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Alternative dispute resolution in brunei darussalam: the blending of imported and traditional processes

Alternative Dispute Resolution in Brunei Darussalam: The Blending of Imported and Traditional ProcessesAnn Black Follow this and additional works at: Recommended CitationBlack, Ann (2001) "Alternative Dispute Resolution in Brunei Darussalam: The Blending of Imported and Traditional Processes," BondLaw Review: Vol. 13: Iss. 2, Article 4.
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Alternative Dispute Resolution in Brunei Darussalam: The Blending ofImported and Traditional Processes Abstract
[extract] The parallel, but separate, systems of courts that co-exist today in Brunei are a result of these two
distinctive imported influences. The British legacy is manifest in the Civil Court system whilst the Islamic
inheritance is apparent in the newly reformed system, of Syariah Courts. Whilst the former was retained post-
independence to be the dominant institution in the Sultanate's legal system, recent reforms to the Islamic
courts and to Islamic laws have signalled the Sultan's commitment to increasing their role and significance for
Brunei's predominantly Malay, Muslim population. This is consistent with the nation's ideology, Melayu Islam
Beraja (MIB), designed to promote and uphold Malay culture, Islam and the institution of the monarchy as
indispensable components in Bruneian development. Inevitably, MIB also impacts upon the current priorities
for dispute resolution, including those processes other than adjudication employed in courts, whether the
secular common law or the religious Syariah court systems.
It is two of these ‘alternative' processes, specifically arbitration and mediation, that are the main focus of thisarticle.
Keywords
alternative dispute resolution, Brunei Darussalam, arbitration, mediation, Islam
This article is available in Bond Law Review: Black: Alternative Dispute Resolution in Brunei Darussalam ALTERNATIVE DISPUTE RESOLUTION IN BRUNEI DARUSSALAM: THE BLENDING OF IMPORTED AND TRADITIONAL PROCESSES By Ann Black In 1984 the Southeast Asian sultanate of Negara Brunei Darussalam proclaimed itsindependence. Whilst this made Brunei one of the last nations in Asia to severe itscolonial ties, the kingdom has been in existence for over a thousand years. From itspre-Islamic animistic past, which was shared with the rest of the island of Borneo, thekingdom has been subject to a range of ideological influences. Although the earliestinfluence was from the Indic Majapahit empire, the more lasting influence was that ofIslam. The year 1360 is officially accepted as the date of the conversion of then Raja,which marked the commencement of the Sultanate as a legal and political entity. Islamprovided more than a new religion for the Brunei Malays. It offered, as well, ablueprint for an Islamic social order described as ‘an ideologically and canonicallyinspired vision of reality',1 which included the prescribed Islamic means for disputeresolution. In contrast, in giving the Sultanate Protectorate and then Residentialstatus,2 it was the British who prioritised the introduction of western secular valuesand practices for dispute resolution. The transplantation in the early 1900s of theEnglish common law system – its structure, institutions, laws and jurisprudence – intothis quintessentially Islamic society resulted in two distinctive lines of development indispute resolution.
The parallel, but separate, systems of courts that co-exist today in Brunei are a resultof these two distinctive imported influences. The British legacy is manifest in the CivilCourt system whilst the Islamic inheritance is apparent in the newly reformed system,of Syariah Courts. Whilst the former was retained post-independence to be thedominant institution in the Sultanate's legal system, recent reforms to the Islamiccourts and to Islamic laws have signalled the Sultan's commitment to increasing theirrole and significance for Brunei's predominantly Malay, Muslim population. This is Sharon Siddique, ‘Conceptualising Contemporary Islam: Religion or Ideology?' in SharonSiddique and Yasmin Hussain (eds), Readings on Islam in Southeast Asia (1985) 338.
The Protectorate commenced in 1888 and the British Residential system came into effect in1905. On the history of Brunei see Graham Saunders, A History of Brunei (1994).
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 consistent with the nation's ideology, Melayu Islam Beraja (MIB),3 designed to promoteand uphold Malay culture, Islam and the institution of the monarchy as indispensablecomponents in Bruneian development. Inevitably, MIB also impacts upon the currentpriorities for dispute resolution, including those processes other than adjudicationemployed in courts, whether the secular common law or the religious Syariah courtsystems.
It is two of these ‘alternative' processes, specifically arbitration and mediation, that arethe main focus of this article. Once more, the role of Islam and the English commonlaw have been influential, particularly on arbitration. However, with mediation, thepeople of Brunei have long established culturally preferred means of settling disputesand for reducing conflict that utilise informal localised forms of negotiation andmediation. These continue to be preferred over the exported western versions of theADR movement. That this is occurring is consistent with MIB, which over the last twodecades has operated to limit assimilation of all things western, and seeks to retainthat which is, or is deemed to be, congruent with Bruneian culture. This means apreference for Islamic and Malay solutions. The preference for using traditionalprocesses over imported versions is also not inconsistent with findings of otherresearch on the transfer of western ADR processes into different cultural contextsincluding Asia.
Historical and Cultural Basis for Dispute Resolution Preferences
Traditionally there has been a cultural preference in many Asian societies toresolve disputes privately through negotiation, mediation and conciliation.4 There is considerable support for the view that historically and culturally many Asiansocieties preferred processes other than litigation in the courts for dispute resolution.
An APEC5 report on dispute resolution in the region noted: ‘Parties from the Asianregion are generally averse to referring disputes to the courts. There is a strongtraditional cultural preference here to resolve disputes by discussion and bycompromise'.6 Leaving aside the valid issue as to whether the cultures of Asia can belumped together collectively and generalizations be drawn,7 Brunei Darussalam Translates as Malay Islamic Monarchy APEC International Commercial Disputes www.arbitration.co.nz/apec/ introduction.htm.
Asia Pacific Economic Co-operation. Brunei Darussalam was one of 12 founding membernations in 1989.
Catherine Tay Swee Kian, Resolving Disputes by Arbitration (1998) 5.
For the perspective that ‘there is no ‘Asian way' nor an ‘Asian culture' or approach, but an‘entire spectrum of approaches' see Louise Barrington, Karen Mills & Tan Swee Im,‘Selected Perspectives on ADR in Asia' in International Chamber of Commerce, ADRInternational Applications - Special Supplement 2001, ICC International Court of ArbitrationBulletin, (2001) 31. Also see Veronica Taylor and Micheal Pryles, ‘The Cultures of DisputeResolution in Asia' in Michael Pryles (ed) Dispute Resolution in Asia (1997) 1- 6. Cf Black: Alternative Dispute Resolution in Brunei Darussalam would seem to fit the mould of a society, which has a tradition of resolving disputesinformally. The interventions of headmen, local ulama (religious scholars) in thecommunity, and imam (prayer leaders at local mosques) has been established forcenturies as a means for settling differences and disputes at the local level. Prior to theResidency period, the more serious disputes would come to either the district chiefs orthe Sultan personally, with both fulfilling roles as mediator/arbitrators for thesedisputes, particularly when valuable property or people of standing were involved.
For Brunei the historical antecedents provide strong endorsement for these non –litigious forms of dispute resolution. Longstanding practices became embedded in theculture and continue to influence attitudes and sustain preferred ways of behaving.
In terms of culture, researchers have found that people from different cultures adoptdifferent priorities and means for managing conflict and resolving disputes. Moore8suggests dividing the world into direct-dealing and non-direct dealing cultures. In theformer, conflict and confrontation is accepted, and members are comfortable withdirect dialogue, face to face interactions, and direct negotiations.9 Members of non-direct cultures avoid conflict and confrontation, aim to preserve face for themselvesand others, and opt for intermediaries in a resolution process.10 Moore's descriptorsare consistent with the findings of social science research undertaken into culturalvariation.
One cultural variable, identified as correlating with divergence in managing conflictand dispute resolution, is that of individualism-collectivism. It has been considered bya number of researchers11 as providing a concise, integrated12 and ‘empirically testabledimension of cultural variability'.13 The dimension is bi-polar, with individualism andcollectivism at opposite ends of a continuum. Hui and Triandis14 also found thatmembers of collectivist cultures give emphasis to the implications of their behaviouron others, share resources, emphasize harmony with shame being the controllingregulator, define themselves by group membership and subordinate personal goals tothose of the group. People in individualist cultures share mostly with their immediate Christoph Antons, ‘The Study of Asian Law: the Need for a General Concept' (1995) 13Law in Context 106, 117 n 1.
Christopher W Moore, The Mediation Process: Practical Strategies for Resolving Conflict (2nded, 1996) 33.
Geert Hofstede, Culture's Consequence: Comparing Values, Behaviours, Institutions andOrganisations across Nations (2nd ed, 2001); Harry C Triandis, Individualism and Collectivism(1995). Uichol Kim, Individualism and Collectivism: a Psychological, Cultural and EcologicalAnalysis (1995).
The construct allows for integration of knowledge across disciplines such as anthropology,psychology, sociology and management.
Uichol Kim, above n 11, 3.
C Harry Hui & Harry Triandis, ‘Individualism-Collectivism: a Study of Cross-culturalResearchers' (1986) 17 Journal of Cross-Cultural Psychology, 225 -248.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 or nuclear family, are less willing to subordinate their personal goals to that of thegroup, are prepared to confront others, feel personally responsible for their ownsuccesses or failures, and focus on individual initiative, achievements and uniqueness.
