Monday, 29 March 2010

[Malaysian Bar:2705] Press Release : Court of Appeal’s decision is regressive

---------- Forwarded message ----------
From: Bar Council <council@malaysianbar.org.my>
Date: 29 March 2010 14:47
Subject: [Malaysian Bar:2705] Press Release : Court of Appeal's decision is regressive
To: malaysianbar@googlegroups.com



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Malaysian Bar Council
____________________________________
 
No. 13, 15 & 17, Leboh Pasar Besar, 50050 Kuala Lumpur, Malaysia
Tel: 03-2031 3003 (Hunting Line) Fax: 03-2034 2825, 2026 1313, 2072 5818
 

Press Release

Court of Appeal's decision is regressive

The Malaysian Bar is disappointed with the Court of Appeal's ruling last week in the case involving former Internal Security Act (ISA) detainee Abdul Malek Hussein.  The decision, which overturns the High Court's earlier RM 2.5 million award to Abdul Malek Hussein for wrongful arrest and detention, is regressive, and disquieting.
 
We are surprised that the Court of Appeal appeared to overturn findings of fact made by the trial judge, who saw the witnesses and heard their live testimony.  Furthermore, the order of costs of RM50,000, especially against a victim of the ISA, is exorbitant, and punitive in nature.

The Judiciary serves as the last bastion of protection against any abuse of power, particularly by those who wield authority, such as law enforcement personnel.  It must operate as a check-and-balance mechanism.  By allowing the appeal, the Court of Appeal has failed in this role.  The judgment is inimical to the safeguarding of the rights of individuals against unlawful arrest, detention and torture.

The Court of Appeal's arguments reinforce the potential for grave abuse of the ISA's already draconian and repressive features.  Its standard for the burden of proof regarding the occurrence of torture is unfairly stringent and will, in practice, almost never permit allegations of torture to be substantiated, given that the victims are already in conditions of strict detention and are generally denied access to legal counsel and to all outsiders during the initial 60-day period in custody.

We denounce the detention of persons without trial under any circumstances, as it is an unjustified infringement of universal principles of human rights, and a violation of the Rule of Law and the principles of a democratic Government.  Among other reasons, detention without trial violates a person's right to be presumed innocent until proven guilty and his/her right to a fair and public trial where he/she may be defended.

We urge the Judiciary to exercise its function of providing the final recourse when rights are violated, and to provide redress against acts of impunity.  We look to the Federal Court to do what is just, and right.

Ragunath Kesavan
President
Malaysian Bar

29 March 2010


[Malaysian Bar:2704] Advertisement: CIArb Pathway to Fellowship Course

---------- Forwarded message ----------
From: Bar Council <council@malaysianbar.org.my>
Date: 29 March 2010 11:35
Subject: [Malaysian Bar:2704] Advertisement: CIArb Pathway to Fellowship Course
To: malaysianbar@googlegroups.com


The Chartered Institute of Arbitrators (Malaysia Branch) will be conducting the Pathway to Fellowship course on 19 and 20 June 2010.  The information on the course follows below, and the Registration Form is attached.

Don't miss your opportunity to become a CIArb Fellow with this Accelerated Route to Fellowship course.

If you have passed Module 1 Law of Obligations and Civil Evidence or have a recognised equivalent law qualification and have some experience in arbitration, the two-day Accelerated Route programme provides a fast route to Fellowship, the gold standard qualification in arbitration and ADR. 

Following successful completion of the programme, you will be required to complete Module 4 – Award Writing and undertake a Peer Interview to become a CIArb Fellow. 

For any further enquiries, please call Joann at 03-6203 5457 ( The Chartered Institute of Arbitrators (Malaysia Branch) Secretariat).


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What is the aim of the module?
To provide a fast-track route to Fellowship through the domestic arbitration pathway. The Accelerated Route to Fellowship has been designed for busy experienced, legally qualified professionals with substantial knowledge and experience of domestic arbitration. The aim of the programme is to assess the range of skills needed in order to perform competently as an arbitrator.

Candidates must evaluate the programme themselves as to their personal suitability to undertake it. The programme covers the law of civil and commercial arbitration. It is therefore valuable for anyone wishing to be conversant with the law governing the arbitral process generally, whether as a party, advocate, witness, judge or potential arbitrator.
 
