Justice Datuk Dr Hamid Sultan Abu Backer, a judge of the Court of Appeal Malaysia, an adjunct professor in many universities locally and abroad and a renowned international jurist, introduced an innovative concept of dispute resolution to cater for the poor, needy and oppressed, called University cum Court Annexed Arbitration in 2017.
This has now turned the attention of the world towards it.
The most common authoritative systems of dispute resolution, currently in practice, are court system and arbitration system. Arbitration is available only if there is an agreement between the parties to submit their disputes to arbitration.
The advantages of the arbitration include that the parties will choose their arbitrator. He need not be a lawyer but may be a subject expert like an engineer or architect.
It is not uncommon for engineers and architects to sit as arbitrators in construction disputes. The rules in arbitration are not rigid and complex as those of court rules.
Parties having chosen their arbitrator and the rules, there is generally no appeal against an arbitration award. The arbitration award is enforceable in about 160 countries.
Comparatively, a court decision is only enforceable in that country and a very few countries with which the country has reciprocal enforcement agreement.
” The concept of University cum Court Annexed Arbitration introduced by Justice Hamid Sultan marries the court system and arbitration system. This concept makes available arbitration to the litigants before courts at an affordable cost. “
An arbitrator may adopt inquisitorial approach, meaning the arbitrator can make enquiries and play a role to arrive at just decision to the case before him.
Comparatively, the courts in Malaysia adopt an adversarial approach, meaning they merely hear the case as presented by the parties without taking an active part in the litigation process.
The adversarial system was left to us by the British, who themselves practice such a system.
The system may work well for advanced societies like England where the parties and lawyers will present their case with near perfection and hence it is not necessary for a judge to play an active role.
However, that is not actually true for societies like ours. The practice of an adversarial system in societies like ours had only led to injustice such as a meritorious case being turned down on technicalities.
The English legal system is rooted in common law and it is called so because law is “common” to them and is part of life for the “common” man. They can survive without a written constitution again because the law including those relating to administration of the nation is common to them.
Again, this is not so far us. That explains why an inquisitorial system will work better for us.
Given the benefits of arbitration, particularly one adopting inquisitorial system, the downside has been that it has not been for the poor, needy and oppressed.
Arbitration comes with high cost because a substantial fee will have to be paid to the arbitrator and possibly to the arbitration centre too.
Comparatively, court fees are nominal only as courts are funded by tax payers’ money. Apart from this, it is not available except in cases where there is a prior agreement between parties to submit to arbitration.
In many instances, a prior agreement would not be feasible, such as when a case arises from a road accident or defamation.
” One of the common questions that is asked in challenge to the concept is whether parties will entrust professors and lecturers to adjudicate the parties’ dispute. ”
Now, the concept of University cum Court Annexed Arbitration introduced by Justice Hamid Sultan marries the court system and arbitration system. This concept makes available arbitration to the litigants before courts at an affordable cost.
Under the concept, the judge will offer to the parties before him to opt, by mutual agreement, out of court system and go far arbitration. This will be a court annexed arbitration, meaning the court will facilitate arbitration and court premises will be used for this free of cost to parties.
The arbitrators will be from a pool of certified university arbitrators, which will include lecturers, professors and alumni. The fee payable to them will be capped at minimum under a scale prescribed in the University cum Court Annexed Arbitration rules.
The parties may propose any judicial officer to sit as their arbitrator, subject to the officer’s agreement and Chief Justice’s consent. In such case, a nominal fee will be payable to the court.
The benefit that this concept will bring to the parties is to make available arbitration, and expertise associated with it, at an affordable cost. It will also save them costs as generally there is no appeal.
The benefit to the government and public will be that this will take away a substantial load off the court and hence the cost of administration of courts will substantially be slashed, saving millions of ringgit of public money currently spent on resolving private disputes.
The privilege that this concept will bring to the judiciary and judicial officers include creating a competence competition between them as only the more competent one will often be selected as an arbitrator by the parties or their lawyers and hence will raise the bar of the judiciary.
For the legal fraternity, it will reduce the stress level associated with court litigation in an adversarial system bound by a complex set of technical rules. For university professors and lecturers, the concept uniquely exposes them to the more practical side of the discipline that they teach and raises the bar of education.
In turn, this adds to their CV and ultimately this may take them to international commercial arbitration with high arbitrator’s fee.
One of the common questions that is asked in challenge to the concept is whether parties will entrust professors and lecturers to adjudicate the parties’ dispute.
In Malaysia, magistrates may be fresh law graduates from universities, unlike India or England where at least five years of experience in practice is needed for appointment as a magistrate.
If parties will trust a fresh law graduate to adjudicate their disputes, will they not trust a professor of trade mark law to decide a brand dispute or will they not trust a professor of dental studies to decide a case arising out of an alleged negligence in dental service, saving a lot of time and cost?
The professor will be trained to arbitrate dispute. This is not something new. Conventionally trained arbitrators comprise a large pool of non-lawyers such as engineers and architects.
Justice Hamid Sultan had extensively surveyed eight public universities in Malaysia offering law, all of whom had welcomed the concept, endorsed it to be practical from their perspective and approved its model rules.
These rules were written by Justice Hamid Sultan with a prominent lawyer and arbitrator ArunKasi and Prof.Dr.Ashgar Ali. Justice Hamid Sultan also surveyed Singapore universities with overwhelming response.
The concept needs no legislative amendment for implementation as it fits within the current arbitration regime. All it needs is a practice direction and government support for implementation.
Since its inception in 2017, the concept has now earned recognition locally as well as internationally.
Inns of Court Malaysia has approved the concept for pilot implementation. Lincoln’s Inn Alumni of Malaysia has undertaken responsibility as the global promoter of the concept. Chartered Institute of Arbitrators, London, has recognised the concept and posted it at its website.
Justice Hamid Sultan has been invited worldwide to speak on the concept, and did so, with overwhelming response including from the UK.
Numerous jurists locally and abroad had supported the concept, including Tun Zaki Azmi (former CJ), Datuk Seri Gopal Sri Ram (retired Federal Court judge), Prof Datuk Dr Mohd Naim (Chief Justice of Shariah Court), Datuk Mah Weng Kwai (retired Court of Appeal judge), Justice Datuk Mary Lim (Court of Appeal judge), Prof Dr Engseng Ho (director, Middle East Institute, NUS) and Thayananthan Baskaran (chairman of Chartered Institute of Arbitrators, London – Malaysia branch).
It will not be a surprise if the concept, a key one in access to justice for the poor, needy and oppressed, brings Malaysia the first Nobel Prize for Peace, when implemented.
A model scheme book of the concept has been formulated and is available for free download at www.janablegal.com.
• Arun Kasi is an Advocate & Solicitor; Malaya Fellow of Chartered Institute of Arbitrators, London; secretary of University Arbitration sub-committee; Inns of Court Malaysia co-draftsman of University cum Court Annexed Arbitration Model Rules; author of two law books on contract and arbitration; and co-author of three other law books on civil procedure, evidence and conveyancing. – By: Arun Kasi
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
