The Possibility of Using E-Arbitration in Malaysia

ARTICLE SUMMARY

Title: The Possibility of Using E-Arbitration in Malaysia

Published on: 19 April 2020

Prepared by: Nur Hasya Amni Binti Azizan

Retrieved from: http://jcreview.com/fulltext/197-1587974035.pdf?1588057519

This article addresses the possibility to adopt e-arbitration in Malaysia. In recent years, several countries such as South Korea and the United Kingdom have altered the traditional arbitration method which involves paper-based means of communication and data storage, to electronic arbitration or known as e-arbitration, parallel with the drastic advancement of the technologies. However, the current arbitration framework in Malaysia remains the same. It is still relying on the traditional method and this emphasises that Malaysian dispute resolution industry is lagging behind regarding the use of e-arbitration. Due to this reason, this article is written to seek the probability of using e-arbitration as a dispute mechanism in Malaysia by analysing the advantages, the disadvantages and the challenges.

Before the analysis begins, the writers first mention the existing terminologies on e-arbitration used among the scholars. Some scholars used the term online arbitration while others preferred to use cyber arbitration. The contradicting terminologies has led to various understanding on the definition of e-arbitration. Some scholars argued that e-arbitration is a combination of information and communication technology (ICT) and the arbitral proceedings in which the arbitral proceedings can be conducted wholly or partially in an online way. Other scholars also mentioned that e-arbitration is a method in which all processes and activities from the beginning until the end should be carried out through cyberspace such as e-mail, networks, chat groups or online conferences. This means the conduct of e-arbitration starting from the document known as notice to arbitrate from a claimant to its opponent, then the arbitration hearing and its award shall be held solely using electronic devices and the internet. All of these differences of opinions concerning the definition of e-arbitration indicates that the meaning of e-arbitration is still vague and uncertain.

Next, the writers highlight the advantages of using e-arbitration. The most appealing features of e-arbitration compared to the traditional method are time flexibility and instant accessibility. The fact that e-arbitration allows any submission of documents and arguments to be done from anywhere and grants the parties the freedom to access their case anytime shows that e-arbitration process is less complicated and more convenient compared to the traditional arbitration. Another feature of the use of e-arbitration are well discussed such as e-arbitration manages to reduce the cost, help disputers to avoid any conflict of rules as well as give the disputers the opportunity to select applicable law for the resolution process. Based on these advantages, the writers believe that the utilisation of e-arbitration in the Malaysian dispute resolution industry would help in resolving any arising dispute efficiently, rapidly and inexpensively.

Next, the writers elucidate few drawbacks of using e-arbitration towards the arbitrators and the parties. First, the adoption of e-arbitration may cause difficulty to the arbitrators who are qualified for the traditional arbitration as they are required to make changes to their knowledge and upgrade their technological skills such as navigating the internet and utilising the online tools. Secondly, the use of e-arbitration has been significantly touted to reduce the cost compared to the traditional method. However, it does not remove the fact that the implementation of e-arbitration will cost a huge amount of expenditure for its operation. Thirdly, due to the fact that e-arbitration takes place on the internet, there is a vital need for the parties who choose to resolve their dispute using e-arbitration method to have their own technologies. For example, a computer, webcam, and microphone are required if the disputants want to conduct a video conference in real time. Lack of necessary technology devices is certainly one of the big hindrances to adopt e-arbitration method in Malaysia because an e-arbitral proceeding or award cannot be enforced if one of the parties does not have the proper or adequate technologies. The conduct of e-arbitration without the existence of necessary technologies will be considered as a violation towards the parties’ right to be treated in equality.

The writers then continue to address the challenges of e-arbitration. As e-arbitration is carried out through the open networks, there is a high chance of growing data security threats. The faceless and borderless communication is unable to protect the security of information that is shared between those who are involved in the e-arbitral process from unauthorised access by the hackers. In addition, the confidentiality right of the disputants may be violated as well since e-arbitration takes place in the online environment. This is because the confidential documents can be sent to the third party with only one mouse click. Having said that, the feature of confidentiality that is uncertain in e-arbitration consequently makes the parties reluctant to participate in e-arbitration.

Lastly, the writers conclude that it is possible to practice e-arbitration in Malaysia as the finding of the analysis shows that e-arbitration can bring several advantages to the dispute resolution industry in Malaysia. They also highlight that all disadvantages and challenges associated with the use of e-arbitration method are not difficult to overcome and resolve because they are only operational and first-implementation issues. They support and insist on the idea of enforcing e-arbitration by illustrating e-arbitration as any new tool used by an employee for the first time whereas the tool is only ideal and beneficial to use after it goes through many stages of improvement. At the end of the article, the writers express their hope to see the growth of e-arbitration in the Malaysian dispute resolution legal framework.

Based on my personal view, I believe that this article is written with the aim to notify the importance of applying e-arbitration method in Malaysian dispute resolution industry to the Malaysian citizen and Malaysian government. Throughout my reading, I figure that both writers are excessively eager to see the practice of e-arbitration being implemented in Malaysia because they go miles in listing all pros and cons regarding e-arbitration. By having the analysis of the advantages and the disadvantages of e-arbitration compared to side by side, I agree that e-arbitration brings more benefits than harms. This shows that it is possible to see the conduct of e-arbitration in Malaysia in the future.

However, there is one contradicting fact stated by the writers that bothers me. One of the significant features of e-arbitration touted by the writers is the cost to conduct e-arbitration is cheaper compared to the traditional arbitral method. This is because e-arbitration takes place on an online platform known as the internet. But, the writers later mentioned in the drawbacks of using e-arbitration that e-arbitration costs a huge amount of expenditure for its operation. This means the facilities, tools and technologies that are needed to conduct e-arbitration are too costly for any party who wishes to participate in e-arbitration. I believe that this matter can only be solved with the search for the source of funding. Therefore, if the government decides to adopt e-arbitration method alongside the traditional method, then the government shall not ignore the concern regarding the cost to conduct the operation of e-arbitration.

In my opinion, the implementation of e-arbitration in Malaysia shall not be done drastically. Rather than practicing e-arbitration in all states, it is better to focus on the urban areas and cities where technological equity exists. In addition, e-arbitration method shall only be referred to by the parties who can afford all of the expenses and have the desire to use e-arbitration method. In the context of the arbitrators, the arbitrators who wish to participate in e-arbitration shall be first equipped with adequate awareness, skills and knowledge of the e-arbitration process. With these small steps, we might see a shift in the dispute resolution legal framework of Malaysia in the future in which e-arbitration is no longer an option but rather it has become a necessity.