Ingenieur Vol 71 ingenieur July 2017 | Page 81

of time and cost. In other words, we need an arbitral legal framework which provides a clear guide on the proceedings for both the arbitrators and the parties or their counsel to follow, aimed at reducing time and cost in arbitration. In this respect, we should perhaps consider having a legal framework which provides for certain mandatory rules, amongst others: a. Fixed timelines for submission of pleadings, documents, factual witness statements, expert reports, and final submissions. Variation of any such fixed timeline can only be made with the permission of the arbitrator, upon an application by either or both parties; b. Expressly conferring discretion to arbitrator to direct the order of proceedings, bifurcate proceedings, exclude cumulative or irrelevant testimony or other evidence and direct parties to focus on their presentations of issues the decisions of which could dispose of all or part of the case; c. That it is mandatory for parties to agree on issues for determination after the close of submission of case/defence by the parties, but before the commencement of hearing; d. Fixed timeline for arbitrator to deliver his decision, with corresponding penalty of reduction of entitlement in arbitrator’s fees; e. That notwithstanding the arbitration agreement, disputes involving claim of less than a certain amount shall be referred to a sole arbitrator, unless otherwise agreed by the parties subsequent to the referral to arbitration. In addition, we should also consider implementing arbitration-annexed mediation as part of the management of the arbitration cases. One must not forget that one of the main attractions of court litigation is the success of their court-annexed mediation. Based on the statistics provided by our Chief Justice for the year 2013, there were 251 cases registered with the First Instance Courts in Johor Bahru, with 47.6% of the cases settled through court-annexed mediation; in Kuala Lumpur, 571 cases were registered, with 28.3% cases settled, and in Kuantan, 80 cases were registered, with 25% cases settled. The same success story is also seen in other jurisdictions in Asia. In New South Wales, Australia, in year 2013, there were a total of 671 cases filed, with 55% of cases settled through court-annexed mediation; in year 2014, 486 cases were filed, with 51% of cases settled. In Hong Kong, in year 2014, 632 cases were filed at First Instance Courts (excluding family cases and land tribunal matters), with 65% of cases either fully or partially settled. And at the District Court level, 397 cases were filed, with 65% of cases either fully or partially settled. In Singapore, statistics based on both civil and criminal cases registered, but excluding family cases – in year 2013, show that 7,292 cases were sent for mediation, with a 92% success rate; In year 2014, 6,420 cases were sent for mediation, with a 89% success rate. Finally, in Thailand, in year 2011, a total of 163,926 cases were filed, with 79% of cases settled through mediation. While in year 2012, a total of 180,607 cases were filed, with also 79% of cases settled through mediation. Seeing the success of cour t-annexed mediation, perhaps we should also move to implement our own arbitration-annexed mediation, with express power to be given to the arbitrator to direct parties to attempt mediation at any stage of the arbitral proceedings. The power of the arbitrator should include the power to forfeit a winning party its costs award if the losing party demonstrated that its opponent had ‘unreasonably’ been uncooperative or refused to mediate. Conclusion Some, particularly the purists in arbitration, may argue that these suggestions would destroy the notion of party autonomy, which forms a very important ingredient and pillar of success and popularity of arbitration, but I believe that in the current climate, if we are to continue to give more prominence to the notion of party autonomy than it should deserve, it will not be too long until we see the demise of arbitration in the hearts of the users. 79