It has been described as the ‘I' identity having precedence over the ‘we' identity ofcollectivists15 or the normative principle that the well being of the individual shouldtake priority over the well being of the group.16 Conflict is perceived in terms of theindividual and so can be constructed as ‘me versus you/us versus them' that is thebasis for an adversarial exchange.17 When conflict arises, people in individualistcultures are more likely to confront the other party directly and employ their rights tojustify their solution, on the basis that ‘not to claim in the appropriate circumstancesthat one has a right is to be spiritless or foolish'.18 Where direct confrontation fails,disputants can elect to articulate their case to a non-partisan third party. In collectivistcultures conflict is perceived as disrupting the harmony in relationships, therebynecessitating that these relationships be restored and maintained. The preferred wayto restore relationships is to avoid any direct confrontation19 and to negotiate asettlement directly, or through a third party, who also shares that group's goals. Onlywhen this fails, and after successive efforts to resolve it intra-group, will externalmeans be used.
Most research on the relationship between collectivism and dispute resolution hascentered on the Chinese culture,20 whose notions of harmony, reciprocity and moralpersuasion are derived from acculturation in Confucianist ideology. However,Hofstede's research also positioned Malaysia as a nation with a predominatelycollectivist culture. Whilst Brunei Darussalam was not analysed by Hofstede, bothMalaysia and Brunei have a similar ethnic mix with Malays, Chinese and Indigenousnon- Malays comprising over 80% of the population,21 and share a similar geographic,historical, linguistic and social development. Both promote the Malay culture. It is William B Gunykunst, Stella Ting-Toomey and Elizabeth Chua, Culture and InterpersonalComunication (1988) 40.
J Reykowski, ‘Collectivism and Individualism as Dimensions of Social Change' in UicholKim et al Individualism and Collectivism (1994) 278.
Andrew J Pirie, ‘Alternative dispute resolution in Thailand and Cambodia' in Douglas MJohnston and Gerry Ferguson (eds) Asia-Pacific Legal Development (1998) 526.
Kim, above n 11, 51.
For individualists, confrontation is seen as being direct, assertive, open and ‘to the point',all of which are regarded as positive and signs of personal strength.
Bee Chen Goh, Negotiating with the Chinese (1996); Lim Lan Yuan, ‘Impact of CulturalDifferences on Dispute Resolution' (1996) 7 Australian Dispute Resolution Journal 197;Stanley Lubman, ‘Mao and Mediation: Politics and Dispute Resolution in CommunistChina' (1967) 55 California Law Review 1284; John S Mo, ‘Probing Chinese Mediation' (1997)8 Australian Dispute Resolution Journal 43.
Census data shows the following distribution in a population of 330 700 in mid-1999: 67%Malays, 15% Chinese, 6% indigenous non-Malays and 12% other races. The definition ofMalay for census purposes is broad and includes Dusun, Kedeyan, Tutong, Belait, Bisayaand Murut indigenous.
Black: Alternative Dispute Resolution in Brunei Darussalam axiomatic that Brunei's culture would also fall into the collectivist dimension.
Additionally, the current MIB promotion of values in accordance with traditionalMalay culture ensures continuance of the collectivist viewpoint. Endorsement andmaintenance of traditional cultural practices is occurring at both an official and locallevel, in order to create a buffer against the materialism and individualism of westernculture.22 Whilst the Malays do not have a scholar philosopher such as Confucius dominatingtheir political, ethical and social thought, traditional Malay culture embodies similarcharacteristics. The overriding aim is to ensure that harmony in human relationsprevails. Social harmony is to be maintained through mutual obligations, and througha defined social hierarchy in which respect and loyalty are promoted. Communityeffort and mutual cooperation (gotong-royong) is fostered by kinship and locality ties,and reinforced by Islamic values.23 Decisions in the kampongs are to be reachedthrough consensus.24 The way to maintain good relations in families and communitiesis through avoidance of conflict by adhering to proper behaviour or halus,25 respectingrank and status, and deferring to those with higher status. Social harmony is furtherachieved by observing the established rituals of courtesy. There is a strongcommitment to mutual help, based on notions of duty, obligation and generosity26with co-operation and sharing amongst group members known as memucang-mucang.27These features of Malay culture extend beyond the family and social setting into thecommercial and professional area. Business relationships are equally personalised,and governed by ‘elaborate forms of curtesy and standardised rituals calibratedaccording to the rank of the recipient'.28 In business dealings there is as much concernfor the social relationship as there is for the commercial side of the negotiation, withcontractual details and obligations less important than the trust and understandingbetween the parties.
One consequence of Brunei's collectivist character would be the preference foravoiding direct confrontation when a dispute arises, in favour of compromise andsettlement through direct, or third party, negotiations. Collectivist cultures generally Dato Paduka Haji Matussin bin Omar, ‘The making of a National Culture: Brunei'sExperience' in Edwin Thumboo (ed) Cultures in ASEAN and 21st Century (1996) 14.
Hamzah-Sendut, Tan Sri Datuk & Thong Tin Sin, Managing in a Plural Society (1989) 139.
The process for working through differences to find consensus is known as musyawarah.
Similarities between halus and other Asian concepts based on respect for others, and theirmutually reinforcing nature such as Korean ‘kibun' (considerate behaviour), Thai krengchaiand Chinese mien-tzu and lien or ‘face' are raised in Hamzah-Sendut, Tan Sri Datuk &Thong Tin Sin, above n 23, 141-142.
Lim Jock Seng, The Inter-relationship of Technology, Economy and Social Organisation in aFishing Village in Brunei (1986) 79. Also noted are reciprocity, co-operation and sharingwith mutual responsibility and indebtedness.
Dato Paduka Haji Matussin bin Omar above n 22,14.
Hamzah-Sendut, Tan Sri Datuk & Thong Tin Sin, above n 23, 141.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 correlate with preference for consensual rather than adversarial outcomes.29 As thewestern processes of ADR, particularly those of mediation and arbitration, are seen asbeing less adversarial and as giving more control to parties in a dispute than litigation,there was an expectation that these ADR processes would be adopted in collectivistsocieties such as Brunei.
However, the processes labelled as part of ADR in the west were ones that developedin highly individualistic cultures. ADR grew as a response to disillusionment with thelitigation model that was being used in common law countries such as the UnitedStates, England and Australia. It was widely perceived in those countries that delaysin the courts were impacting negatively on outcomes and the perception of justice.30Concern was also expressed that: ‘the adjudicative bias of today's legal profession isnot only a fantasy: it harms dispute resolution. Litigation as used in many traditionalareas of law is too expensive, divisive, inaccessible or ineffective'.31 It was alsocritiqued on the grounds that it was perceived to be hostile and alienating: ‘womenand minorities have remained at the periphery of the Anglo-Celtic, male matrix oflegal values which are expressed in a court room, together with a distressing style ofcross-examination and oppressive discourse'.32 There was sufficient consensus thatdeficiencies existed with the model and that these needed to be addressed. One meanswas by reform to the existing system by way of case management. The other was foralternative processes, loosely categorized under the catch-all phrase of ADR, to beencouraged and officially supported by governments and their agencies, the courts,legal and non-legal professionals, and educational or training facilities. A need wasperceived and ADR was part of the remedy. It seems that for Brunei the same needhas not been identified. In Brunei, court congestion is not a pressing problem, therehas been little concern expressed about the cost of litigation, and the society hasreligious and cultural beliefs, traditions and practices that are distinctive and notshared with the west.
This is the background and context for the description and analysis of the disputeresolution processes of arbitration and mediation that follow. With arbitration boththe western and Islamic forms will be considered, and with mediation the focus is on acomparison between the imported western and the local traditional processes.
Arbitration is a process in which the dispute is referred to the adjudication of a thirdparty chosen by the disputing parties and whose decision will be binding on them.
Pirie, above n 17, 525.
Jay Folberg amd Alison Taylor, Mediation: a Comprehensive Guide to Resolving ConflictsWithout Litigation (1984) 4.
Jack Effron, ‘Alternatives to Litigation: Factors in Choosing' (1989) 52 Modern Law Review480.
Margaret Thorton, ‘Equivocations of Conciliation: the Resolution of DiscriminationComplaints in Australia' (1989) 52 Modern Law Review 735.
Black: Alternative Dispute Resolution in Brunei Darussalam Parties, either in a dispute or entering into a contract together, may decide that if adispute arises it would be best to have it resolved by arbitration, which can give aresolution which is legally binding, but avoid what they consider may be thedisadvantages of litigation in the courts.33 The preference disputing parties will havefor arbitration as a process is determined by many factors. These come from theirperceptions as to the degree of advantage or disadvantage of arbitration vis a vis otherprocesses, knowledge the parties have of these past experiences, advice given byothers, perceptions regarding the specific expertise of the arbitrator or centreproviding dispute resolution services, availability, risk assessment, culturalpreferences and personal instinct.
In Brunei Darussalam, as in other countries of the Asia Pacific region, arbitration isavailable to disputing parties. It comes in two forms. There is arbitration inaccordance with legislation, Emergency (Arbitration) Order (1994), which was designedto meet the needs of commercial transactions, both domestic and international. It ismodelled on the English arbitration law. Also there is traditional Islamic arbitration,takhim, which in Brunei Darussalam has been limited to family and marital disputes,although in several other Islamic nations it is used widely in commercial disputes.34Both will be considered.
