The use of conciliation is at its infancy in Malaysia as with most countries in the South East Asia Region where the term conciliation simply implies a non-binding process where a neutral person attempts to facilitate and find an acceptable solution to a dispute between the parties. Although conciliation has been used in Malaysia for some time in the settlement of disputes in relation to family law and employment the concept of its use for the settlement of construction disputes is still considered foreign. The Industrial Relations Act 1967 and the Law Reform (Marriage and Divorce Act 1976 both refer to conciliation as recognised means to settle disputes.
Conciliation is being promoted by some quarters within Malaysia namely the Chartered Institute of Arbitrators, the Malaysian Institute of Arbitrators and the KLRCA who have published rules for conciliation. (more)
It has been reported in the press that the planned RM 7.1 Billion West Coast Expressway linking Taiping in the state of Perak to Banting is being reviewed by the Attorney General who has as yet not signed the deal off and is still reviewing the legal documents. The report states that the Attorney General is concerned that the highway concession is not in the public interest and he has informed the relevant government agencies of his concerns regarding the 224km proposed highway.
- A RM 2.2 billion soft loan to the concession
- Government subsidising loans to the concession
- Government picking up the land acquisition costs said to be RM 1 Billion
- The granting of a 60-year concession period
- The estimated construction cost escalating by RM 4 billion.
Malaysian Construction and Contract Law invites you to read the following articles in respect of Arbitration in Malaysia
Many consider that the main advantage of arbitration over litigation after perhaps the possible cost savings and the ability to have appointed arbitrators which possess a greater knowledge in the field of construction to be that arbitration proceedings offer privacy and are confidential in their process. Privacy means that the proceedings are not open to […]
The Arbitration Act 2005 has repealed the Arbitration Act 1952 together with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985. However it as demonstrated in the following there were still challenges facing a party seeking to enforce a foreign arbitral award under the Foreign Arbitral Awards Convention Act in Malaysia […]
At the moment there are, two Arbitration Acts being used in Malaysia, being the Arbitration Act 1952 which is based on the English Arbitration Act of 1889 together with the 2005 Arbitration Act which is largely based on the Model Law and the New Zealand Arbitration Act of 1969. The 1952 Act applies to arbitrations […]
It was reported in the Star Newspaper on Tuesday 21st February 2012 that lawyers V.K. Lingam & Co did on the 13th February 2012 file an application seeking an order to re-hear two appeals by a new panel of Federal Court judges in the case involving KJCF claiming that the judgment contained fifty paragraphs which were plagiarised form an earlier judgment. A full report is available to read at the newspapers link below:
We have not seen the judgment in question or the earlier judgment on which it has been claimed the judge plagiarised his judgment from, however the story does raise some interesting questions. It may be that the Judge leading the panel did reproduced some of the earlier judgement after finding that he concurred with it, but it appears that by doing so he may have omitted to consider the written submissions submitted in July 2011 according to the news article. In doing so the lawyer is putting forward the argument that ‘the minds of the judges were closed to a fair and impartial consideration of the applicants’ case and demonstrates no reasoning process by the Bench.’
In the event that it is demonstrated that the Judgment is indeed an amended version of the earlier judgment and fails to take account of any new evidence or submissions it is clearly wrong and risks seriously weaken the public’s perception of the Judicial system.
What Constitutes a Dispute or Difference under the Contract?
Commonly standard forms of contract state that if there is a dispute or difference which arises under or out of the contract that either party may seek to have such dispute or difference may be resolved eventually by Arbitration in accordance with the dispute resolution clause as contained within the standard form.
It is of the greatest importance that an identifiable dispute has arisen before it can be referred to arbitration or otherwise the arbitrator will not have the jurisdiction to deal with it. It might be thought that the existence or otherwise of a dispute would be fairly obvious, but questions……. more