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TRIBUNAL &

OTHER
PROCESSES
YAP CHIA JUN LEB 130105
LIEW YEN FERN LEB 140052
PUNG JIE YEE LEB 140098
WONG HONG YI LEB 140126
OUTLINE OF PRESENTATION
Focus: Consumer Claims
1. TRIBUNAL

a. Tribunal for Consumer Claim

b. Tribunal for Homebuyers Claims

2. OTHER PROCESSES

a. Mix (Hybrid cases)

i. Med-Arb

ii. Ombudsman

b. Citizen Advice Bureau (Legal Aid Clinic)


Source from: https://ttpm.kpdnkk.gov.my/portal/index.php/en/

TRIBUNAL FOR CONSUMER


CLAIMS
Introduction
Independent judicial body established under the Consumer Protection Act 1999 (CPA)
Simple, cheap and fast alternative channel for consumers to claim losses
Goods purchased or services obtained from traders or service providers.
No party shall be represented by an advocate/solicitor during hearing.
Proceeding of the tribunal is open to the public.
Awards will be granted within 60 days from the first day of hearing.
Every award made shall be final and binding on all parties and deemed to be an order of the
Magistrates Court (Section 116 CPA)
Jurisdiction
The tribunal has jurisdiction in respect of any claim not more than RM 25,000.00 filed within 3 years
of the dispute except the following claims :

claims arising from personal injury or death;


claims for the recovery of land, or any estate or interest in land;
claims in which the title to any land, or any estate or interest in land, or any franchise, is in
question;
in which there is a dispute concerning :-
the entitlement of any person under a will or settlement or on any intestacy;
goodwill;
any chose in action;
any trade secret or other intellectual property;
where any other tribunal has been established under any other written law to hear and
determine claims that are under the jurisdiction of that other tribunal.
Process
FILING OF FORM 1 SERVING OF FORM 1 TO TRADER ACTION BY TRADER

To initiate claim and a date of Notify trader that he is Contact claimant and discuss
hearing will be set required to attend a hearing of the claim to explain dispute
the claim on the date fixed by and offer settlement. If it is a
RM5 will be charged for a the tribunal. success a notice of
filling fee discontinuance can be filed at
the tribunal office and parties
need not attend the hearing of
the claim

If settlement cant be reached


file Form 2 and serve on
Claimant
DURING HEARING IN THE AWARD MAKING
PREPARATION FOR HEARING
TRIBUNAL BY TRIBUNAL

Gather all relevant documents President will assist parties to 2 Situations


regarding the claim and get present their respective case Award based on
ready any witnesses to attend and at all times, assist parties settlement reached
the hearing. to reach an agreed before hearing
settlement. No prior settlement -
award by President
Where necessary, he will based on facts and law
guide the parties as to the law
applicable. parties are also
encouraged to present all
facts of their case.
Failure to comply with award
If one of the parties fails to comply with the award after 14 days from the date of the award, the
party is considered as committing an offence and liable on conviction to:

1. Fine not exceeding RM 5,000 or imprisonment for a term not exceeding two years or both;
2. If the offence continued, the offender shall be as addition to the penalties above, a fine not
exceeding RM 1,000 for each day or half of the day during which the offence continues after
conviction.
TRIBUNAL FOR
HOMEBUYERS CLAIMS
Introduction
Established after amendments to the Housing Development (Control & Licensing) Act, 1966 on
1 December 2002
Functions to resolve house buyers dispute with their housing developers (eg. defect in
property bought)
A form of Alternative Dispute Resolution (ADR) and has all the powers of a civil court
Provides a cheaper and faster avenue for redress and justice compared to a costly and lengthy
court process
Only handles disputes arising from Sale and Purchase Agreements (SPA) signed between a
developer and a purchaser, no matter whether the purchaser made the deal directly with the
developer, or whether the purchaser made it with the first buyer who had bought it from the
developer.
Award will be made within 60 days from the first day of the hearing
Similar procedure to those of the Consumer Claims Tribunal (simple and to preserve uniformity
of laws)
Who is a homebuyer?
A purchaser who has bought a property or has a dealing with a licensed housing developer
Includes a second purchaser who purchased the property under a sub-sale from the first
purchaser and does not include purchasers subsequent to this
Related Matters
REPRESENTATION BY LAWYER
Neither the plaintiff nor the defendant can be represented by a lawyer at a hearing except if the
Tribunals opinion is that the matter concerns complex legal issues. If one party is allowed legal
representation, the other party is similarly entitled.