Features of Arbitration Pursuant to the Arbitration Act (1994)
The Emergency (Arbitration) Order (1994) was enacted to provide Brunei Darussalamwith the legislative framework for resolution of civil disputes by means of arbitration.
It has subsequently become classified as the Arbitration Act 1994, Cap 173 of the Lawsof Brunei Darussalam. As Brunei Darussalam is now a party to The United NationsConvention on the Recognition and Enforcement of Foreign Arbitral Awards (the New YorkConvention) the Act gave effect to the provisions of that Convention. The Conventionobliges the courts in Brunei, as one of the signatory states,35 to defer to arbitraljurisdiction whenever a case is brought under a contract containing an arbitrationclause,36 and to enforce an arbitral decision made in another country37 - although thereare some limited exceptions to the latter. The grounds for appealing arbitral awards Advantages for arbitration suggested in the literature include choice of tribunal;confidentiality; speed; technical rather than legal expertise of a particular arbitrator; cost;wider choice of representation; flexibility of procedure and wider jurisdiction than a court.
Saudi Arabia is one such country. See George Sayen, ‘Arbitration, Conciliation, and theIslamic Legal Tradition in Saudi Arabia' (1987) 9 University of Pennsylvania Journal ofInternational Business Law, 211 -255. Generally on Islamic arbitration see Vincent Powell-Smith, Aspects of Arbitration: Common law and Shari'a Compared (1995).
Art III of the New York Convention 1958.
Art II of the New York Convention 1958.
No foreign arbitral awards had been enforced at the time of communication with the ChiefJustice, September 2000.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 are set out in Article V, including that the award was set aside by a court in thecountry where it was originally awarded.38 To date, Brunei Darussalam is not a party to the Washington Convention (ICSID)39 norhas it entered into any bilateral investment agreements with arbitration provisions.
Brunei Darussalam has recently become a signatory member of WIPO.40 The Arbitration Act does not adopt the UNCITRAL Model law for arbitrations. Thisprocedural model was adopted by the United Nations General Assembly in 1958, withthe aim of establishing a comprehensive set of rules that would give a unifiedframework for efficient settlement of commercial disputes internationally, andharmonize the various national legal systems. Parties in Brunei Darussalam couldapply the rules of UNCITRAL or the rules of an arbitration institution, as the Act doesnot limit the parties doing so. It gives them autonomy to modify the procedural rulesin the Act, and to introduce their own. The reason for Brunei Darussalam notadopting UNICITRAL may lie in the fact the Britain has not done so, for thecommercial and civil law of Brunei is essentially the same as that of its coloniser,England.41 The Act will apply when parties have made an arbitration agreement. Section 2 of theArbitration Act (1994) defines an arbitration agreement as ‘an agreement in writing(including an agreement contained in an exchange of letters, facsimiles or telegrams)to submit to arbitration present or future differences capable of settlement byarbitration whether an arbitrator is named therein or not'. This covers ad hocsubmissions of existing or current disputes, as well as those where the originalagreement between the parties had a contractual clause to the effect that any disputesarising out of their agreement would be resolved by arbitration.
It has been estimated42 that arbitration agreements would be contained in 90% ofcontracts in the construction industry, which is the second largest industry in BruneiDarussalam after oil and gas, as well as in a large number of commercial contracts,especially where the subject matter of the contract is complex or technical. Sucharbitration agreements are typically found in contracts with the Government ofBrunei, for the government and its agencies have immunity from suit.43 Arbitration Art V (e) of the New York Convention 1958.
The International Convention on the Settlement of Investment Disputes between Statesand Nationals of other States was signed in Washington 1965.
The World Intellectual Property Organisation is an international body of the UnitedNations established to promote and protect intellectual property around the world. In1994 the WIPO Arbitration and Mediation Centre was established.
Colin YC Ong, Cross-Border Litigation within ASEAN (1997) 135.
Based on interviews with lawyers and an arbitrator from the Bruneian firm of JR Knowlesregarding arbitrations in the construction industry.
Constitution of Brunei s25 (1) (b).
Black: Alternative Dispute Resolution in Brunei Darussalam can provide an avenue for adjudication in the event of a dispute, otherwise thecontracting party has to rely on negotiated settlements with the government.
Although the majority of commercial and construction contracts contain arbitrationagreements, in practice most parties prefer to waive their rights under the arbitrationagreement,44 in many cases being advised to do so by their lawyers. There wereadmissions that arbitration agreements were put into contracts to be used as adelaying tactic to buy time, should a dispute arise and the other party commenceslegal proceedings to get summary judgment in the court. This is because the Actallows for an application to be made to stay the court proceedings in order forarbitration to take place.45 The court will stay the proceedings unless it is satisfied thatthe arbitration agreement is null and void, inoperative, incapable of being performedor that there is in fact no dispute between the parties. The Act does not specify whichtypes of disputes can be arbitrated. Certainly criminal matters are excluded,46 andgenerally have been in the past, for reasons of public policy. However, contracts‘relating to land or an interest in land'47 would also be excluded, because an arbitratorcannot make an order for specific performance where there is such a contract.
Otherwise the arbitrator has the same power as a court regarding specificperformance remedies, unless it is expressly excluded by the contract. Generally, it ismatters in which damages may be claimed that go to arbitration. The High Court doeshave power to set aside any award from an arbitration if it is satisfied that thearbitration agreement was null and void, inoperative or incapable of being performed,or that there is not in fact any dispute between the parties with regard to mattersagreed upon for arbitration.48 The Act makes a distinction between domestic and international arbitration. Thesignificance is that there are different provisions49 in the Act to be applied in eithercase. An arbitration is international when the agreement expressly or by implication provides for arbitration in a stateor territory other than Brunei Darussalam and to which neither: an individual who is a national of, or habitually resident in any state orterritory other than Brunei Darussalam; nor a body corporate which is incorporated in, or whose centre management andcontrol is exercised in any state or territory other than Brunei Darussalam, is a party at the time the proceedings are commenced.'50 Based on interviews with lawyers in commercial practice.
Arbitration Act (Cap 173) s7.
Given the long title which states ‘An Act to make provision for arbitration in civil matters'.
Arbitration Act (Cap 173) s21.
Arbitration Act (Cap 173) s8 (1).
Applications for stay of proceedings and exclusion agreements are provided for inArbitration Act (Cap 173), s8 and s30 respectively.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 The law to be applied in arbitration is that determined by the parties. In mostdomestic arbitration agreements it is stipulated to be the law of Brunei Darussalam.
Whilst government contracts are generally silent as to the choice of law, the primafacie position is that the law of Brunei Darussalam would be held to apply. Thisaccords with the English position that in the absence of an express choice it is the lawwith which the agreement is most closely associated.51 There is no stipulation as to the language to be used in arbitrations but as English isthe language used in legal proceedings in the secular courts, and is widely spoken asthe second language in Brunei in commercial and international dealings, Englishwould customarily be used in arbitrations. There is no provision in the Act onconfidentiality, so this would need to be specified in the agreement to arbitrate.
There are no restrictions on who can be appointed arbitrator, apart from the fact thatthe consent of the Chief Justice is required before judges and magistrates of BruneiDarussalam can be appointed; and the Minister of Law, who is chairman of the PublicService Commission, must give consent for the appointment of any public servant.52Government contracts give the authority to the Minister of Development to appoint anarbitrator, and where the Minister does not so nominate, then the Chief Justice canappoint the arbitrator.
Conciliation Under The Act
Conciliation is provided for in Part 11 of the Arbitration Act (Cap 173), but is limited tocircumstances where the parties to an arbitration agreement have included a writtenprovision in their agreement that they should first attempt to settle their dispute byconciliation.53 Conciliation is not defined but has been taken to mean a processwhereby parties are assisted by a neutral conciliator/mediator to reach a mutuallyacceptable solution to the dispute.54 The term mediation can be used interchangeablywith conciliation, but in the context of this Act, conciliation will be used. If theconciliation process fails to produce such an agreed solution it automaticallyterminates at the end of three months. Where an acceptable agreement is reached andis signed by the parties, it will be treated as an arbitration award and is to be enforcedin the same way as an arbitral award.55 Where there is a provision for the conciliator tobecome an arbitrator if the conciliation were to fail, that alone does not become aground for objection. The act is silent as to the confidentiality of conciliation.
Arbitration Act (Cap 173) s 8 (3) & s30 (2).
Hamlyn v Talisker Distillery [1894] AC 202.
Arbitration Act (Cap 173) s16.
Arbitration Act (Cap 173) s3.
Arbitration Act (Cap 173) s3(4).
Black: Alternative Dispute Resolution in Brunei Darussalam Where the arbitration agreement contains a conciliation provision but does not specifywho is to act as a conciliator, the court can appoint a conciliator. The High Court ofBrunei Darussalam has not to date made such an appointment.56 Legal practitioners57indicated that they were not aware of any conciliation proceedings that have occurredunder the Act, and there were some expressions of concern or doubt as to who wouldhave the ability or experience to warrant such an appointment. Provisions forconciliation are not standard in either commercial or construction contracts in BruneiDarussalam, and there was a perception that if a dispute had reached a stage where itwas proceeding to arbitration, it would be too late and unproductive to spend time onconciliation.