What are the learning outcomes?
On successful completion of this course , candidates should be able to:
• Describe and explain the principles and specific legal requirements in a domestic commercial
arbitration, including: the range and limitations of matters that may legally be arbitrated; the
significance, rights and responsibilities of the different performers in an arbitration; the peculiar
contractual nature of an arbitral appointment; the range and limitations of an arbitrator's powers and
jurisdiction; the methods of initiating and processing an arbitration; the relevance of Court regarding all
stages in an arbitration; and the requirements of an enforceable award.
• Appreciate, apply and balance the principles and legal requirements set out in the syllabus below in the
context of a domestic arbitration.
• Show a confident ability to refer to, use and express legal procedural principles, rules and arguments
relevant to the conduct of a domestic arbitration.
• Describe and explain in depth all the key elements of procedure involved in the domestic arbitral
process, including: drafting an arbitration agreement; detailing procedure; making submissions and
interlocutory applications; making interlocutory decisions; presenting and receiving evidence; and
everything usually required of all the performers in the process except writing a Final Award.
• Demonstrate practical skill in controlling a domestic arbitration, communicating effectively with
parties, providing justice clearly and fairly, and applying appropriate rules and procedures in a
reasoned manner.
What is covered within the syllabus?
• Law of Arbitration
o Fundamental principles of the arbitration process
o The relevant arbitration code(s)
o The arbitration agreement
o Initiation of a domestic arbitration
o Nomination & appointment of an arbitrator
o An arbitrator's jurisdiction & powers
o Deciding and Setting the Procedure
o Interlocutory procedures, pleading & applications
o Oral hearings & Procedure
o Cost & Interest claims
o Award types and requirements
o Role of the Court
• Arbitration Practice & Procedure
o Writing an arbitration Agreement
o Schedules of Fees & Expenses
o Drafting in domestic arbitrations generally
o Interlocutory matters, including applications
o Detailing the procedure
o Submissions, Pleading and Disclosure
o Oral and physical evidence
o Measures for Protection
o Reasonable costs
o Offers to settle
o Main stages in a domestic arbitration
o Defining and dealing with issues in dispute
• Dealing with arguments and claims

How is the course delivered?
The course is delivered over a period of two days, with a combination of lectures, assessment workshops and written exercises to assess a candidate's knowledge of domestic arbitration and ability to deal with practical and procedural situations and drafting. The course will be conducted on 19th and 20th of June 2010 when candidates will be required to attend the face to face workshops.
 
How will I be assessed?
Assessment of this programme is split into two components:
• Assessment 1 – An interactive 2-day assessment series of workshops, where situations will be
presented to candidates in groups for their consideration as to what to do in such circumstances.
Candidates are assessed in terms of their knowledge, judgment and interactive/self-presentation skills
and ability to draft specific documents related to the situations. Assessment of this element is on a pass
or fail basis. Candidates must pass all the workshop sessions.
• Assessment 2 – Written exercises before and during the 2-day workshops:
o One (arbitration law) to be submitted before the assessment Workshops (10%);
o One (arbitration law) during the workshops (20%);
o Two during the Workshops (10% each);
o An overnight exercise (30%); and
o A final exercise (20%).
The pass mark for these written exercises is 55% overall and for each of the arbitration law and arbitration practice, procedure & drafting.
 
Results are dispatched to candidates normally eight to twelve weeks from date of the conclusion of the assignment or examination.
 
What are the entry requirements?
In order to be registered onto the Accelerated Route to Fellowship – Domestic Arbitration, candidates must:
• Have successfully completed and passed Module 1 Law of Obligations and Civil Evidence, or a
recognized equivalent qualification such as a Law qualification.
• Have substantial knowledge of domestic arbitration (unassessed) – Arbitration Act 2005.
• Evaluate the programme themselves as to their personal suitability to undertake it, appreciating that the assessment unit is intensive and that they will be assessed throughout the programme against standard benchmarks.
What is the course fee and what does it include?
The course fee is RM4200.00 net per candidate (for Non Members) and RM4000.00 net (for CIArb Members only) per candidate. The fee includes registration on the course, the first attempt at the assessments, study materials, lunch and refreshments throughout the day for both days. Candidates are only deemed to be registered for the course upon receipt of full payment by the organiser.
 
What happens when I register for the course?
Upon successful registration, candidates will receive confirmation they are booked for the course. Joining instructions and course materials will be sent to candidates approximately 2 weeks before the course start date.
 
The designated workbooks for the course are 'Module 2 Law of Arbitration, Donald Valentine, 2006,: and 'Module 3 PRACTICE, Procedure, Drafting and Deciding, William McLaughlin, 2005.'
 
It is recommended that candidates read the relevant arbitration code(s), Act(s) and other legislative provisions, major case decisions (where applicable). Candidates are recommended to refer to commentary on the Arbitration Act 2005 by W.S.W Davidson and Sundra Rajoo.
 
Candidates may also find it useful to refer to the following to supplement their learning;
• Bernstein's Handbook of Arbitration and Dispute Resolution Practice by John Tackaberry and Arthur
Marriot (4th edition 2003).
• Russell on Arbitration (23rd Edition 2007)
• Mustill & Boyd, Commercial Arbitration (3rd Edition 2008)
• Dr Mark Cato, Arbitration Practice and Procedure, Interlocutory & Hearing Problem (3rd Edition 2002)
What is CIArb's Policy on 'cancellation of courses'?
CIArb reserves the right to cancel or change the date, venue or content of programmes and the names of
speakers, lecturers and tutors. Candidates will be provided with adequate notice of any changes. If the Institute
has to cancel a course, candidates will be provided with a full refund or the opportunity to transfer their
registration to the next course.
 
Should a candidate wish to cancel their registration of a course, notification must be received in writing to
ciarbmb@gmail.com. Cancellation charges apply.
 
What is my next step when I complete the course?
On successful completion of this course, candidates:
• Will have an opportunity to gain a prestigious qualification as Fellow of the Chartered Institute of
Arbitrators, UK
• May progress onto Module 4 of the arbitration pathway.

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