earlier amendments are.
The Act does not apply to work, however, construction work ancillary to the operation of a
mine is covered. The Act also does not apply to work undertaken for a resident owner within the
meaning of the Home Building Act 1989.
In Queensland
The Building and Construction Industry Payments Act 2004 (BCIPA) came into effect in
Queensland in October, 2004. Through a statutory-based process known as adjudication a
claimant can seek to resolve payment on account disputes. The act covers construction, and
related supply of goods and services, contracts, whether written or verbal. BCIPA is regulated by
the Building and Construction Industry Payments Agency, a branch of the Queensland Building
Services.
In Victoria
Adjudication is a relatively new process introduced by the government of Victoria, Australia, to
allow for the rapid determination of progress claims under building contracts or sub-contracts
and contracts for the supply of goods or services in the building industry. This process was
designed to ensure cash flow to businesses in the building industry, without parties getting tied
up in lengthy and expensive litigation or arbitration. It is regulated by the Builders, sub-
contractors and suppliers need to carefully choose a nominating authority to which they make an
adjudication application
Small Claims
What is 'small claim procedure'?
1. Small Claim Procedure is where an individual (not agent or company or person
holding power attorney or etc) wants to claim from someone else (debt) using court
procedure, i.e. suing in court of law.
2. The total amount of claim must not exceeding RM5, 000-00
3. The claim must be made through summons in Magistrate Court
4. No lawyer can get involve in this small claim proceeding … (that's bad for me…
hehehe), everything is done by the plaintiff himself (person who is suing) with the
guidance of court (staff).
5. To illustrate, if B owes A RM 5, 000-00 and B refuses to pay, A can sue B in
Magistrate court under this 'small claim' procedure.

How to initiate this small claim procedure?


1st part: prepare your form and file it!

1. The same claim limit of not more than RM5,000-00;


2. Whoever wan to claim may do so by using form 198 (can be found inside the
Rules or get it from your nearest court) or type it your own (just make sure font, layout,
margin, spacing and paragraph are exactly the same
3. You need to state your claim amount and detail (story) of your claim in the form;
4. After you are done, sign it or thumb print;
5. Ok if you are done, bring it over the court, find the Registry Office and file it.
Well, yes you need to pay minimal fee.

So what's next?

1. Once the defendant receives your claim, he may defense himself or just admit the
claim
2. Assume that defendant defenses himself and deny your claim, now the defendant
should file his defense in form 165 explaining why he denies the claim
3. If the defendant fails to file his defense, the court may give judgment for you! On
the first or next mention date (the date stated in the form for parties to attend court)
4. If the defendant chooses not to attend at all the proceeding, the court may also
give judgment for you.
5. Now, say for example you got a stubborn defendant who wants to fight your case,
don't worry, because the judge will guide you and defendant through out the proceeding
collecting all relevant facts and evidences.
6. The court then will decide and give judgment after the proceeding.
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.
Mini Trial

A confidential, nonbonding exchange of information, intended to facilitate settlement. The goal


of mini-trial is to encourage prompt, cost-effective resolution of complex litigation. This two-
step process is used to facilitate settlement in which (a) the parties’ attorneys present a summary
of the evidence and arguments they expect to offer at trial to a neutral in the presence of
individuals with decision-making authority for each party, and (b) the individuals with decision-
making . Mini-trials can be described as a more elaborate version of early neutral evaluation.

A mini-trial most resembles a mediation hearing, in that there is a presentation by each party of
a summarized version of his or her case to a panel of persons for the purpose of resolving or
settling the dispute. Also like mediation, the parties are generally not bound to an outcome, and
may end the process at an impasse.

However, there is one important difference between a mediation and a mini-trial. In mediation,
the mediator is a neutral third party who does not take the side of either party, but instead tries to
facilitate open communication between the parties themselves in order to achieve compromise
and settlement. Even in court-ordered mediations conducted by a panel of mediators, the focus is
still on the parties: the mediators merely issue a recommendation to the parties for settlement
consideration.

Conversely, in a mini-trial, the mediators themselves are agents and advocates for the parties,
and they, rather than the parties, work out a settlement after hearing opposing sides to the
controversy (each goes into the mini-trial with advance authorization to settle the matter for a
certain dollar amount or under other conditions or criteria). The parties present their cases
(usually through their attorneys) but do not take active roles in the settlement negotiations nor
generally do their attorneys. The decision-makers in a mini-trial are the actual members of the
panel (excepting any neutral member, who may play the role of expert, advisor on substantive
law, etc.).

One might ask why the parties themselves do not facilitate the settlement directly in a mini-trial.
The answer is two-fold. First, parties involved in a controversy tend to approach and/or perceive
the matter subjectively rather than objectively. Parties also tend to inject emotion or bias into
their negotiations and will seldom compromise unless they have been introduced to damaging
information that tends to diminish their claim or defense. Therefore, officials who are one step
removed from the controversy, even if they serve as advocates for their respective parties, tend to
approach the dispute more objectively. Secondly, the officials at a mini-trial tend to be well-
seasoned and experienced in similar matters. For example, they may be representatives of the
insurance carrier for the party, or top-level management of a business that is party to a dispute or
they may be privately-retained consultants with technical expertise in the subject matter. For
these reasons, they may be better equipped to dissect and sort out opposing evidence and
arguments.