Role of Arbitration Under the Act
There are no official figures available on the number of domestic arbitrations takingplace in Brunei Darussalam. Lawyers in commercial practice who had nominatedarbitration as a process provided by their firms indicated that the actual numbers ofarbitrations were small, and that it was an under-utilised option. The Chief Justicewas in agreement that the numbers were small, estimating that possibly four to sixdisputes a year would be decided by arbitration, though two to three times thatnumber of disputants would threaten to use arbitration as a means to bring about asettlement. Like litigation, arbitration was used as a tactic to facilitate negotiationsrather than a dispute resolution process in itself. A lawyer in the Attorney-General'sDepartment said ‘there may be an Act, but people in business don't think of it(arbitration) as a serious option'.58 In Brunei there appears to be a perception that there is no real need for arbitration toplay a greater role. There could be several explanations for this. On the practical side,local lawyers consider the courts work effectively. ‘There is no reason to look for thosesort of alternatives - it doesn't take long to get a matter before the courts and you canbe guaranteed a fair hearing. Clients are happy and we are happy'.59 It was alsoindicated that there was no significant difference in terms of time or costs betweenarbitration and litigation, and if there was, arbitration was considered the moreexpensive (especially arising from payment of arbitrators' fees) and more protracted.
Possibly the effectiveness of the court process has been complemented by theintroduction of pre-trial conferences. These are mandatory for all civil cases set downfor trial before the High or Intermediate Court, where both parties are legally Interviews with the Chief Justice, Dato Sir Denys Roberts in April and September 2000.
From an interview with a lawyer in private practice in response to a question about theuse of arbitration. It was representative of the opinions given by several of the lawyersinterviewed.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 represented. The judge, or more usually the Registrar, will try to facilitate asettlement.
Another contributory factor to the limited utilisation of arbitration is that knowledgeand familiarity with arbitration as a process is not extensive. Arbitration was not aservice that all firms in Brunei were able to offer, nor could they providerepresentation for their clients. Less than half of the firms that responded to a surveyconducted60 on dispute resolution processes available to their clients in Bruneiindicated that domestic arbitration was a service on offer for their clients. Two of thelegal firms responded that they could provide for international commercialarbitration. Several of the firms also questioned the ability of some of the other firmsto provide a quality service. The process of selling ‘arbitration' as a service in BruneiDarussalam has been undertaken by a British firm that specializes in the provision ofADR services to the construction industry. The firm reports that whilst there has beengood attendance at information seminars,61 the majority of attendees were governmentemployees, with private business and the legal fraternity underrepresented andgenerally resistant to the possibilities. The indications were that in Brunei Darussalam,lawyers perceived arbitration as an alternative method of litigation, rather than analternative to it, and the level of confidence in the courts obviated the need to considerthe alternatives. There have been occasions, however, when the Supreme Court hasdiverted a matter to arbitration, when the amount of evidence was such that theprotracted nature of proceedings would adversely affect the court list.
It was suggested that a number of contracts and transactions in Brunei Darussalammay be tainted with aspects of illegality, minor and major, and that the scrutiny by thecourts or by arbitrators would not be wanted. Even without that consideration, bothprocesses were seen as ‘going into the minutiae' rather than getting to the crux of thedispute - essentially coming from the western stable of processes, and not accordingwith the inherent collectivist viewpoint. Both appear to threaten, possibly to bedestructive of good social relationships, which are prioritised in Bruneian culture.
Whilst in theory arbitration can be less regulated, less formal and more consensualthan adjudication in the courts, in reality many in Brunei Darussalam see it as equallyrule bound, inflexible and adversarial. It means the choice will come down to going tocourt, always with the strong possibility that a negotiated settlement will be theoutcome,62 or settle the dispute through ‘local means and contacts'. This refers to directnegotiations between the parties, and negotiations which are facilitated ‘intracommunally' when both disputants share the same ethnicity, language and culture.63 It Eighteen law firms were surveyed by questionaire in 2000.
A seminar in November 1999 had 60-70 people attend.
In 1999 94% of cases commenced in the High Court and 98% in the Intermediate Courtsettled.
In Brunei Darussalam awareness of ethnicity is evident. It is a factor in employment,education and government services. The Government uses ‘ethnicity' as a classifier more Black: Alternative Dispute Resolution in Brunei Darussalam involves calling on contacts within one's own community to assist in the resolution ofthe dispute. Often it will involve a significant third party in that community assistingin an informal but persuasive form of mediation. The third party will be connected toone or both of the disputants through family, friendship or business ties. This ispossible given the small population of Brunei Darussalam - 330, 700 (1999), with200,000 residents in Bandar Seri Begawan, the capital and commercial centre.
When any dispute arises in Brunei Darussalam involving a company an importantquestion is, ‘who is behind it?' The indications that if the person is well connected,especially with links to the royal family, then the likelihood of proceeding with eitherlitigation or arbitration becomes negligible. Apart from concern over the impact onfuture business dealings and possible diminution of goodwill, local culture ensuresthat a Bruneian Malay would find it socially inappropriate to bring an action in thecourts, or to invoke arbitration, even when there is a contract with a provision forarbitration. The tenacity of the traditional social hierarchical structure andaccompanying rules of appropriate behaviour,64 even in today's society, mitigateagainst taking action against a person of royal standing or rank. The factor ofconsidering social place and deference to be displayed to persons of higher rank,social status or age as impeding the acceptance and implementation of ADRprocesses, has parallels in other countries such as Thailand and Cambodia.65 The stateideology, MIB, through its endorsement of adat istana (laws and customs of the palace)and promotion of the formalities and features of traditional stratified Brunei societyindirectly reinforces the natural collectivist reluctance to litigate or arbitrate againstsuch parties of significant social standing. The consequence is that arbitration wouldbe more likely to be employed for dispute resolution where there exists some equalityin social and commercial standing, without a close social relationship havingdeveloped. For this reason overseas international companies rather than localBruneian ones have been more willing to arbitrate.
Although arbitration has not been widely adopted in Brunei Darussalam as a processfor commercial dispute resolution either domestically or internationally, this is nottotally inconsistent with the trend in the countries of the Asian region. An APECReport noted: arbitration is certainly a dispute resolution technique that is in use in the AsiaPacific region. It would appear, however, mainly from anecdotal evidence, thatresort to arbitration to settle disputes has not grown as rapidly as one would haveexpected given the growth in the number of transactions that make up the presenttrade flows in the region.66 explicitly than do multi-cultural countries such as Australia. Identity cards, passports,entry permits and visas all require ‘race' to be entered as well as nationality.
For details on the social stratification and importance of rank see DE Brown, ‘Brunei in aSocial Comparative Perspective' 1978 (26) Sarawak Museum Journal 135.
Pirie, above n 17, 534.
APEC International Commercial Disputes www.arbitration.co.nz/apec/ introduction.htm.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 The report gives some structural reasons for this, including the fact that rules forconducting arbitration differ among the countries, creating some uncertainty anddiminishing confidence, and also that there are differences in the region in thewillingness of courts to enforce arbitral awards in international commercial disputes.67Cultural reasons, such as the adversarial nature of arbitration in societies wherecompromise is prioritised, and its capacity to destroy business relationships were alsogiven. A further factor noted was that in international transactions, where parties maycome from diverse geographical and legal backgrounds, there may be insufficientunderstanding of the other's culture to trust ADR processes as being fair orreasonable.68 The level of acceptance of arbitration in Asia, however, really turns on each country'sunique circumstances, and their own assessment of its benefits or drawable, in theirparticular circumstances. In the case of the Hong Kong Special Administrative Regionand also in Singapore, there has been a much higher acceptance of arbitration as adispute resolution process. It has been suggested that in the case of Hong Kong, thegrowing dissatisfaction with the high legal costs, and the proactivity from members ofthe Hong Kong Arbitration Centre69 have contributed to this high level of acceptance.
Brunei has different structural, historical and cultural circumstances and it seems thatat this point in time Bruneians are not convinced of the need to extend their use ofarbitration in the commercial context.
In addition to this western and secular form of commercial arbitration there is alsoIslamic arbitration which continues to play a small role in dispute resolution forBrunei Malays.
Islamic Arbitration (Takhim)
And if you have reason to fear that a breach might occur between a [married]couple, appoint an arbiter from among his people and an arbiter from among herpeople; if they both want to settle things aright, God may bring about theirreconciliation. Behold, God is indeed all knowing, aware. (Quran, Sura al-Nisa 4:35.) Long before the advent of Islam, much of the Middle East including Arabia practicedarbitration. Disputes were settled either by means of self-help processes such asnegotiation and personal vengeance or by tribal arbitration. The latter was thesanctioned form for dispute settlement. The divine revelations to the ProphetMohammad endorsed him as an arbitrator (hakam) for disputes amongst his followers.
He rejected the pagan elements that existed in pre-Islamic arbitration, but not Ibid. For practical difficulties associated with arbitration see Ong, above n 41, 27.
See Barrington et al, above n 7, 33.
