CRSE SDN BHD (DULU DIKENALI SEBAGAI COLAS RAIL SYSTEM ENGINEERING SDN BHD) TRANSGRID VENTURES SDN BHD

CRSE SDN BHD (DULU DIKENALI SEBAGAI COLAS RAIL SYSTEM ENGINEERING SDN BHD) TRANSGRID VENTURES SDN BHD

The Court held it lacked jurisdiction to hear the s.42 application because s.42 had been repealed and the right to invoke it does not apply to awards published after the repeal (8.5.2018); alternatively, even accepting vesting arguments, purposive interpretation supports retrospective effect so s.42 is unavailable...

Source-derived case information.

Citation
WA-24C(ARB)-7-01/2020 (Mahkamah Tinggi)
Parties
Plaintiff/defendant (various Suits): Transgrid Ventures Sdn Bhd; Defendant/plaintiff (various Suits): Colas Rail System Engineering Sdn Bhd (now CRSE Sdn Bhd)
Court
ARB
Jurisdiction
Malaysia
Judgment Date
11 January 2021
Case Number
WA-24C(ARB)-7-01/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (arbitration Related) / Judgment (grounds of Judgment Delivered)
Outcome
s.42 application dismissed for want of jurisdiction; Setting Aside Application dismissed; Enforcement Application allowed (award recognised and enforced)
Legal Topics
Jurisdiction to Hear S.42 Arbitration Act 2005 References, Effect of Repeal of Statutory Remedy (s.42), Setting Aside Arbitral Awards (s.37), Enforcement of Arbitral Awards (s.38), Illegality as Defence, Breach of Natural Justice, Costs Orders
Arbitration Law Contract Law Civil Procedure Public Policy Administrative Law (natural Justice) Enforcement of Foreign/domestic Awards Jurisdiction to Hear S.42 Arbitration Act 2005 References Effect of Repeal of Statutory Remedy (s.42) +5 more

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Parties

Transgrid Ventures Sdn Bhd

Plaintiff/defendant (various Suits)

Colas Rail System Engineering Sdn Bhd (now CRSE Sdn Bhd)

Defendant/plaintiff (various Suits)

Procedural Posture

Originating Summons (arbitration Related) / Judgment (grounds of Judgment Delivered)

Legal Issues

  1. 1 Whether the High Court had jurisdiction to hear a reference under repealed s.42 Arbitration Act 2005
  2. 2 Whether the right to refer questions of law under s.42 vested at commencement of arbitration or crystallised on publication of award
  3. 3 Whether the arbitrator exceeded jurisdiction by deciding matters beyond the submission to arbitration (s.37(1)(a)(iv)&(v))

Ratio Decidendi

The Court held it lacked jurisdiction to hear the s.42 application because s.42 had been repealed and the right to invoke it does not apply to awards published after the repeal (8.5.2018); alternatively, even accepting vesting arguments, purposive interpretation supports retrospective effect so s.42 is unavailable for awards published on/after 8.5.2018. On the merits under s.37, the Court found the arbitrator did not act beyond his jurisdiction and there was no material breach of natural justice; accordingly the setting aside application was dismissed and the enforcement application was allowed.

Court Disposition

s.42 application dismissed for want of jurisdiction; Setting Aside Application dismissed; Enforcement Application allowed (award recognised and enforced)

Orders

  • Originating Summons WA-24C(ARB)-54-12/2019 (s.42 application) dismissed for lack of jurisdiction
  • Originating Summons WA-24C(ARB)-5-01/2020 (Setting Aside Application) dismissed with costs to CRSE in the sum of MYR 20,000.00 subject to allocatur