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.
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