Black: Alternative Dispute Resolution in Brunei Darussalam arbitration as a process. He conducted arbitrations as well as adjudications, thedifferences being that in arbitration the parties chose their arbitrators, whilst inadjudication the judge was appointed by the ruler or government. The Prophet alsorecommended others to be arbitrators. After his death, the Prophet's companionsrecognised validity in the process and exhorted the role of those who arbitrate andconciliate.70 The importance is evident in the advice that ‘composing of differencesbetween men is better than all fasts and prayers.71 Islamic arbitration evolved in thecenturies that followed. Although it was derived from the Syariah, and was requiredto be in accordance with it, doctrinal variations between the Shia and major Sunnischools of law72 developed. These included whether an agreement to arbitrate in apossible future dispute was valid in Islamic law or void for uncertainty.73 There weredifferences in the process of appointment of the hakam,74 and in the qualificationsrequired,75 but all were in agreement that a third party, even a kadi, could not appointa hakam who was unacceptable to the disputing parties.
There were aspects of conciliation incorporated into takhim. Attempts were made toconciliate (suhl) the parties, to persuade rather than to coerce, with the hakamendeavouring to create a cooperative atmosphere conducive to amicable settlement. Ifsuhl could not be attained then the hakam, guided by the Syariah, reached a decision forthe parties. The schools differed as to whether a decision of an arbitrator could bindthe parties. Imam Shafi'i considered that an arbitral award would only be enforceableif both parties agreed to it.76 This renders it closer to a form of conciliation ormediation. There were other scholars in addition to the Malaki and Hanbali who felt ahakam's decision was legally equal to that of a kadi. The Hanafi scholars held that akadi could only enforce an arbitral award if he agreed with the veracity of thedecision.77 Today, arbitration remains a recognised process for dispute resolution in manyIslamic countries.78 Whilst the Syariah continues to inform the procedural and Vincent Powell-Smith, Aspects of Arbitration: Common law and Shari'a Compared (1995) 4 - 6.
In the Fatamid authority Da'a'im al'Islam cited in ibid.
The four main Sunni schools are the Hanafa, Maliki, Hanbali and Shafii. These areoutlined in Jamila Hussain, Islamic Law and Society (1999) 31-32.
The uncertainty (gharar) is based on the possibility of a dispute arising at some future timeover an aspect of the contract that was unknown at the time of agreement.
In the Shafii, Hanifa and Hanbali schools, the appointment of the hakam could be revokedby either of the disputing parties or by the hakam himself, up until the announcement ofthe decision. In the Malaki texts it was irrevocable. These are discussed by Sayen, above n34, 230.
See Hussain, above n 72, 175.
Abdul Hamid El-Ahbad, ‘Moslem Arbitration Law' in Proceedings of the International BarAssocation First Arab Regional Conference, Cairo, February, 1987, Vol 1, 341.
Sayen, above n 34, 235.
Saudi Arabia, Egypt, Jordan, Sultanate of Oman, Qatar, Bahrain, Yemen Arab Republic,United Arab Emirates.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 substantive aspects, the actual application and implementation does differ widelyamongschools and therefore countries. The degree of secularization of the courts, theextent to which statute law has been developed, as well as the ‘degree of strictness'79 inadherence to specific Islamic doctrine have created significant divergence inapplication.
Role of Islamic Arbitration in Brunei
To date, the scope of Islamic law has been limited to family, succession, personal andreligious matters, with the common law regulating commercial and financial matters.
This meant that takhim as a method of commercial dispute resolution did not developin Brunei. However, this could change given the increasing Islamisation of all aspectsof Brunei society, including extensions into the commercial and administrativesectors.80 Since 1956, Part IV of The Religious Council and Kadi Courts Act (Cap 77) didprovide for arbitration in disputes relating to marriage and divorce, when both partieswere Muslim and their marriage was solemnised in accordance with Islamic law.
The Quranic recommendations regarding arbitration for marital disputes as outlinedabove had been reflected in the specific sections of the Religious Council and KadisCourts Act which required the appointment of hakam by the kadi when there were‘constant quarrels between the parties to a marriage'.81 Two arbitrators, acting for thehusband and wife respectively, were to be appointed. Where possible, the hakamshould be a close relative of the parties because this would provide them withknowledge of the circumstances of the case,82 and ensure a strong commitment to dowhat is in the best interests of the disputants. The kadi could give directions to thehakam on how to conduct the arbitration, which must be in line with Islamic law.
Where the arbitrators were unable to resolve the dispute or the kadi was not satisfiedwith the arbitral process, other hakam could be appointed. If the hakam were inagreement that the parties could not be reconciled a divorce could be granted by thehakam, provided the parties had given their authority for this. Otherwise, the kadicould confer on hakam the authority to decree a divorce and to have it registered.
The second provision for the intervention of a hakam under the Act was when therehad been a revocable divorce after one or two talaks,83 and the husband has Samir Saleh, Commercial Arbitration in the Arab Middle East (1984) 12.
Islamic Banking, Islamic Trust Funds and Islamic Insurance have been established since1993.
Religious Council and Kadis Courts Act (Cap 77) s149.
Religious Council and Kadis Courts Act (Cap 77) s149 (1).
Talak or talaq is a form of divorce in Islamic law, available only to a husband. The talaq is apronouncement to his wife that a husband is divorcing her. The talaq can be revoked bythe husband during the period known as idah (the time during which three menstrualperiods elapse), and the marriage continues. After three talaqs a divorce becomesirrevocable. See Hussain, above n 72, 87-89.
Black: Alternative Dispute Resolution in Brunei Darussalam pronounced rujok, (the term for his intention to resume ‘conjugal relations')84 with thewife consenting to the rujok, but not resuming conjugal relations. Where there was noreason in Islamic law not to resume conjugal relations, hakam could be appointed toassist with the resolution of this dispute. If a wife would not consent to the rujok, thekadi could require the husband to divorce her, and if he refused to proceed with thedivorce, hakam could again be appointed to assist.85 The use of hakam pursuant to the Act had been declining,86so that rarely did the kadiuse his discretion for the appointment of such arbitrators. The reasons87 given for thiswere that divorce had become more accepted as a common life event for bothMuslims and non-Muslims in Brunei.88 This had lessened the social stigma of divorce,and so the earlier priority to reconcile disputing spouses had reduced. Marriagebreakdowns had become more complex and bitter with less willingness to beconciliatory.89 Kadis continued to encourage settlement and conciliatory solutions tomarital disputes but were increasingly using professional counsellors, known asFamily Advice Service officers, rather than hakam. Unlike hakam, these officersreceived training for their role, being supervised employees of the Religious AffairsDepartment. The establishment of the Family Advisor Unit in the Department ofReligious Affairs corresponded with the declining role for takhim in marital conflictand disputes.
Despite this noted decline in takhim, the recent Emergency (Islamic Family Law) Order(1999), which came into effect in 2001 with the establishment of the Syariah Courts,has retained and expanded the role of hakam in the reconcilation of syiqaq disputes(those marked by marital discord and disharmony).90 The Order distinguishes theroles for the Family Advice Service Officer and for hakam. Hakam can intervene whenthe Family Advice Service Officer has been unable to effect reconciliation betweenparties where one of them is seeking divorce.91 Takhim is also specified in the Order forcases where the court rejects a wife's complaints to them that her husband hasmistreated, assaulted or caused her harm, but she continues to repeat similar Religious Council and Kadis Courts Act (Cap 77) s150 (6)(a). Also ruju in Emergency (IslamicFamily Law) Order (1999) s53.
Religious Council and Kadis Courts Act (Cap 77) s 150 (6) (b).
Official figures are not available but in an interview with the Chief Kadi in September 2000he noted this trend.
Also based on interviews with the Chief Kadi, practitioners in Islamic law andrepresentatives from the Department of Religious Affairs in 2000.
Ignatius Stephens, ‘Hard Times bring Upsurge in Divorce Cases' Borneo Bulletin, 1 April,2001.
Emergency (Islamic Family Law) Order (1999) s43.
Emergency (Islamic Family Law) Order (1999) s42 (13). The officer has to submit to the court acertificate to that effect that he or she is unable to being about a reconciliation andpersuade the parties to resume conjugal relations.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 complaints thus demonstrating that there are constant quarrels in the marriage.92 Inthese cases, the court may appoint two qualified hakam, ‘competent in matters relatingto arbitration' with ‘one acting on behalf of the husband, and the other on behalf of thewife in accordance with Hukum Syara'.'93 The qualifications referred to are thoserequired under Islamic law, as discussed above, rather than professional arbitralqualifications. Also in accordance with traditional practice, the Order states that‘where possible' preference should be given to appointment of family members as‘qarabah qarib94 of the parties having knowledge of the circumstances of the case'.95Hakam are given authority to investigate the reasons for the quarrels, syiqaq, andendeavour to reconcile the parties.96 This is to be a concerted process, because if thehakam are unable to agree in arbitration, the court has the power to order them to keeptrying, and if the dispute continues for a longer period without reconciliation, thecourt can dismiss the hakam and appoint new ones.97 When the point is reached wherethe disagreement and disharmony between husband and wife continues unabated,and the hakam consider reconciliation unlikely, they can decide that the parties are todivorce, in talaq baain. The hakam refer the divorce to the Syariah court where it isaccordingly registered and certified.98 The retention of the role for hakam in this new legislation demonstrates a clearaffirmation of traditional Islamic dispute resolution practices. The delineation of therespective circumstances for intervention of hakam and of a Family Advice Serviceofficer serves to guarantee the place of Islamic arbitration, as endorsed by the Prophet,for Brunei. As prescribed in the Syariah, the primary focus of takhim continues to beon reconciling differences between the disputing parties.99 Where amicable resolutionis not possible, hakam have authority to reach a conclusive settlement, which isrecognized as binding and conclusive by the Syariah courts. One significant differencefrom arbitration in the western model, is that Islamic arbitration is considered areligious act, so the Syariah must guide and inform any arbitral process. With theseparameters hakam must ensure that the process, and any settlement, accords with theSyariah. Additionally, under Brunei legislation the hakam will be chosen precisely fortheir knowledge of, and family relationship with, the parties.
