GISE KAM KWAN INTERNATIONAL TRADE LTD Antara Steel Mills Sdn. Bhd.

GISE KAM KWAN INTERNATIONAL TRADE LTD Antara Steel Mills Sdn. Bhd.

The Court of Appeal held the recital reference to the main agreements did not incorporate the arbitration clause into the TSA because the operative part of the TSA contains a new and differently worded dispute resolution clause (Clause 6) referring to taking 'legal action' and recovering 'court fee', indicating the parties intended court recovery proceedings and that the TSA is a standalone settlement superseding the main agreements; accordingly the High Court's stay under s10 AA2005 was set aside and the matter remitted to the High Court.

Citation
W-02(IM)(NCvC)-2329-12/2022 (Mahkamah Rayuan)
Parties
Appellant / Plaintiff: Gise Kam Kwan International Trade Ltd; Respondent / Defendant: Antara Steel Mills Sdn Bhd
Court
IM
Jurisdiction
Malaysia
Judgment Date
30 October 2023
Case Number
W-02(IM)(NCvC)-2329-12/2022 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (arbitration Stay Application) / Court of Appeal Judgment on Appeal From High Court S10 Arbitration Act 2005 Stay Decision
Outcome
Appeal allowed; High Court order granting stay set aside; matter remitted to High Court for hearing and case management.
Legal Topics
Incorporation by Reference, Doctrine of Separability, Kompetenz‑kompetenz, Stay of Proceedings Under S10 AA2005, Interpretation of Recitals Vs Operative Clauses, Dispute Resolution Clause Drafting, Costs and Recoverability
Source Language
Malay/English
Arbitration Contract Civil Procedure Incorporation by Reference Doctrine of Separability Kompetenz‑kompetenz Stay of Proceedings Under S10 AA2005 Interpretation of Recitals Vs Operative Clauses +2 more

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Parties

Gise Kam Kwan International Trade Ltd

Appellant / Plaintiff

Antara Steel Mills Sdn Bhd

Respondent / Defendant

Procedural Posture

Civil Appeal (arbitration Stay Application) / Court of Appeal Judgment on Appeal From High Court S10 Arbitration Act 2005 Stay Decision

Legal Issues

  1. 1 Whether the arbitration clause in the 2009 and 2013 main agreements was incorporated by reference into the Termination and Settlement Agreement (TSA)
  2. 2 Whether the TSA is a standalone agreement that supersedes the main agreements
  3. 3 Whether Clause 6's reference to 'take legal action' and 'court fee' manifests a clear intention to litigate in court rather than arbitrate

Ratio Decidendi

The Court of Appeal held the recital reference to the main agreements did not incorporate the arbitration clause into the TSA because the operative part of the TSA contains a new and differently worded dispute resolution clause (Clause 6) referring to taking 'legal action' and recovering 'court fee', indicating the parties intended court recovery proceedings and that the TSA is a standalone settlement superseding the main agreements; accordingly the High Court's stay under s10 AA2005 was set aside and the matter remitted to the High Court.

Court Disposition

Appeal allowed; High Court order granting stay set aside; matter remitted to High Court for hearing and case management.

Orders

  • Set aside the High Court order granting a stay of proceedings under s 10 Arbitration Act 2005
  • Remit the matter to the High Court for hearing; case management fixed (as recorded) on 6.11.2023