KEY DIFFERENCES BETWEEN THE COURTROOM AND ARBITRATION
on 27.11.2021 via Zoom Webinar
Differences in expectations on counsel
and litigants
by Datuk Dr Prasad Sandosham
Abraham
 Judiciary won’t touch the award
decided by arbitrator unless if
there’s element of unfairness –
since arbitrator was contractually
chosen by the parties
 element of due process during
hearing is important
 in his view, counsel usually
emphasize on due process and
consequences of award on public
policy when challenging an award
The change in experience and shift
approach
by Y.A. Tuan Ong Chee Kwan
 1st key difference – the way
counsels dress and also how case
is being called
 hearing conducted only in court
rooms – but due to pandemic,
hearing is made online
 hearing conducted in court is mostly
public hearing
 amount for case load before the
Judge for determination and
disposal
 unlike arbitration, any inordinate
delay in court proceeding will give
bad impression to the public
 unlike arbitrator who has only 1 case
per day, a judge has to get familiar
with the cause papers and
submissions (of many cases) prior
to the day fixed for hearing
 in his view, judge will avoid technical
issues in substantive application –
eg: parties require for documents
makers to be called when the
contents are not in dispute (waste of
court’s time)
 arbitrator can be chosen and they
can choose which case, unlike a
judge – hence a litigant must study
the judge’s background and to
assist the judge when he has no
expertise in the field, litigant not to
mislead the court
 counsels should not approach the
judge during appeal hearing just like
how you bring the case at first
instance – when there’s already
testimony before the counsels, the
materials needed and also the
findings of learned judge
Difference in advocating your case
before a judge and before an arbitrator
by Shanti Mogan
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 KEY DIFFERENCES BETWEEN THE COURTROOM AND ARBITRATION
on 27.11.2021 via Zoom Webinar
 manner of delivering the submission
depends on which judge you’re
going to appear
 knowing your judge is a comfort you
will find in court – do not be a
prisoner to your script
 unlike court’s judge, it’s impossible
to get feedbacks regarding an
arbitrator – in domestic or
international arbitrator
 there’s no arbitral precedent, there’s
diversity, some are legally trained
 litigants need to be more open
minded when appearing before
arbitrator, you must have a vast
knowledge and not limited to
Malaysian law only
 judges construe matters within the
legal framework, but arbitrator is
more ready to accept justice and
fairness arguments – eg: in breach
of contract, arbitrator will see what
type of breach
 court require rigorous standard of
proof but in arbitrator, the evidential
rule is more relax
 different approach in court,
arbitrator usually won’t let the
parties to go home without a figure
even though there’s no proof of
documents
 procedural approach – CM at court
where court is very accommodating
and parties are expected to comply
without bringing new documents or
witnesses. In arbitration, where
parties will come and bring new
witnesses and documents at last
minute stage
 cross examining – evidence act
don’t apply in arbitration unless
parties agree, no such thing as Part
C as there’s only common agreed
bundle. However, evidence can still
be disallowed due to hearsay
 witness statement – in arbitration,
you file witness statement as well as
rebuttal witness statement
 cross examination – more focused
as issues already raised in the
rebuttal witness statement
 judges do not interfere too much
during cross examination. In
arbitration, intervention is allowed to
maneuver in order to satisfy the
doubt of the arbitration – but not to
suggest answers to the witness
 appointment process – can’t select
or pay your judge, can select and
pay the arbitrator
 the ability to select the arbitrator – to
real benefits, assure professional
attitude
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 KEY DIFFERENCES BETWEEN THE COURTROOM AND ARBITRATION
on 27.11.2021 via Zoom Webinar
 is the arbitrator advocating the claim
of the party who appoint him –
question usually asked and where
you usually don’t know – make effort
to convince the members of tribunal
Q&A
“Is there a specific set of rules of
evidence that Malaysian arbitrators or
AIAC adopt in arbitration proceedings
(since Evidence Act does not apply to
arbitration)?”
 Answer: IBA Rules – especially in
discovery and disclosure rules
(usually mentioned in a clause for
international arbitration)
“I have a question pertaining to the
abuse of contractual arbitral clauses. In
certain matters, Defendants tend to
deliberately invoke an arbitration clause
as a strategic move to buy time. A
recent situation that I heard of involved
a life-insurance policy, where the
insurance company insisted that the
Court proceedings be stayed and the
matter be referred to arbitration. The
family of the deceased was unable to
pay the arbitral fees and as a result, the
matter was stuck in limbo.
In such situations, do the Courts look at
the inherent unfairness of the arbitral
clause (e.g., the unfair bargaining
power) or would it be a straightforward
stay+referral under S. 10?
Additionally, would Courts be inclined
to set-aside the stay order that referred
the matter to arbitration if it is clear that
the Defendant/Respondent is simply
buying time?”
 Answer: Judge will give a stay but
with conditions eg: if arbitration
does not settle within specified of
time
“In Court – counsel submits based on
published precedents. Apart from their
inherent notion of justice/ fairness, are
arbitrators bound by precedents/
jurisprudence in their respective
country as well? What do arbitrators
rely on when deciding / making
awards? What is the extent of the
arbitrator’s reliance of precedents, if at
all?”
 Answer: in Malaysia, there’s no
such thing for arbitrator to be bound
by precedents. However, can rely
upon the judicial precedents.
“In the speakers' opinion, why should
parties go for Arbitration when the
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 KEY DIFFERENCES BETWEEN THE COURTROOM AND ARBITRATION
on 27.11.2021 via Zoom Webinar

Courts are as efficient and with much parties will argue which arbitrator,
lower cost.” usually AIAC will end up appointing
 Answer: unlike in court, lots of an arbitrator (unless if it’s 3 panel
merits in arbitration requires then you can propose 1 arbitrator).
expertise or arbitrator which familiar
in that particular field, parties are
more comfortable to go with
international tribunal, it’s no longer
cost concern but more to expertise

“What are the Panellists’ views on the

publication of arbitral awards (the same
way Court judgments are
published/reported), albeit in redacted
or limited form? Assuming disputants
are prepared to waive confidentiality
after delivery of the award, do the
Panellists believe this would, in any
way, aid future arbitrations and
arbitrators? Or would it lend no
assistance whatsoever?”
 Answer: Helps to promote
consistency of award, to promote
confidence in arbitrator’s ability in
adjudicating a case

“I would like the speakers to explain

how the arbitration process starts”
 Answer: LOD, Notice of Arbitration,
presumably AIAC arbitration,
registration fee, pre-arbitration
dispute process to be complied,