KNM PROCESS SYSTEMS SDN. BHD. 1. ) CECA GOLD COMPANY LIMITED 2. ) MBSB BANK BERHAD

KNM PROCESS SYSTEMS SDN. BHD. 1. ) CECA GOLD COMPANY LIMITED 2. ) MBSB BANK BERHAD

Plaintiff may apply to the High Court under s11 notwithstanding a contractual multi-tier dispute resolution clause where clause permits court relief and s11 confers a statutory right; however, the court must refuse interim relief where the applicant fails to establish the required statutory and equitable thresholds — here the plaintiff breached the EPC Contract prior to COVID measures, the PB is an unconditional on-demand bond payable by the guarantor (2nd Defendant) and 2nd Defendant is not subject to s11, Singapore law governs the EPC Contract and expert Singapore opinion supported validity of the demand (COTMA did not invalidate it), s7 Act 829 was inapplicable, and plaintiff failed to...

Citation
BA-24C(ARB)-3-05/2021 (Mahkamah Tinggi)
Parties
Plaintiff: KNM Process Systems Sdn. Bhd.; 1st Defendant: CECA Gold Company Limited; 2nd Defendant: MBSB Bank Bhd.
Court
ARB
Jurisdiction
Malaysia
Judgment Date
4 September 2021
Case Number
BA-24C(ARB)-3-05/2021 (Mahkamah Tinggi)
Procedural Posture
Arbitration — Interim Measures / Judgment on Originating Summons (inter Partes)
Outcome
Originating summons dismissed with costs; interim injunctions discharged
Legal Topics
S11 Arbitration Act 2005 Interim Measures, Performance Bond on Demand, Multi Tier Dispute Resolution Clauses, Choice of Law (singapore), Temporary COVID 19 Relief Statutes (act 829; COTMA Singapore), Force Majeure, Interim Injunctions, Ex Parte Disclosure Obligations
Source Language
Malay/English
Arbitration Contract Construction Bank Guarantees Conflict of Laws Statutory Interpretation Public International/sanctions Law S11 Arbitration Act 2005 Interim Measures +7 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 14 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

KNM Process Systems Sdn. Bhd.

Plaintiff

CECA Gold Company Limited

1st Defendant

MBSB Bank Bhd.

2nd Defendant

Procedural Posture

Arbitration — Interim Measures / Judgment on Originating Summons (inter Partes)

Legal Issues

  1. 1 Whether plaintiff must exhaust contractual multi-tier dispute resolution before applying to High Court under s11 Arbitration Act 2005
  2. 2 Whether Singapore law clause governs validity of demand on performance bond and whether Singapore's COTMA invalidates the demand
  3. 3 Whether s7 of Malaysia's Act 829 applies to excuse performance or invalidate a demand under the performance bond

Ratio Decidendi

Plaintiff may apply to the High Court under s11 notwithstanding a contractual multi-tier dispute resolution clause where clause permits court relief and s11 confers a statutory right; however, the court must refuse interim relief where the applicant fails to establish the required statutory and equitable thresholds — here the plaintiff breached the EPC Contract prior to COVID measures, the PB is an unconditional on-demand bond payable by the guarantor (2nd Defendant) and 2nd Defendant is not subject to s11, Singapore law governs the EPC Contract and expert Singapore opinion supported validity of the demand (COTMA did not invalidate it), s7 Act 829 was inapplicable, and plaintiff failed to...

Court Disposition

Originating summons dismissed with costs; interim injunctions discharged

Orders

  • Originating summons dismissed
  • Prayer 1 (declaration that demand was invalid) dismissed