MALAYSIA BIO-XCELL SDN BHD LEBAS TECHNOLOGIES SDN BHD

MALAYSIA BIO-XCELL SDN BHD LEBAS TECHNOLOGIES SDN BHD

Section 39(1)(a)(vii) of the Arbitration Act 2005 permits refusal, adjournment or suspension of recognition or enforcement where the award has not yet become binding; section 39(2) grants the court discretion to adjourn and order security. On the facts the parties had consensually referred related issues concerning ownership and delivery of equipment to a 2nd arbitration and agreed terms linking that arbitration to the Award; those facts established that the Award was not yet binding within s39(1)(a)(vii). The High Court erred in refusing to exercise the discretion. The recognition/enforcement application should be adjourned and sums held in stakeholder pending disposal of the 2nd...

Citation
W-02(IM)(A)-1532-07/2018 didengar bersama W-02(C)(A)-1533-07/2018 (Mahkamah Rayuan)
Parties
Appellant / Defendant (high Court): Malaysian Bio-Xcell Sdn Bhd; Respondent / Plaintiff (high Court): Lebas Technologies Sdn Bhd
Court
IM
Jurisdiction
Malaysia
Judgment Date
14 January 2019
Case Number
W-02(IM)(A)-1532-07/2018 didengar bersama W-02(C)(A)-1533-07/2018 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (arbitration Enforcement) / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeals allowed; High Court decisions set aside.
Legal Topics
Recognition and Enforcement of Arbitral Awards, Stay/suspension of Enforcement, Section 39 Arbitration Act 2005, Estoppel, Security Pending Arbitration
Source Language
Malay/English
Arbitration Civil Procedure Contract Law Enforcement of Judgments Recognition and Enforcement of Arbitral Awards Stay/suspension of Enforcement Section 39 Arbitration Act 2005 Estoppel +1 more

Case Brief

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Parties

Malaysian Bio-Xcell Sdn Bhd

Appellant / Defendant (high Court)

Lebas Technologies Sdn Bhd

Respondent / Plaintiff (high Court)

Procedural Posture

Civil Appeal (arbitration Enforcement) / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether a court may refuse, adjourn or suspend recognition or enforcement of an arbitral award under section 39(1)(a)(vii) of the Arbitration Act 2005 on the basis the award has not yet become binding
  2. 2 Whether section 39(2) permits the court to adjourn decision and order security or suspension pending setting aside/suspension applications or parallel arbitration
  3. 3 Whether the 1st arbitration award was 'not yet binding' in light of consensual referral of related equipment issues to a 2nd arbitration and estoppel arguments

Ratio Decidendi

Section 39(1)(a)(vii) of the Arbitration Act 2005 permits refusal, adjournment or suspension of recognition or enforcement where the award has not yet become binding; section 39(2) grants the court discretion to adjourn and order security. On the facts the parties had consensually referred related issues concerning ownership and delivery of equipment to a 2nd arbitration and agreed terms linking that arbitration to the Award; those facts established that the Award was not yet binding within s39(1)(a)(vii). The High Court erred in refusing to exercise the discretion. The recognition/enforcement application should be adjourned and sums held in stakeholder pending disposal of the 2nd...

Court Disposition

Appeals allowed; High Court decisions set aside.

Orders

  • Enclosure 9 allowed in terms of prayer (1) to adjourn decision on recognition/enforcement under enclosure (1) pending disposal of the 2nd Arbitration
  • Respondent's application for recognition/enforcement (enclosure 1) to be adjourned pending disposal of the 2nd Arbitration