AWARD
Only monetary award not exceeding RM50,000 for each claim

FAILURE TO COMPLY WITH AWARD


Penalties will be imposed
Deemed to have committed an offence and is liable to a fine of not more than RM10,000 or to
imprisonment for a term not exceeding two years or to both.
In the case of a continuing offence, in addition to the penalties, the offender is be liable to a
fine not exceeding RM1,000 for each day the offence continues after conviction.
Source from: http://www.utusan.com.my/berita/nasional/kuala-lumpur-12-julai-2016-pengerusi-tribunal-tuntutan-pengguna-1.354148
OTHER PROCESSES
HYBRID DISPUTE RESOLUTION PROCESSES
MED-ARB/ ARB-MED
OMBUDSMAN

CITIZENS ADVICE BUREAU (CAB)


HYBRID DISPUTE
RESOLUTION PROCESSES
Introduction
A hybrid dispute resolution process combines elements of two or more traditionally separate
processes into one.
Med-Arb
Arb-Med
Hybrid dispute resolution also includes:
Private judge
Non-Binding Evaluation
Neutral expert opinion
Early Neutral Evaluation
Summary jury trial
Mini trial
Settlement special master
Ombudsman
Judicial arbitration/ court-annexed ADR

And etc.
Med-Arb/Arb-Med

The term Med-Arb/Arb-Med comes from the combination of Med which stands
for Mediation and Arb for Arbitration.

Essentially, it refers to hybrid dispute resolution process in which the dispute


resolution practitioner plays multiple roles, i.e. arbitrator and mediator.
Arbitration
A mechanism for the settlement of disputes where the parties agree to be bound by the
decision of an arbitrator.

Resorted to when there is an arbitration clause in the agreement or when parties in


dispute mutually consent to resolve the dispute via arbitration.

Focuses on the parties legal rights.

In Malaysia: governed by Arbitration Act 2005.

S 36(1): Decision of arbitrator is final and binding.

Motivation to pursue arbitration:

1. Confidentiality

2. Cost effectiveness

3. Speedy resolution

4. Finality
Mediation
A facilitative process in which the disputing parties engage the assistance of an
impartial third party, the mediator, who helps them to try to arrive at an agreed
resolution of their dispute.
Resorted to when there is a mediation clause in the agreement or when parties in
dispute attempt to resolve the dispute via mediation.
Focuses on the parties interest.
Mediator does not make decision but only facilitate the negotiation: it is up to parties to
decide to come to settlement or not.
In Malaysia: governed by Mediation Act 2008.
S 14: Effect of Settlement Agreement:
(1) A settlement agreement shall be binding on the parties.
(2) If proceedings have been commenced in court, the settlement agreement may be
recorded before the court as a consent judgment or judgment of the court.
Motivation to pursue mediation:
1. Confidentiality
2. Cost effectiveness
3. Speedy resolution
Ultimately, the purpose of ADR is to achieve
the objective of just, cheap and quick

Therefore...

Parties to a dispute can structure a process to resolve their


dispute which involves the combination of arbitration and
mediation.
Arbitration can be resorted jointly or consecutively with
mediation to serve the parties common ends, i.e. to save
expenses, save time and produce a fair result.
This mixed process is either called Med-Arb or Arb-Med,
depending of the sequence of which comes first.
Mediation+Arbitration just, cheap and quick

How is that possible?


1. By having the same neutral party to conduct arbitration and mediation
jointly instead of separately, a lot of time and cost can be saved.
2. The chances of the dispute being resolved via settlement would be
higher (as compared to arbitration alone) as more settlement options
are being explored during the mediation phase.
3. The parties would also be more likely to settle (as compared to
mediation alone) out of fear that the award given during the arbitration
phase may result in the parties not getting what they want at all.
4. It would also certainly yield a final outcome, therefore there is no need
to drag the matter on to another session of arbitration or mediation
(unlike the case of mediation alone).
When to use Med-Arb and when to use Arb-Med?
Different considerations apply as to when to use either of these mixed processes.

E.g.
1. Med-Arb
In construction industry disputes, it may be better to settle the issue of liability by arbitration and then
mediate on the issue of the quantum of that liability.
This is because the adduction of evidence to prove quantum is known to be laborious and lengthy.
Besides, the normal arbitral process which involves examination-in-chief, cross-examination and re-
examination followed by oral or written submissions and final decision in the form of an award is not
economical and speedy in dealing with the issue of quantum of damages after liability has been
established.

1. Arb-Med
If an earlier held mediation does not result in a settlement agreement, the mediator may also assume
the role as an arbitrator.
The mediator-turned-arbitrator can then continue to adjudicate on the dispute and give a final
decision to the parties without further delay.

