IFCI LIMITED (CIN: L74899DL1993GO1053677) ARCHIPELAGO INSURANCE LIMITED (NO. SYARIKAT: LL09355)

IFCI LIMITED (CIN: L74899DL1993GO1053677) ARCHIPELAGO INSURANCE LIMITED (NO. SYARIKAT: LL09355)

The 2nd defendant twice requested extensions to file its defence and subsequently filed and served its statement of defence before applying for a stay; those actions constitute "other steps in the proceedings" under s10(1) and demonstrate election to proceed in court and waiver of the right to seek a mandatory stay to refer to arbitration; therefore the High Court's grant of a stay under s10(1) was erroneous and is set aside.

Citation
W-02(IM)(NCC)-1854-12/2020 (Mahkamah Rayuan)
Parties
Appellant (plaintiff in High Court): IFCI Limited; 1st Defendant: Bishopgate Capital Limited; Respondent (2nd Defendant): Archipelago Insurance Limited
Court
IM
Jurisdiction
Malaysia
Judgment Date
14 September 2021
Case Number
W-02(IM)(NCC)-1854-12/2020 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal / Appeal From High Court Decision Granting Stay Under Arbitration Act 2005 S10(1)
Outcome
Appeal allowed; High Court decision granting stay under s10(1) set aside
Legal Topics
Stay of Proceedings, Arbitration Agreement, Waiver of Arbitration, Extension of Time, Submission to Jurisdiction, Split Litigation
Source Language
Malay/English
Arbitration Civil Procedure Contract Insurance Law Stay of Proceedings Arbitration Agreement Waiver of Arbitration Extension of Time +2 more

Case Brief

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Parties

IFCI Limited

Appellant (plaintiff in High Court)

Bishopgate Capital Limited

1st Defendant

Archipelago Insurance Limited

Respondent (2nd Defendant)

Procedural Posture

Civil Appeal / Appeal From High Court Decision Granting Stay Under Arbitration Act 2005 S10(1)

Legal Issues

  1. 1 Whether the 2nd defendant took "any other steps in the proceedings" within s10(1) of the Arbitration Act 2005
  2. 2 Whether requesting extensions and filing/serving a statement of defence constitutes waiver of right to arbitrate
  3. 3 Whether reservation of rights in pleadings preserves right to arbitrate if steps taken

Ratio Decidendi

The 2nd defendant twice requested extensions to file its defence and subsequently filed and served its statement of defence before applying for a stay; those actions constitute "other steps in the proceedings" under s10(1) and demonstrate election to proceed in court and waiver of the right to seek a mandatory stay to refer to arbitration; therefore the High Court's grant of a stay under s10(1) was erroneous and is set aside.

Court Disposition

Appeal allowed; High Court decision granting stay under s10(1) set aside

Orders

  • High Court order granting stay of proceedings under Arbitration Act 2005 s10(1) set aside
  • Appeal allowed