Emergency (Islamic Family Law) Order (1999) s43 (2). Where the wife proves to the court herclaims of mistreatment, assault or harmful acts to her body, modesty or property by herhusband, and the court fails to reconcile them, then a divorce (talaq baain) can be given.
Talaq baain means the divorce does not allow for a ruju, or return to the original state of themarriage and resumption of conjugal relations.
Emergency (Islamic Family Law) Order (1999) s43 (2).
This means a family member, based on lawful blood lineage. Defined in the Emergency(Islamic Family Law) Order (1999) s2.
Emergency (Islamic Family Law) Order (1999) s43 (3).
Emergency (Islamic Family Law) Order (1999) s43 (4).
Emergency (Islamic Family Law) Order (1999) s43 (6).
Emergency (Islamic Family Law) Order (1999) s43 (7).
This stage is akin to mediation. This is noted by Powell-Smith, above n 70, 4.
Black: Alternative Dispute Resolution in Brunei Darussalam Although takhim had been declining in marital disputes, its resurrection as a processintegrated with those provided by the new Syariah courts is likely to generate arevival in Islamic arbitration that may not be limited to disputes between husbandsand wives. It is possible that its role in the settlement of commercial and otherdisputes could also be resurrected. If Brunei Darussalam continues in itsimplementation of Islamic principles and processes into its commercial and financialpractices, it is likely to follow other Islamic nations, such as Saudi Arabia, Egypt,Qatar, Oman, Iraq and the United Arab Emirates, in ensuring arbitration accords withSyariah principles.
In this section consideration will be given firstly to some of the terminological issuesin mediation in order to highlight the significance of context and culture on the natureof the mediation process. This is followed by analysis of the role played by twovariants of mediation - western and traditional - that are employed in Brunei today.
Mediation is a process in which a third person or persons seek to assist the partiesresolve a dispute without imposing a binding decision.100 The parties in dispute areassisted by the mediator, who facilitates a process of discussion to enable them toreach an outcome to which each can assent.101 Whilst there are many variants andpermutations of mediation, with the word meaning different things to differentpeople, it is acknowledged as a process that has had a long and diverse history inmost cultures around the world.102 The cultural context naturally directs and informsthe nature of the process so that mediation in rural Islamic Turkey will differ fromthat conducted by a People's Mediation committee in the PRC. In the same way,mediation in the kampongs and longhouses of Brunei will differ from mediationsinformed by the western ADR philosophy. Within the latter, much of the discoursehas considered the diversity that exists under the label of mediation in westerncountries103 to the extent that Greenhouse considers ‘mediation' now represents aresidual category, filling the gap between formal judicial processes and systems ofviolent self-help.104 That there is an on-going terminological debate on what exactly ismediation105 is, in itself, a feature of western culture, where mediation has been 100 Micheal Mills, ‘China: Some Lessons in Mediation' [1993] Australian International Law News, 31.
101 See generally Laurence Boulle, Mediation: Principles, Process and Practice, (1996) 3.
102 Moore, above n 8, 20-22.
103 A chapter on diverse styles and approaches to mediating conflict is in Folberg and Taylor, above n 30, 130; and an overview of core, secondary and variable features of mediation isin Boulle, above n 101, 3-11.
104 Carol J Greenhouse, ‘Mediation: a Comparative Approach' (1985) 20 Man 90.
105 Mediation is an imprecise term that is acknowledged as having multiple meanings and permutations. See especially John H Wade, ‘Mediation - the terminological debate' (1994)Australian Dispute Resolution Journal 204. See also Gregory Tillet, The Myth of Mediation Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 theorised, evaluated, researched and professionalised. This does not happen in thecontext of traditional mediations where the long-standing, more informal andlocalised nature of the process, obviates any need for theorising, analysing orevaluating. Western mediation, which has been variously labelled modernmediation,106 or independent mediation,107 was consciously formulated and promotedto be an alternative process either in competition with, or complementary to, otherdispute resolution options, notably litigation, in the common law countries. Thecommon law setting has informed the process so that some features were toameliorate perceived problems identified with litigation, whilst others wereconsidered so important that they were incorporated into western mediation processand theory. Significant amongst the latter was the principle of independence of thejudiciary. Hence similar features of independence,108 impartiality,109 and neutrality110 formediators were engrafted onto the process of mediation. In assisting parties to exploreoptions for settling the dispute, the goal of western mediation is to bring about aconsensual outcome rather than to coerce parties to settle111 against their wishes, or onterms with which they feel dissatisfied. The emphasis in the western model is on theparticipants' own responsibilities for making decisions that affect their lives, and thatthis personal investment will engender more commitment than one imposed uponthem. Although this factor of individual control is not present in every type ofmediation found in western nations112 it is a representative feature in the type ofmediation being ‘exported' from the west to Asia. This exported form of mediation isto be labelled ‘western' mediation in this dissertation to distinguish it from thetraditional forms found in Brunei.
‘Traditional' mediation therefore refers to the processes that evolved and have beenused for centuries on the island of Borneo to resolve disputes. It seeks to bring about aconsensual settlement through the intervention of a third party mediator. Like its (1993); George Verghese Kurien, ‘Critique of Myths of Mediation' (1995) Australian DisputeResolution Journal 43. Folberg and Taylor write that the practice of mediation falls along aspectrum that defies a strict definition, but they then proceed to define it, above n 30, 7.
106 Ibid 32. Also referred to as the North American model of mediation, ibid 51.
107 Moore, above n 8, 41-53.
108 Andrew Zilinskas, ‘The training of mediators - is it necessary?' (1995) Australian Dispute Resolution Journal 58, 65.
109 Impartiality refers to the constant requirement for ‘even-handedness, objectivity and fairness towards the parties'. See Boulle, above n 104, 19.
110 Mediators are described as third party neutrals, being ‘comparatively neutral as to outcome' see Hilary Astor and Christine M Chinkin, Dispute Resolution in Australia (1992)102 -105; ibid 18.
111 Folberg and Taylor, above n 30, 7 - 10. However the degree of consensuality in mediation is questioned by Boulle, who demonstrates how pressure to settle can be indirectly ordirectly imported into the process. See Boulle, above n 101, 26-28. See also Kurien above n105, 46.
112 This is why Moore classifies this process as independent mediation to distinguish it from authorative mediation and social network mediation. See Moore, above n 8, 41.
Black: Alternative Dispute Resolution in Brunei Darussalam western counterpart, mediation here is not rigid or unvarying in application.
However, there are differences in roles, goals and procedures between the two, andthese are set out in Table 1. The dichotomy reflects the underlying dimensions ofcollectivist versus individualist culture.
Table 1 Comparison of Features of Western and Traditional Mediation
Western /Independent Mediation
Goal of mediation is for parties to reach Goal of mediation is to end the dispute an agreement that ends the dispute to between parties so that harmony can their mutual satisfaction.
return to the longhouse community.
Mediation is guided by adat and Mediators are guided by codes of traditional spiritual beliefs.
conduct, statutes, and publications onprocess, skills and techniques.
Mediators are connected to the Mediators should not have social ties, or be related to, the disputants.
through social relationships or kinshipties.
Mediators may have a preventative or Mediators have no role in preventing or pre-emptive role.
Mediators will have an ongoing A mediator's role is complete once a continuing relationship with the parties dispute is resolved - though strategies for post resolution of the dispute.
dealing with future conflict or disputesmay be provided.
A mediator can be any person who Mediator function is assumed as the role possesses the necessary of the longhouse headman.
Accreditation has objective basis - such as Accreditation has subjective basis - trust courses, professional qualifications, and respect of that community.
recognition by authoritative bodies.
There is no training, other thancommunity enculturation.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 Authority of the mediator comes from Authority of the mediator comes from the either an institutional source such as the support and confidence the longhouse courts, or from selection by the parties.
community has in him, as headman.
This is related to training and reputation.
Mediations occur in private settings - an Mediations typically occur in a public office/ room neutral for the parties.
setting - raui of the longhouse.
Mediation has no educative role beyond Mediation has an educative role for the the disputants.
Mediators should be impartial, objective Mediators should be fair, kind, loving and and even-handed.
subjectively appraise options.
Criticism of disputants' behaviour or Criticism is acceptable where this is character is unacceptable.
relevant to the dispute.
Parties direct the outcome - mediator Moral persuasion and coercion can be should not persuade or coerce.
justified in the interests of the longhousecommunity.