**The strength of one method is used to compliment the weakness of another. Ultimately, to
use which process is dependent on the circumstances.
Acceptance of Med-Arb/Arb-Med in Malaysia
Sebor (Sarawak) Marketing & Services Sdn Bhd v SA Shee (Sarawak) Sdn Bhd
[2000] 6 MLJ 1

Facts:
In this case, the applicant contracted with the respondent to supply goods and paint. Dispute
arose as to the amount owed by the respondent and one Wong was appointed to resolve the
dispute, being referred to both as arbitrator and mediator. During the course of the meetings
he urged the parties to compromise and to adopt a 'give-and-take' attitude. As settlement was
not reached, he then delivered an award. The applicant then sought to attack the award,
claiming that Wong had urged the parties to compromise, which amounted to misconduct.

Held:
Although the appointed person was referred to both as arbitrator and as mediator, this did not
mean that he could not arbitrate. He could arbitrate after mediation had failed. The fact of his
being a mediator did not nullify the existence of the agreement to submit to arbitration and his
appointment as the arbitrator.
Acceptance of Med-Arb/Arb-Med in Malaysia

Sebor (Sarawak) Marketing & Services Sdn Bhd v SA Shee


(Sarawak) Sdn Bhd [2000] 6 MLJ 1

Conclusion:
1. This is the first reported case of an arbitration conducted as a
'Med-Arb' arbitration, in which the arbitrator held the entire
hearings as mediator, and it was only when making the award
did he don the mantle of an arbitrator.

1. The court found that there is no problem as to the validity of an


individual acting in the role of both mediator and arbitrator,
therefore, Med-Arb (and arguably Arb-Med) has been formally
accepted in Malaysia.
Ombudsman
An independent person who's responsible for investigating and resolving disputes between
affected parties without having any vested interests.
Characteristics of Ombudsman:
Independence
Impartiality
Confidentiality
Informality

Malaysia:
Under Financial Services Act 2013 and Islamic Financial Services Act 2013:
" ' Financial ombudsman scheme' means a scheme for the resolution of disputes
between an eligible complainant and a financial service provider in respect of financial
services or products."
Ombudsman for Financial Services
Established and approved by Bank Negara Malaysia with effect from 1 October 2016.
Provides Malaysian consumers an avenue for effective resolution of complaints arising from
products and services by FSPs on a free-of-charge basis.
Confidentiality for parties involved is preserved and resolution is typically managed in a
prompt manner, i.e. within three to six months from the receipt of lodgement of a dispute.
Main conditions for eligibility:
Parties must not be legally represented;
Must have a previously-lodged complaint with the FSP (bank or otherwise) to reach
a mutual settlement;
Complaint must be lodged in writing to OFS within a certain time limit; and
May not lodge a report with the Tribunal for Consumer Claims in accordance with the
Financial Services Act 2013, Section 126 (5):
"Where a dispute has been referred to a financial ombudsman scheme by an eligible
complainant, the eligible complainant is not entitled to lodge a claim on such dispute
with the Tribunal for Consumer Claims..."
- Prevent multiple claims and avoid disparity between decision
Jurisdiction
A complaint or dispute involving:
a. financial services or products or Islamic financial services or product, developed, offered
or marketed by a Member, or by a Member for or on behalf of another person, other
than a complaint/dispute under paragraphs b. and c. (< RM250,000);
b. motor third party property damage insurance/takaful claims ( <RM10,000);
c. an unauthorized transaction through the use of a designated payment instruments or a
Islamic designated payment instruments or payment channel (<RM25,000); or
d. an unauthorized use of a cheque (< RM25,000).
OFS will not consider the following complaints/disputes against a Member:-

