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

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

The Court held it lacked jurisdiction to hear the s 42 application because s 42 had been repealed and is not available for awards published on or after 8.5.2018; alternatively, even if s 42 vested at arbitration commencement, purposive interpretation could support retrospective effect of repeal. On the merits, the arbitrator acted within jurisdiction in deciding the LoA was tainted by illegality based on pleaded assertions and evidence; there was no breach of natural justice sufficient to set aside the award. Consequently the setting aside application was dismissed and the enforcement application was allowed.

Citation
WA-24C(ARB)-5-01/2020 (Mahkamah Tinggi)
Parties
Plaintiff (in OS No. WA 24 C(arb) 54 12/2019 and OS No. WA 24 C(arb) 5 01/2020; Defendant in OS No. WA 24 C(arb) 7 01/2020): Transgrid Ventures Sdn Bhd; Defendant (in OS No. WA 24 C(arb) 54 12/2019 and OS No. WA 24 C(arb) 5 01/2020; Plaintiff in OS No. WA 24 C(arb) 7 01/2020): Colas Rail System Engineering Sdn Bhd (now known as CRSE Sdn Bhd)
Court
ARB
Jurisdiction
Malaysia
Judgment Date
11 January 2021
Case Number
WA-24C(ARB)-5-01/2020 (Mahkamah Tinggi)
Procedural Posture
Arbitration Related Applications: S 42 Reference, Setting Aside (s 37) and Enforcement (s 38) Under the Arbitration Act 2005 / Heard Together; High Court Grounds of Judgment and Final Orders on Jurisdiction, Setting Aside and Enforcement Applications (judgment Delivered)
Outcome
s 42 application dismissed for lack of jurisdiction; setting aside application dismissed; enforcement application allowed
Legal Topics
Reference on Question of Law (s 42), Setting Aside Arbitral Award (s 37), Enforcement of Arbitral Award (s 38), Natural Justice, Illegality of Contract, Retrospectivity of Repeal, Jurisdiction of Courts in Arbitration
Source Language
Malay/English
Arbitration Civil Procedure Contract Law Public Policy Statutory Interpretation Enforcement of Judgments and Awards Reference on Question of Law (s 42) Setting Aside Arbitral Award (s 37) +5 more

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Parties

Transgrid Ventures Sdn Bhd

Plaintiff (in OS No. WA 24 C(arb) 54 12/2019 and OS No. WA 24 C(arb) 5 01/2020; Defendant in OS No. WA 24 C(arb) 7 01/2020)

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

Defendant (in OS No. WA 24 C(arb) 54 12/2019 and OS No. WA 24 C(arb) 5 01/2020; Plaintiff in OS No. WA 24 C(arb) 7 01/2020)

Procedural Posture

Arbitration Related Applications: S 42 Reference, Setting Aside (s 37) and Enforcement (s 38) Under the Arbitration Act 2005 / Heard Together; High Court Grounds of Judgment and Final Orders on Jurisdiction, Setting Aside and Enforcement Applications (judgment Delivered)

Legal Issues

  1. 1 Whether the High Court had jurisdiction to hear a s 42 reference after s 42 was repealed (Arbitration (Amendment) (No.2) Act 2018)
  2. 2 Whether the arbitrator exceeded jurisdiction by deciding matters beyond the submission to arbitration (s 37(1)(a)(iv) and (v))
  3. 3 Whether the award conflicted with Malaysian public policy due to breach of natural justice (s 37(1)(b)(ii) read with s 37(2)(b))

Ratio Decidendi

The Court held it lacked jurisdiction to hear the s 42 application because s 42 had been repealed and is not available for awards published on or after 8.5.2018; alternatively, even if s 42 vested at arbitration commencement, purposive interpretation could support retrospective effect of repeal. On the merits, the arbitrator acted within jurisdiction in deciding the LoA was tainted by illegality based on pleaded assertions and evidence; there was no breach of natural justice sufficient to set aside the award. Consequently the setting aside application was dismissed and the enforcement application was allowed.

Court Disposition

s 42 application dismissed for lack of jurisdiction; setting aside application dismissed; enforcement application allowed

Orders

  • O.S. No. WA-24C(ARB)-54-12/2019 (s 42 application) dismissed for lack of jurisdiction; Transgrid to pay CRSE costs of RM20,000.00 (subject to allocatur)
  • O.S. No. WA-24C(ARB)-5-01/2020 (setting aside) dismissed; Transgrid to pay CRSE costs of RM20,000.00 (subject to allocatur)