Role of Traditional Mediation
As in other non-western, indigenous or traditional forms of mediation foundthroughout much of Asia,113 the traditional mediation process in Brunei places agreater focus on ensuring an outcome - that is, settlement of the dispute - than is seenin the western model. This arose because traditional mediation was not an alternativeto litigation but was the dominant means for dispute resolution, and the alternativesto it were not courts of law, but physical ordeal, combat and retributive andinstitutionalised forms of vengeance.114 For the dayaks in Borneo that meant 113 China for over 2000 years has used mediation as the preferred method of dispute resolution. Weidong Ji ‘The Chinese Experience: a Great Treasure-house for the Sociologyof Law' in Masaji Chiba (ed) Sociology of Law in Non-western Countries (1993) 17; Mills,above n 100. In the context of Japan there has been much research into the reasons whythere is an ‘expectation that disputes will be settled by an amicable solution orcompromise'. See Joseph WS Davis, Dispute Resolution in Japan (1996) 5; John O Haley, ‘TheMyth of the Reluctant Litigant' (1978) 4 Journal of Japanese Studies 360; NobutoshiYamancouchi and Samuel J Cohen ‘Understanding the Incidence of Litigation in Japan: aStructural Analysis' (1991) 25 International Lawyer 443.
114 The role of organized contests, in which the disputants, or their supporters, prove the superiority of their case by physical violence or competition, is noted in Philip HatchGulliver, Disputes and Negotiations (1979) 1.
Black: Alternative Dispute Resolution in Brunei Darussalam headhunting.115 A mediated outcome became an imperative in traditional smallcommunities, for the survival of the group could, in practice, depend upon keepingharmony among its members. These past imperatives can explain some of thecharacteristics of the traditional forms that continue today.
The person who, by tradition, intervenes as a mediator for local community disputesis typically the headman, either of the kampong or village, or of the longhouse. Unlikewestern mediators, headmen also assume preventative roles in their communities, tominimise the transformation of conflict into a dispute. Because of long standingmembership of that community, they can use their cumulative knowledge of peopleand events to deal with grievances that experience suggests could escalate into adispute. When a dispute develops and intervention of a third party is sought, thedisputants approach the headman directly, jointly or singly, or another person in thecommunity can bring the dispute to his attention. Generally, the mediation will beinformal, so that the venue,116 dress,117 and behaviour will not differentiate it. Also aheadman's mediation will occur within a short time frame after notification, often thesame or the next day.118 Western mediation also is identified as being informal,inexpensive and able to occur within a quick time frame. However, this is incomparison to the formality, cost and delays that mark litigation in western nations,rather than to ‘the in situ' availability of traditional mediations.
Identifying and isolating the issues in the dispute is a feature of most mediation.
Whilst the headman typically knows the parties involved, he will seek additionalbackground information on the events and behaviour proximate to the dispute. Aswell as gathering details from the parties, the opinions and accounts of others whoknow them is also ascertained. The headman, either alone or with the assistance ofother elders in the community, will use these to try to facilitate a settlement with thedisputants. If it seems to the headman that one of the disputants has been largelyresponsible for the conflict, this can be identified. In contrast to the western modelwhere there is avoidance of ‘who is right or wrong',119 mild chiding by the headman isacceptable. Once wrongs or mistakes have been isolated and identified, these can beapologised for, and if necessary reparations or appropriate changes made. Providingexamples of ‘good role models'120 and how they may have acted in circumstancessimilar to those of parties in dispute, may be drawn on, to guide one or bothdisputants to a particular outcome. The ‘role model' is informed by the ideological 115 See generally Janet Hoskins, Headhunting and the Social Imagination in Southeast Asia (1996).
116 In a longhouse, the typical venue is one end of the communal gallery or hall, known as the 117 In the past an Iban headman did have distinguishing tattoos and head-dress, but today wears a similar mix of western attire and sarongs as others in the community.
118 In a longhouse, the hearing of the dispute will be on the same day, after the evening meal has been completed.
119 Folberg and Taylor, above n 30 at 10.
120 For example a ‘good' wife, husband, child, friend, worker.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 underpinnings of that group, so that in a Malay context, Muslim role models, whetherMalay or from the times of the Prophet,121 are used. Malay adat with a range ofproverbs,122 metaphors and legal maxims123 can be employed to guide outcomes. Onthe other hand, in an indigenous non-Malay community, such as Iban, Dusun, orMurut, it is the adat, and the heros124 of their own cultural tradition, that inform theprocess.
The headman is chosen still on the basis of his standing and authority in thatcommunity. There is respect and deference accorded to one holding this position. Inboth Malay and Dayak communities the headman is elected. The headman of alonghouse is chosen not through a formal ballot, but through discussion and debateuntil a consensus is reached by the members. Although the position is not hereditary,kinship ties continue to have relevance. Since 1992, the election of a kampongheadman is by secret ballot and is held in accordance with rules prescribed by thegovernment. To nominate for the position, one must be over 30 and less than 65 yearsof age, have good knowledge of Islam, some formal education, and not be involvedwith any political party. Requirements prescribed by the government are part of theongoing bureaucratisation of the role, so that these headmen are having an increasingadministrative and liaison role to perform for the government. This is likely to see ashift in the type of mediation, so that it shifts in the direction of what Moore describedas ‘authoritative mediation',125 so that the headman's more official authority requiresbargaining parameters that allow for what is mandated by the government.
Although there is no specific formal126 training required, other than acculturationthrough observation and participation in community life and experience, headman areexpected to be knowledgeable, and to demonstrate personal qualities seen as desirableby that community.127 Actual knowledge of the particular disputants is regarded asdesirable, and as has been found in traditional Chinese mediations, mediation can beparticularly effective where parties share an on-going relationship, since ‘this forcesco-operation.'128 Equally important is for the mediator to have good knowledge of the 121 The lives of the Prophet, his wives, daughter Fatima, her husband Ali, as well as the Prophet's companions and successors are seen as models for all Muslims.
122 Proverbs and the advice contained in them play an important role in Malay culture in Brunei. See Haji Hakim bin HM Yassin ‘The Folk Literature of Brunei Darussalam' inASEAN Folk Literature: an Anthology (1995) 591-599.
123 Michael Barry Hooker (ed), Readings in Malay Adat Laws (1970).
124 Dayak people have an oral tradition of recounting the exploits of ancestors and deities in epics and legends. Victor T King, The Peoples of Borneo (1993) 234; Benedict Sandin, IbanAdat and Augury (1980).
125 Moore above, n 9, 41.
126 In the western sense of courses taken or evaluative standards achieved.
127 The Iban interviewed identified honesty, fairness and ‘loving' as important personal attributes for their headman.
128 Lokki Woo, ‘Sweet and Sour Law: Does Chinese Mediation Suit the Australian Palate?' (1996) 7 Polemic 91.
Black: Alternative Dispute Resolution in Brunei Darussalam rules to apply129and to employ these to determine what is the right or fair outcome,and then to direct and guide the parties towards a similar solution. An ability topersuade, even to coerce parties by moral imperatives, to a settlement, is an attribute.
The settlement must be an appropriate outcome for the community as a whole as wellas for the actual disputants.130 The group's interests guide the process. This isconsistent with collectivist culture generally where communal and societal interestswill preside over individual party interests. It enables this form of mediation to servean educative role by articulating the social norms and providing acceptablebehaviours and solutions for the disputants and for the community as a whole. In thisway it differs from western mediations where confidentiality and privacy constraints,for the benefit of the individuals involved, limit a wider instructive role. Althoughthere could be ‘take-home' knowledge for individuals131 having experienced a westernmediation, which may provide those individuals with a model for future conflictresolution, the educative component is limited to the parties involved.
Whether traditional mediation by headmen and elders continues will depend onseveral factors. One is whether these communities can maintain their social cohesionand shared values. Aubert found that dissensus, or divergence in values,corresponded with mediation being less amenable in those communities.132 Witty alsoargues that indigenous processes of mediation are characterised by a shared culturalor community identity derived from a shared belief system of rules, obligations,procedures and sanctions.133 The government of Brunei seeks to maintain traditionalvalues, but has chosen an assertive national culture policy aimed at cementing BruneiMalay culture as the source of values and national identity. This is on the basis that‘undeniably, the Brunei Malay culture is the soul of the Brunei national culture' andcan serve to ‘unite different ethnic groups, and defend indigenous values and interestsagainst harmful foreign influence'.134 Whilst it may reinforce cohesion amongst theMalays, so there is no discrepancy between internal moral values and the externalnational code of ethics; for others such as non-Malay indigenous Dusun, Iban, Murutand Penan absorption into the Malay is at odds with their culture, identity and values.
As conversions occur their social cohesion fractures, and traditional ways of socialcontrol become less viable. Dispute resolution in these communities requires anassumption that there are benefits from adherence to the traditional means over that 129 This is ‘rules' in the broadest sense and could include adat, local government regulations, syariah (in a Malay kampong) or augury in an Iban community.
130 This is a feature of traditional mediation generally see: Sally Engle Merry, ‘The Social Organization of Mediation in Non-industrial Societies' in Robert L Abel (ed) The Politics ofInformal Justice (1982).
131 Folberg and Taylor, above n 30, 9.
132 Vilhelm Aubert, ‘Competition and Dissensus: Two Types of Conflict and Conflict Resolution' (1963) 7 Journal of Conflict Resolution, 26.
