75 LAWYER MONTHLY ADR AWARDS 2024 Arbitration Lawyer of the Year MALAYSIA unconscionability, pending the disposal of the pending arbitration under Section 11(1) of the Arbitration Act 2005. The Court of Appeal held that the jurisdiction of the High Court under Section 11(1) of the Arbitration Act 2005 is confined only to the parties to the arbitration agreement and the pending arbitration and/or to claims by the parties thereto, as opposed to third party claims by the guarantor banks of the performance bond. As the arbitration agreement was only between the Employer and the Contractor, the Court of Appeal found that any arbitration award would be futile as against the guarantor banks as it would not bind the guarantor banks, being non-parties to the arbitration. It is therefore imperative for stakeholders in the construction industry to appreciate that there are limitations on the right of a litigant to invoke Section 11(1) of the Arbitration Act 2005 where a performance bond has been assigned to a third party. What role does cultural context play in shaping ADR practices in Malaysia, and how does your firm address these nuances? And what skills do you believe are essential to being a successful mediator? Cultural Context in Shaping ADR Practices in Malaysia As mentioned above, Malaysia is indeed a multicultural society, comprising ethnic Malays, Chinese, Indians, and indigenous group. Different cultural norms and values shape how disputes are approached and resolved. In Malaysia, for instance, the traditional community-based dispute resolution methods, such as ‘adat’ (customary law) and the involvement of community leaders, have historically played a significant role, particularly in rural areas. Addressing Cultural Nuances in ADR Practices Given Malaysia’s multicultural context, addressing cultural nuances is crucial for effective ADR. Law firms and mediation centres in Malaysia are increasingly aware of the need to align their practices with the cultural expectations and values of their clients. For instance, understanding the importance of community, religion, and tradition in the lives of Malaysians can significantly impact the approach to mediation and negotiation. Our firm prides itself on maintaining a diverse team of professionals from various ethnic and cultural backgrounds, allowing us to effectively align with the cultural contexts of the parties involved. In promoting cultural accommodation, we ensure that the ADR process respects and upholds the values and beliefs of all participants. The essential skill to become a successful mediator is to understand, respect, and adapt to different cultural contexts and practices in Malaysia and maintain a neutral stance thus ensuring that all parties perceive the mediator as unbiased and fair. Q “Our firm prides itself on maintaining a diverse team of professionals from various ethnic and cultural backgrounds, allowing us to effectively align with the cultural contexts of the parties involved.”
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