TOSHIBA ELEVATOR (MALAYSIA) SDN BHD ENG HAN ENGINEERING SDN BHD

TOSHIBA ELEVATOR (MALAYSIA) SDN BHD ENG HAN ENGINEERING SDN BHD

The High Court found the Arbitrator addressed the disputes within the scope of the submission, considered the relevant evidence and contractual provisions, did not commit a material breach of natural justice or public policy and therefore the Award could not be set aside under section 37; errors of fact or law identified did not justify interference with the arbitral award.

Citation
WA-24C(ARB)-51-12/2022 (Mahkamah Tinggi)
Parties
Plaintiff (os 44); Defendant (os 51): Eng Han Engineering Sdn Bhd; Defendant (os 44); Plaintiff (os 51): Toshiba Elevator (Malaysia) Sdn Bhd
Court
ARB
Jurisdiction
Malaysia
Judgment Date
26 June 2023
Case Number
WA-24C(ARB)-51-12/2022 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (arbitration Challenge and Enforcement) / Decision on Applications to Set Aside and to Enforce Arbitral Award (grounds of Judgment)
Outcome
Originating Summons No. WA-24C(ARB)-44-10/2022 (OS 44) dismissed with costs; Originating Summons No. WA-24C(ARB)-51-12/2022 (OS 51) granted in part in terms of prayers 2(a)–(e); Enclosure 5 of OS 51 dismissed without cost.
Legal Topics
Setting Aside Arbitral Award, Enforcement of Arbitral Award, Natural Justice, Public Policy, Extension of Time, Liquidated Damages, Acts of Prevention
Source Language
Malay/English
Arbitration Construction Civil Procedure Contract Setting Aside Arbitral Award Enforcement of Arbitral Award Natural Justice Public Policy +3 more

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Parties

Eng Han Engineering Sdn Bhd

Plaintiff (os 44); Defendant (os 51)

Toshiba Elevator (Malaysia) Sdn Bhd

Defendant (os 44); Plaintiff (os 51)

Procedural Posture

Originating Summons (arbitration Challenge and Enforcement) / Decision on Applications to Set Aside and to Enforce Arbitral Award (grounds of Judgment)

Legal Issues

  1. 1 Whether the Final Arbitration Award dated 30.8.2022 should be set aside under s37 Arbitration Act 2005 for breach of natural justice
  2. 2 Whether the Award is in conflict with the public policy of Malaysia
  3. 3 Whether the Arbitrator exceeded the scope of the submission to arbitration or relied on extraneous material without giving parties opportunity to address it

Ratio Decidendi

The High Court found the Arbitrator addressed the disputes within the scope of the submission, considered the relevant evidence and contractual provisions, did not commit a material breach of natural justice or public policy and therefore the Award could not be set aside under section 37; errors of fact or law identified did not justify interference with the arbitral award.

Court Disposition

Originating Summons No. WA-24C(ARB)-44-10/2022 (OS 44) dismissed with costs; Originating Summons No. WA-24C(ARB)-51-12/2022 (OS 51) granted in part in terms of prayers 2(a)–(e); Enclosure 5 of OS 51 dismissed without cost.

Orders

  • OS 44 dismissed with costs to Toshiba
  • Order in terms granted for prayers 2(a) to 2(e) in enclosure 1 of OS 51 (enforcing the Final Arbitration Award and entering judgment as prayed)