133 Cathie J Witty, Mediation and Society: Conflict management in Lebanon (1980) 13.
134 Dato Paduka Haji Matussin bin Omar, above n 22, 12.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 of the external institutions of courts, police and lawyers. Unless the traditional is seenas a legitimate and effective process relevant to the issues arising in the community,other options will be chosen. In addition to the dissonance with Islamic Malay values,it has been noted that some of the non-Malay groups are finding traditional adatgenerally ineffective in dealing with modern problems and issues.135 Linked to shared values is the need for an on-going personal relationship andinteraction between disputants.136 Traditional and homogenous communities, as existin the kampongs and longhouses, have complex kinship networks with strongreciprocal social and economic ties among their members. When these break down,usually with younger members leaving for educational or employment opportunitiesin urban centres, traditional mediation declines. Whilst those who leave may retain apreference for consensual resolution, the previously reflexive intervention of theheadman is not available and the urban environment is generally less conducive to it.
This is because social and economic independence and anonymity replace theconsistent personal interdependencies and kin relationships of the traditionalcommunity. It is a pattern that has been evident in many societies. Even in earlyAmerica, in the small New England colonial villages interwoven with tight socialnetworks, consensual and mediated processes thrived.137 The multiplicity of socialrelations and the need for cooperation and trust did not break down until commercialactivity brought about the growth of towns, together with an influx of new personswith different backgrounds and values, and expansion in commercial dealings so thatpeople were doing business with strangers.
A further way in which traditional mediation can be undermined is by governmentinterference and regulation. This introduces changes to both the functions and roleascribed for the headman. The bureaucratisation of their role, and the increasedreliance upon the government for delineating functions, can weaken the relationshipbetween community and the headman. Prior reliance on community consensus forobtaining and maintaining the position is being supplemented by the government'sconfidence in the headman's ability to fulfil these and other tasks. Headmen nowreceive remuneration from the government, and in turn, government policy informstheir role.
Lastly, adherence to traditional means can be affected by structural changes in thesociety that either decrease its effectiveness, or perceptions of it, through comparisonwith newer or competing processes. Just as takhim was seen to be less effective oncethe new option of counselling services of the department of Religious Affairs wasintroduced, so too could traditional mediation be seen as ineffective as other options 135 Jay H Berstein, ‘The Deculturation of the Brunei Dusun' in Robert L Winzeler (ed) Indigenous Peoples and the State: Politics, Land, and Ethnicity in the Malayan Peninsula andBorneo (1997) 159 –178.
136 Witty, above n 13e, 10.
137 B Mann, Neighbours and Strangers: Law and Community in Early Connecticut (1987).
Black: Alternative Dispute Resolution in Brunei Darussalam are presented, or tested. Now that the Syariah Courts are required to refer particulardisputes for arbitration by hakam, this structural change may have a reverse effect,back to the use of Islamic arbitration. People make differential selections on how tosettle disputes and will select an option, whether traditional or imported, which bestsuits their needs or purpose at the time.
Role of Western Mediation
To date, the role for western mediation in Brunei has been limited. Apart from theprovisions dealing with it as a condition precedent to arbitration under specificsections of the Arbitration Act (Cap 173), and reference to conciliation in the TradesDispute Enactment (1961) for employment and industrial disputes, there is scantstatutory recognition.138 The use of mediation in commercial and other disputes wouldbe a matter of contract. There are no centres providing mediation, and it was notwidely regarded as a service to be offered by the existing law firms. This may bebecause lawyers in Brunei see this type of mediation as less effective than otherprocesses offered, or that the clients who come to law firms do so with the expectationof more typical legal services being provided. It did not seem to be the case thatlawyers felt they needed more training in mediation techniques, but rather that theirarea of expertise lay in traditional adversarial-based lawyering services. BecauseBrunei does not have a law society nor access to the related continuing legal educationprograms run by such societies, lawyers in Brunei may have had less exposure tocourses and information on ADR and mediation. However, all lawyers have had tohave been trained in other common law countries (particularly England andMalaysia)139 and graduates in the last decade would have had acquired knowledgeand training in mediation as part of their law courses. Additionally, as intervention byway of traditional mediation is taking place informally in the social setting in whichmost disputes arise, it is likely to be viewed as a more appropriate forum than alawyer's office. There was anecdotal evidence supporting this latter view. One lawyerin a major city practice responded to a question as to whether his firm offeredmediation for their clients by asking: ‘Isn't that what friends and family are for?'Mediation, as an ADR process provided by lawyers or others so trained, wasgenerally dismissed as not needed in Brunei Darussalam.
This has been the experience of bodies that have considered the promotion of westernmediation. A British based international firm140 currently promoting arbitration for theconstruction and engineering sector also offers services in conciliation, mediation anddispute review boards. However, their prime focus to date has been in the selling of 138 In contrast Australian States have legislation providing opportunities for litigants to use ADR processes, rather than proceeding to trial.
139 Brunei has no Law School or other legal training centres providing for admission to the common law courts of Brunei. However, a Diploma in Syariah Law has commenced at thelocal university.
140 See above n 59.
Published by ePublications@bond, 2001 Bond Law Review, Vol. 13 [2001], Iss. 2, Art. 4 arbitration, with the promotion of the other ADR services a possibility for the future.
Other organizations have run seminars and courses on mediation targeted at lawyersand the government of Brunei. These were referred to by several lawyers as ‘visitsfrom the lovey people', indicating a sceptical reaction. In the mid 1990s, APECdetermined that it should assume a role in providing additional dispute resolutionservices for the region by creating a Dispute Mediation Service (DMS),141 thatemphasizes mediation rather than arbitration, and which would be voluntary andnon-adversarial in nature. The service was to be made available to APEC governmentsand to private entities.142 However, it did not become operational and the MediationServices Expert Group formed to establish it has been disbanded.
The experience in Brunei bears out the pattern elsewhere in the world, which Galantersummed up in the following terms: ‘Courts resolve only a small fraction of alldisputes that come to their attention. These are only a small fraction of the disputesthat might conceivably be brought to court and an even smaller fraction of the wholeuniverse of disputes'.143 The collectivist nature of Brunei society maintains thepreference for avoiding confrontation and for employing consensual and lessadversarial means of dispute resolution. Certainly, litigation and settlement prior totrial are used by lawyers in Brunei Darussalam, but their occurrence per head ofpopulation remain small, and their role is more clearly delineated in commercial andbusiness transactions rather than in family and community issues where the majorityof disputes arise. This is not surprising given that the colonial regime's priority was tosecure the certainty and familiarity English derived laws and courts could give toBritish commercial endeavours; family, personal and community matters, on the otherhand, could continue to be sorted out by the traditional means.
Arbitration is also offered by lawyers and is available for a range of commercial andconstruction disputes. As its role is seen as an alternative form of litigation, and giventhe general level of satisfaction and confidence in the courts, this mitigates against itsuse by Bruneians. International companies operating in Brunei are more in tune witharbitration than local Bruneian ones. In keeping with the collectivist perspective,Bruneians wherever possible want to avoid adversarial means, so that business andsocial relationships can be preserved. The limited utilization of arbitration accordswith the findings of APEC research in the region.144 The small role that Islamicarbitration had been playing in marital and family disputes has been revitalised by theEmergency (Islamic Family Law) Order. Given this, and the increasing Islamisation of 141 Protocol on ASEAN Dispute Settlement Mechanism was agreed to in 1996.
142 Valerie Hughes, Chair, Dispute Mediation Experts' Group, APEC International 143 Marc Galanter, ‘Justice in Many Rooms: Courts, Private Ordering and Indigenous Law' (1981) 19 Journal of Legal Pluralism and Unofficial Law 1, 24.
144 See above n 66.
Black: Alternative Dispute Resolution in Brunei Darussalam commercial and administrative practices throughout Brunei Darussalam, it is likelythat traditional takhim may also become an option for commercial and financialdisputes, as it is in the Middle-east.
Most disputes occur in the local community and continue to be resolved there. Thecontinuance in the twenty first century of the kampong and longhouse as the basicsocial entities and as the smallest units of local administration, together with theretention and recognition of the position of headmen, has assisted in long-standingpractices and values being retained. The more remote and removed a community isfrom the capital city, and the stronger the social and kinship ties, the greater is theadherence to traditional and collectivist ways of keeping harmony. The mindset is tocooperate rather than to confront, and the assistance of a traditional mediator isculturally conditioned to feel right. Going to a lawyer, or to court, is an option whenall else fails. Although Malays, Chinese and the indigenous non-Malays all share apreference for informal and consensual means of dispute resolution, cultural andstructural factors combine to maintain traditional avenues for this, so far restrictingthe scope for western mediation. Whether the incremental modernization andwesternization in Brunei will impact on culture and tradition in a way that lessens therelational and collective foundations seems unlikely. Brunei vigorously resists whatare seen as the counter-cultural forces of the west, prioritising instead retention of the‘inherent norms of our own internal lifestyle that is collectively practiced by oursociety'.145 By rejecting the concept of individualism on the basis that in the west ‘it hasbeen the prime cause of moral decadence, degradation of social values and culturaldemoralization, disrespect of elders, family and authority',146 Brunei is turning toIslam to enhance its Malay culture and illuminate its future direction. This means thatas well as strengthening the role of the Syariah Courts, alternative means compatiblewith Islamisation will be more accepted than offerings from the modern ADRmovement.
145 Abdul Latif bin Haji Ibrahim, ‘Cultural and Counter-cultural Forces in Contemporary Brunei Darussalam' in Thumboo (ed), above n 23, 23.
Published by ePublications@bond, 2001

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