Mini-trials also differ from another ADR technique, the “summary trial” or “summary jury trial.”
Both mini-trials and summary jury trials involve the presentation of each side’s case, usually
without live testimony, but with opening and closing statements and an outline of evidence they
intend to produce at trial. However, summary trials are actually presented before mock juries,
who issue advisory “verdicts.” Following a jury determination, the parties and their attorneys
will attempt settlement.

Finally, a mini-trial differs from other forms of ADR in that it is usually conducted after
formal litigation has already been undertaken. Parties to a lawsuit generally stipulate to “stay”
pending litigation (put a hold on further advancement of the litigation) until the mini-trial is
concluded. Thus, mini-trial does not, in and of itself, represent an alternative forum for the
resolution of a dispute (such as arbitration), but rather it represents a pre-trial alternate attempt
to settle the matter before lengthy trial begins. The outcome of the mini-trial is generally
confidential and advisory only, and the parties may proceed to trial if settlement negotiations fail

CONSUMER CLAIM TRIBUNAL


(Consumer Protection Act 1999)
 specialised court to determine disputes between consumers and traders. The Tribunal for
Consumer Claims is an independent body with the primary function of hearing and
determining claims lodged by consumers under the Consumer Protection Act 1999 subject
to the provisions of the Act

 (Section 96(1) of the Consumer Protection Act 1999):


(a) the Chairman of the Tribunal;
(b) the Deputy Chairman of the Tribunal; or
(c) any member of the Tribunal selected by the Chairman.

PROCEDURE

1) must have cause of action to make claim

2) (Section 98 of the Consumer Protection Act 1999)


-make sure claim doesn’t exceed RM10K
3) (Section 97 of Consumer Protection Act 1999)
-must file the claim in the Tribunal to commence the proceedings, by filling up a claim form
which is known as Form 1

4) (Section 99(3) of Consumer Protection Act 1999)


-make sure it doesn’t fall under limitation of jurisdiction of the tribunal
a) for the recovery of land or any estate or interest in land
b) the entitlement of any person under a will or settlement
c) goodwill
d) any chose in action ﴾ie an action which will only take place in the future﴿
e) any trade secret or intellectual property right
f) any personal injury or death
g) a claim if it is a subject of court proceedings

5) (Section 106 of Consumer Protection Act 1999)


-after filing Form 1, a consumer needs to serve the claim to the trader (date,place of
negotiation)

6) (Section 107(1) of Consumer Protection Act 1999)


-proceed with negotiation for settlement. According to, the tribunal shall assess whether it is
appropriate in all circumstances for the tribunal to assist parties to negotiate an agreed
settlement in relation to the claim

7) (Section 107(2) of Consumer Protection Act 1999)


-In making the assessment, the tribunal shall have regard to any factors that are likely to
impair the ability of either or both parties to negotiate an agreed settlement

8) In this stage, the trader can contact the consumer to discuss the claim for purpose of
explaining the dispute or to discuss on how to settle it. If the parties reach an agreed
settlement, the tribunal shall approve and record the settlement and the settlement shall take
effect as it is an award of the tribunal (Section 107(3) of Consumer Protection Act 1999)

9) (Section 107(4) of Consumer Protection Act 1999)


-However, if it appears to the tribunal that it would not be appropriate for it to assist the
parties to negotiate an agreed settlement or where the parties are unable to reach an agreed
settlement in relation to the claim, the tribunal shall proceed to determine dispute

10) No lawyers are allowed to represent parties at the hearing. According to Section 109 of
Consumer Protection Act 1999, the proceeding is open to the public.
11) (Section 112 of Consumer Protection Act)
- the tribunal shall make its award without delay and where practicable within 60 days from
the first hearing before the tribunal commences.An award of the tribunal may contain one or
more of the following:
(a) That a party to the proceeding pay money to any other party;
(b) That the goods be supplied or resupplied in accordance with this Act or the
contract to which the consumer is a party;
(c) The goods supplied or resupplied to the consumer be replaced or repaired;

(d) That the price or other consideration paid by the consumer or any other
person be refunded to the consumer or that person;
(e) That a party comply with the guarantee
(f) That money be awarded to compensate for any loses or damage
suffered by the claimant;
(g) That the contract be varied or set aside
(h) That costs to or against any party be paid
(i) That interest be paid on any sum or monetary award at rate not
exceeding eight percent per annum, unless it has otherwise be agreed
between the parties.
(j) That the claim is dismissed.
12) (Section 116 of Consumer Protection Act 1999)
- every agreed settlement may be recorded by the Tribunal and every award made by the
Tribunal shall be final and binding on all parties to the proceeding. It is deem to be an order
from the Magistrate Court and can be enforced accordingly by any party to the proceeding.

13) Next, the secretary of tribunal shall send a copy of the award made by the Tribunal to the
Magistrate Court and it will be recorded.

14) (Section 117 of Consumer Protection Act 1999)


-The failure to do so within 14 days may result to criminal penalty,a fine not exceeding RM
5,000 or imprisonment for a term not exceeding two years or both. In the case of
continuing an offence, the offender will be liable to a fine not exceeding RM 1,000 for each
day or a part of a day which offence continues after conviction.

15) (Section 120 of Consumer Protection Act 1999)


-at the conclusion of the proceeding, the Tribunal shall order any document, record, material
or other property produced during the proceedings be delivered to the rightful owner or be
disposed in such manner as it thinks fit.

16) If no person has taken delivery of those documents and materials within six months, the
ownership of the documents should be deemed to have passed to and become vested in the
Government.
Tribunals

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