Trade and Investment Dispute Settlement Mechanism in MALAYSIA Hasnah Hashim Judge High Court of Kuala Lumpur Commercial Division Malaysia The primary objective of ASEAN: To promote regional peace and stability through abiding respect for the justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter. - The Bangkok Declaration 1
Dispute settlement is the central pillar of the multilateral trading system. Without a means of settling disputes, the rules-based system would be less effective because the rules could not be enforced. The WTO s procedure underscores the rule of law, and it makes the trading system more secure and predictable. The system is based on clearly-defined rules, with timetables for completing a case. WTO: Dispute Settlement Mechanism The Uruguay Round agreement - clearly defined stages in the procedure - the length of time a case should take to be settled - flexible deadlines set in various stages of the procedure - prompt settlement - procedures and the timetable to be followed in resolving disputes - time frame not more than one year 2
Dispute settlement mechanism in Malaysia Transformation of the Judiciary towards an effective dispute settlement mechanism : - E-Court System Case Management System (CMS) Queue Management System (QMS) Court Recording System (CRT) E-filling System (EFS) Case Management - Pretrial conference - Two weeks after the date of filing a suit, a Case Management date is fixed before Judicial Officer - Directions will be given eg. filing of pleadings/ affidavits,service of cause papers etc. - A Case Management date will be fixed before Judge for fixing of trial dates and for further directions. - To facilitate the Case Management, a Case Management System programme was specially designed for the Malaysian courts to key in and to extract data on cases, matters or applications filed in the Malaysian courts.(part of the E-courts system) 3
Queue Management System Queue Management System enables lawyers waiting for their cases or matters to be called for case management before the Registrars to key in their case number and their mobile number. When their case or matter is ready to be dealt with by the Registrar, he or she will receive an SMS requesting his or her attendance. In the meantime the lawyer concerned can attend to other matters in the vicinity of the court. Court Recording System records the entire proceedings in court in an audio-visual format. recorded by 4 to 5 cameras installed at strategic locations in the courtroom to focus on the person who is speaking. to assist lawyers in preparing their continued hearing or submission, the day s audio-visual recording is either burned into a disc or transferred into a pen drive and given to the lawyer requesting it. Judges are also relieved from having to write notes as everything is recorded. 4
E-filing System A one-stop portal for lawyers, judges, judicial officers and litigants to access to all documents related to cases filed ranging from registration of cases, filing of case documents, retrieval of service documents, searching of case files and information and case schedules. The E-filing portal will send notification of any case filing status to the lawyer s email immediately upon registration in the E-filing system. Lawyers are able to access the E-filing system at their own convenience from any part of Malaysia. New Commercial Courts (NCC) New Civil Courts (NCvC) Admiralty Court Intellectually Property Court Islamic Banking Construction Court Corruption Court Environmental Court Specialised Courts 5
NCC and NCvC - NCC: Commercial cases eg company matters, banking, insurance etc - NCvC: Civil cases eg defamation, negligence, land matters etc -must be completed 9 months from the date of filing Admiralty Court -The Admiralty Court was set up in 2010 to dispose admiralty related issues expeditiously. -Cases involving shipping, marine insurance, death or losses in marine activities, international trading and admiralty-related issues. - must be completed 9 months from the date of filing Intellectual Property court -set up to reduce the back log of IP cases and to eradicate IP infringement -cases to be completed within nine months Islamic Banking Court - set up to hear cases related to Islamic banking and finance - cases to be completed within nine months 6
Construction Court -set up on 13 th April 2013 -to hear construction related claims -timeline to complete : 9 months Environmental Court -a court dedicated to hear environmental offences to improve the administration of justice of such cases in the Sessions and magistrate s courts. -should be concluded within three months and six months in the Magistrate s and Sessions Courts respectively. 7
Corruption Court - Main objectives: to clear the backlog and to speed up the trial for corruption cases - Timeline to complete: 12 months Court-annexed mediation The court annexed mediation program is a free mediation program where judges and judicial officers act as mediators to help disputing parties in a litigation to find solution. It is a service provided by the Judiciary as an alternative to a trial. -an amicable dispute resolution for the litigants -free of charge -not mandatory, at the option of the Parties 8
SALAMAT 9