Travel Reference
In-Depth Information
travel operators and holidaymakers in Malaysia
N.C. Abdullah
Faculty of Law, Universiti Teknologi MARA, Shah Alam, Malaysia
ABSTRACT: The commercial travel agencies and travel agencies which offer
umrah
and
hajj
recorded
the highest disputed cases in the Tribunal for Consumer Claims since 2010-2013.This is attributed to the
fact that the Consumer Protection Act 1999 allows the President of the Tribunal for Consumer Claims
(TCC) to assist holidaymakers and travel operators in negotiating an agreed settlement in relation to
their disputes. Progressing on the same tone, the courts in Malaysia have embarked on the practice of
mediation as one of the forms of alternative dispute resolution (ADR) through two choices of media-
tion; judge-led mediation or mediation to be conducted by the Malaysian Mediation Centre (MMC)
under the auspices of the Malaysian Bar Council. In judge-led mediation, if mediation is successful,
the judge mediating shall record a consent judgment on the terms agreed by holidaymakers and holiday
providers. In mediation by MMC, a successful mediation will be reduced into writing in a settlement
agreement signed by the holiday provider and holiday maker and similar to the judge-led mediation, the
holiday provider and holidaymakers are then mandated to record the terms of settlement as a consent
judgment. Whereas, in the case where the holiday provider and holidaymaker fail to reach a settlement
in the judge-led mediation, the case will revert to the original judge to hear and complete the case. It is
also argued that ADR can be used to utilize administrative influence, formally or informally, to make the
ADR process efficient. In view of the limited literature pertaining to disputes between holidaymakers
and holiday provides, using the qualitative approach, this paper explores the likelihood of the judge-led
mediation in court and administrative ADR to overtake the popularity of the TCC in view of the regu-
latory limitation of claims by holidaymakers and the prohibition of legal representation by the holiday
operators and holidaymakers in the TCC.
Keywords
:
Alternative dispute resolution, tribunal for consumer claims, court, holidaymakers, holiday
providers
1 INTRODUCTION
to the new philosophy of court-managed system
of litigation. Active case management includes,
inter alia, encouraging holiday makers and holi-
day providers to use an alternative dispute reso-
lution (ADR) such as mediation by a third party.
A mediation which results in a consent judgment
between holidaymakers and holiday providers
is final and certainly avoid prolonged arguments
and reduce tension between both parties. Progress-
ing on the same tone, the courts in Malaysia has
embarked on the practice of mediation as a one of
the forms of ADR through the issuance of a Prac-
tice Direction No 5 of 2010, Practice Direction on
Mediation (herein after referred to as the PD) by
the Chief Registrar of the Federal Court of Malay-
sia and came into effect on 16 August 2010. The
PD covers all on-going civil litigation pending in
the High Court and the Subordinate Courts. The
Judge to whom the action has been assigned shall
make such orders and give such directions as to
Section 107(1) of the Consumer Protection Act
1999 allows the President of the Tribunal for Con-
sumer Claims to assist parties in negotiating an
agreed settlement (not exceeding RM 25,000) in
relation to their claim. The provision implies the
application of alternative dispute resolution (ADR)
in the Tribunal for Consumer Claims (herein after
refers to TCC). Since its introduction, the com-
mercial travel agencies and travel agencies which
offer
umrah
and
hajj
recorded the highest disputed
cases since 2010-2013, where the total number of
cases, within the three years are, 947 cases relat-
ing to travel agencies and 1156 cases concerning
umrah
and
hajj
(TCC, 2013). The application of
ADR in the court system is also significant nowa-
days since in many jurisdictions, courts are mov-
ing towards active case management which moves
the traditional parties-activated adversarial system
Search WWH ::
Custom Search