Feb-18-2014

Contents
1. 2. 3. 4.

ADR LLE 4013

Introduction

5.

Learning outcomes Concept of ADR Origin of ADR Definition of ADR Advantages of ADR

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Learning outcomes
At the end of the session, students are able to : 1. Understand the concept of ADR 2. Understand the origin of ADR 3. Explain the definition of ADR 4. Explain advantages of ADR

Concept of ADR
What is ADR?
Acronym for Alternative Dispute Resolution

Main ideas:
Resolution Disputes Alternative to what?

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Origin of ADR
From the west? No Traceable from history of most parts of the world, but in informal forms
Asia Pacific region, informal conflict resolution practices involving intermediaries have been practised. Though not in formal form like we know today, some practices are akin to arbitration and some are to mediation.
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Origin of ADR (cont)

The role of third party / intermediary is important.
Someone having position in society / elderly people

E.g. 1. Penghulu / Imam / Chieftains (Msia); 2. Tribal chief (Arabs); 3. Panchaayat / Qadhi / Imarat Sharih (India); 4. Confucius principle of harmonious cosmology makes mediation as mainstream not alternative. Types problems

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Definition of ADR
Any of a variety of techniques for resolving civil disputes without the need for conventional litigation. (E.A. Martin) Ways to resolve legal problem without a court decision. (D. Oran) Other definitions

Advantages of ADR
1. 2. 3.

4.

5. 6.

may resolve problems / disputes may be awarded compensation the procedure is less formal than going to court. Eg not bound by rigid procedures in Rules of Courts 2013/ Evidence Act 1950 in some schemes, the decision may be binding on a party (eg. the trader) but not on another (the buyer), leaving the latter free to pursue through court if he so wishes. may cost less than going to court the procedure is confidential.
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Advantages of ADR
Flexibility in the use of chosen language 8. Representation by foreign lawyer Zublin Muhibbah Joint Venture v Government of Malaysia [199] 3 MLJ 125 9. Resolution of dispute is faster than going to court 10. Win-win resolution of disputes. 11. Better compliance by parties with the agreed settlement.
7.
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Disadvantages of ADR
Any disadvantage(s)?

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Confidentiality of ADR process

2 views:
1.

Confidentiality of ADR process

The UK position has persuasive effect on the Malaysian courts. Oxford Shipping Co Ltd v Nippon Yusen Kaisha, The Eastern Saga [1984] 3 All ER 835
it was held that the concept of private arbitration derives simply from the fact that the parties have agreed to submit to arbitration particular disputes arising from them and only between them. It is implicit in this that strangers shall be excluded from the hearings and the conduct of the arbitration...
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The duty of confidentiality arises by implication (the UK & France)

2.

Australian (Essos case), the US, and Sweden: Such duty cannot be implied but must be expressly agreed by the parties in their arbitration agreement. Malaysia is yet to have a case on this point. But it may not differ from that of the UK and France.
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Conclusion
ADR has rooted in almost every community in the world, albeit not in the formal form ADR has more advantages compared to litigation Confidentiality of ADR in Malaysia is submitted to be similar to that of the UK position.

Further readings:
Martin, Elizabeth A. (ed), A Dictionary of Law (4th edn, Oxford University Press 1997) Oran, Daniel, Orans Dictionary of Law (3rd. Thomson Learning 2000) Chong, J, Confidentiality In Arbitration: Fundamental Virtue Or Mere Illusion? KLRCA (http://klrca.org.my/articles/confidentiality-arbitrationfundamental-virtue-mere-illusion/) Rashid, S.K.S. & Idid, S.A., (ed.s), Mediation and Arbitration in Asia-Pacific (IIUM Press 2009)
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Tutorials:
1. 2. 3. 4. 5.

CONTENTS FOR 2ND TOPIC

1. 2.

What is ADR? ADR is the creation of the West. Comment. Explain advantages of ADR. Does ADR have disadvantages? Explain. Explain to what extent the element of confidentiality applies to ADR in Malaysia.

3.

Introduction Classification (meaning, features, advantages) a. Negotiation b. Mediation c. Conciliation d. Adjudication e. Mini-trial f. Rent-a-judge g. Arbitration h. Hybrid (Med-Arb, Arb-Med) Conclusion

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