COCKETT MARINE OIL (ASIA) PTE LTD MISC BERHAD

COCKETT MARINE OIL (ASIA) PTE LTD MISC BERHAD

The Court of Appeal held the Learned Judicial Commissioner erred by making a conclusive factual finding that the alleged arbitration clause was not binding; there was a prima facie case that Cockett’s terms (including the arbitration clause) were incorporated by reference via hyperlink and by the Confirmation of Supply, and accordingly the High Court should have stayed proceedings under s.10 AA 2005 and referred the dispute to arbitration; the High Court decision dismissing the stay and granting the anti-arbitration injunction was set aside and the appeals allowed with costs.

Citation
W-02(IM)(ADM)-251-02/2021 (Mahkamah Rayuan)
Parties
Appellant / Defendant in First Instance: Cockett Marine Oil (Asia) Pte Ltd; Respondent / Plaintiff in First Instance: MISC Berhad
Court
IM
Jurisdiction
Malaysia
Judgment Date
4 January 2022
Case Number
W-02(IM)(ADM)-251-02/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (admiralty in Personam Origin) / Appeal Heard in the Court of Appeal; Challenge to High Court Decisions on Stay and Anti Arbitration Injunction
Outcome
Appeals allowed. Decisions of the High Court (dismissal of stay and grant of anti-arbitration injunction) set aside. Stay of proceedings ordered and dispute referred to arbitration. Costs awarded to Appellant.
Legal Topics
Existence and Incorporation of Arbitration Agreement, Stay of Proceedings Under S.10 Arbitration Act 2005, Anti Arbitration Injunctions (order 29 R.1 Roc), Judicial Vs Arbitral Determination of Jurisdiction (s.18 AA 2005), Incorporation by Reference (hyperlink), Conduct Amounting to Submission to Court
Source Language
Malay/English
Arbitration Admiralty Contract Law Civil Procedure Injunctions Existence and Incorporation of Arbitration Agreement Stay of Proceedings Under S.10 Arbitration Act 2005 Anti Arbitration Injunctions (order 29 R.1 Roc) +3 more

Case Brief

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Parties

Cockett Marine Oil (Asia) Pte Ltd

Appellant / Defendant in First Instance

MISC Berhad

Respondent / Plaintiff in First Instance

Procedural Posture

Civil Appeal (admiralty in Personam Origin) / Appeal Heard in the Court of Appeal; Challenge to High Court Decisions on Stay and Anti Arbitration Injunction

Legal Issues

  1. 1 Whether a prima facie arbitration agreement existed between the parties
  2. 2 Whether the defendant's terms containing an arbitration clause were incorporated by reference (hyperlink) into the Supply Contract
  3. 3 Whether the High Court should stay proceedings under s.10 AA 2005 or refer the issue to the arbitral tribunal under s.18 AA 2005

Ratio Decidendi

The Court of Appeal held the Learned Judicial Commissioner erred by making a conclusive factual finding that the alleged arbitration clause was not binding; there was a prima facie case that Cockett’s terms (including the arbitration clause) were incorporated by reference via hyperlink and by the Confirmation of Supply, and accordingly the High Court should have stayed proceedings under s.10 AA 2005 and referred the dispute to arbitration; the High Court decision dismissing the stay and granting the anti-arbitration injunction was set aside and the appeals allowed with costs.

Court Disposition

Appeals allowed. Decisions of the High Court (dismissal of stay and grant of anti-arbitration injunction) set aside. Stay of proceedings ordered and dispute referred to arbitration. Costs awarded to Appellant.

Orders

  • Allow Appeals No. W-02(IM)(ADM)-251-02/2021 and W-02(IM)(ADM)-252-02/2021
  • Set aside the High Court decisions dismissing the stay application and granting the anti-arbitration injunction