A complaint/ dispute:
beyond the maximum monetary limit specified in Schedule 2 of the Terms of
Reference of the OFS;
general pricing, product features, credit or underwriting decisions, or applications
to restructure or reschedule a loan or financing which are commercial decisions within
the discretion of a Member;
concerning the actuarial standards, tables and principles which a Member applies to
its long term insurance/takaful business for insurance or takaful claims, except
guaranteed payment which are explicitly mentioned in the terms and conditions of the
policy;
contract of employment between a Member and its officers and employees or
agency matters concerning a Member;
has been filed in a court or arbitration or referred to arbitration or has been decided by
a court or arbitrator;
A complaint/ dispute:
referred to OFS after more than six months from the date the Member has provided its
final decision;
time barred under the Limitation Act 1953 or Limitation Ordinance (Sabah) (Cap.72), or
Limitation Ordinance (Sarawak) (Cap.49);
previously decided by the OFS;
investment performance of a financial product except in relation to non-disclosure of
facts or misrepresentation;
capital market services and products offered or marketed by a Member;
more than one Eligible Complainant and has been referred to the OFS without the
consent of the other Eligible Complainant, and the OFS is of the view that it would
be inappropriate to deal with the complaint/dispute without that consent;
claims arising from a third party bodily injury or death; and
payment of the policy moneys under life policy and personal accident policy or
payment of takaful benefits under family takaful certificate and personal accident takaful
certificate.
Process
Once the complaint has been accepted by OFS,
1. A case manager will get in touch with you and encourage dialogues between you and the FSP
to identify and discuss the outstanding issues with the goal of reaching an amicable settlement.
2. If the circumstances necessitate it, the case manager will initiate an investigative process.
3. You may be requested to participate in mediation, conciliation or negotiation with the other
party.
4. If both parties are not able to settle the complaint amicably, the case manager will proceed
make an assessment within 30 days, by taking into account the parties documents, interviews
and/or submissions.
5. Recommendation will be made on how the dispute should be resolved.
6. Once both parties accept the recommendation, the terms of the settlement will then be put in
writing, namely a Settlement Agreement, and are to be carried out by both parties.
If either party does not agree with the recommendation, the complaint is further escalated to the
ombudsman for further judgement, during which you can expect the following:
a. The ombudsman may require additional information and/or documents from you.
b. You may be required to attend a hearing before the ombudsman or the matter is
decided on evidence and submission before the ombudsman.
c. The ombudsman will decide the matter based on the merits of the case.
d. Upon the ombudsman reaching a decision on the matter, you may choose to accept or
reject the ombudsmans adjudication; neither party can appeal against the decision
of the ombudsman.
e. You will have 30 days to accept the ombudsmans decision, and upon acceptance, the
decision will bind both parties (i.e. you and the FPS).
f. The ombudsman will issue an award (in writing) and the FSP must, within 14 days,
comply with granting the award to you.
CITIZEN ADVICE BUREAU
A network of 300+ independent charities throughout the United Kingdom. (England, North
Ireland, Scotland, Wales)
Free, confidential information and advice to assist people with money, legal, consumer and etc.
Double edge sword - (i) "to provide the advice people need for the problems they
face"

(ii)"to improve the policies and principles that affect people's lives"

Emphasize on 4 main principles - (i) Free Service

(ii) Confidentiality

(iii) Impartiality

(iv) Independence

Citizen Advice x Government - Supported not Controlled.


Does not necessarily involve both parties. Acts as a medium for legal advice and opinion before
parties proceed with other resolution.
Advice matters

WORK DEBT & MONEY

Debt solutions
Rights at work
Leaving a job Budgeting
Problems at work
Discrimination at work Mortgage problems
Health and safety at work
Young people
Rent arrears

Action your creditor can take

Borrowing money
Advice matters

FAMILY HOUSING

Renting privately
Living together, marriage and civil
partnership
Ending a relationship Finding a place to live
Death and wills
Gender violence
Mortgage problems
Children and young people
Looking after people
Education Renting a home

Repairs in rented housing


Advice matters

LAW & COURTS OTHER GENERAL MATTERS

Health
Brexit Immigration
Legal system Consumer
Discrimination etc.
Parking tickets
Civil rights
MALAYSIA - LEGAL AID
A provision of assistance to people who are unable to afford legal representation and access to the court
system.

The existence of legal aid is necessary in providing access to justice by ensuring equality before the law,
the right to counsel and the right to a fair trial to enable persons in need to have access to the
professional help they require.

Thus, legal aid is essential in guaranteeing equal access to justice for all.

3 main bodies- (i) National Legal Aid Foundation

(ii) Legal Aid Centre(Bar Council)

(iii) Legal Aid Department (Legal Affair Division, Prime Ministers


Department)
National Legal Aid Foundation Bar Council Legal Aid Legal Aid Department
(YBGK) (Prime Ministers Department)

Criteria Malaysian citizen Monthly income after Financial Resources not


Income per annum shall deduction of expenses exceeding RM 25,000 per
not exceed RM25,000 Single - RM650 annum
If exceed RM25,000 - Married - RM900
RM36,000, a fee of RM
300 will be charged

Service All criminal offences Criminal Syariah


except those punishable Syariah Civil
by death Family Criminal
Public Interest Litigation Family
Housing Minor (Offences under Child
Domestic Violence Act)
Migrant
Employment

Charge No charge if yearly income Advice - free of chage If yearly income is betwen
does not exceed RM For legal representation, RM25,000 - RM 30,000, a fee
25,000 minimum RM20 for of RM 300 will be charged
administrative fees
CONCLUSION
At the end of the day, there are many mediums and avenues for a claimant to obtain the
best out the product from the purchase they made.

It is understandable that all consumer and user would want some form of redress from
the faulty product and services

With all these alternatives of dispute resolutions, it is a much better choice compared to
initiating formal court proceedings because the latter will take up a lot of time, not
mentioning the cost.

While other commonwealth jurisdiction have applied all these avenues for their people,
Malaysia should also keep progress with the updates and maybe implement some of
the avenues as an another option to alternative dispute resolution.