1. ) (BA-24C(ARB)-4-05/2020) LOW KOH HWA @ LOW KOK HWA (NRIC No.: 440923-10-5249) [practising as sole Chartered Architect at LOW & ASSOCIATES (Registered Architect No.: A/L 78)] 2. ) (BA-24C-87-09/2020) PERSATUAN KANAK-KANAK SPASTIK SELANGO

1. ) (BA-24C(ARB)-4-05/2020) LOW KOH HWA @ LOW KOK HWA (NRIC No.: 440923-10-5249) [practising as sole Chartered Architect at LOW & ASSOCIATES (Registered Architect No.: A/L 78)] 2. ) (BA-24C-87-09/2020) PERSATUAN KANAK-KANAK SPASTIK SELANGO

The court set aside the arbitral award in its entirety because the arbitrator failed to make full and timely disclosure of a relationship with a material witness, breaching statutory disclosure duties under s14(1)-(2) AA and thereby infringing the rule of natural justice and independence as perceived by a fair‑minded and informed observer (real possibility/real danger of bias); additionally the award decided on an Overpayment and interest that were not within the submission to arbitration and severance under s37(3) was not practicable; in the exercise of discretion the court nullified the award and dismissed enforcement.

Citation
BA-24C(ARB)-4-05/2020 & BA-24C-87-09/2020 (Mahkamah Tinggi)
Parties
Plaintiff (in BA 24 C(arb) 4 05/2020) and Defendant (in BA 24 C 87 09/2020): Low Koh Hwa @ Low Kok Hwa (practising as Low & Associates); Defendant (in BA 24 C(arb) 4 05/2020) and Plaintiff (in BA 24 C 87 09/2020): Persatuan Kanak-kanak Spastik Selangor & Wilayah Persekutuan
Court
ARB
Jurisdiction
Malaysia
Judgment Date
28 December 2020
Case Number
BA-24C(ARB)-4-05/2020 & BA-24C-87-09/2020 (Mahkamah Tinggi)
Procedural Posture
Originating Summons (setting Aside and Enforcement Under Arbitration Act 2005) / Judgment on Two Originating Summonses (setting Aside and Enforcement)
Outcome
Setting Aside OS allowed; Enforcement OS dismissed; arbitral award set aside in its entirety
Legal Topics
Setting Aside Arbitral Award, Enforcement of Arbitral Award, Arbitrator Disclosure Obligations S14 Arbitration Act 2005, Bias and Impartiality of Arbitrator, Independence of Arbitrator, Severance of Award Under S37(3), Natural Justice
Source Language
Malay/English
Arbitration Civil Procedure Administrative Law Public Policy Setting Aside Arbitral Award Enforcement of Arbitral Award Arbitrator Disclosure Obligations S14 Arbitration Act 2005 Bias and Impartiality of Arbitrator +3 more

Case Brief

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Parties

Low Koh Hwa @ Low Kok Hwa (practising as Low & Associates)

Plaintiff (in BA 24 C(arb) 4 05/2020) and Defendant (in BA 24 C 87 09/2020)

Persatuan Kanak-kanak Spastik Selangor & Wilayah Persekutuan

Defendant (in BA 24 C(arb) 4 05/2020) and Plaintiff (in BA 24 C 87 09/2020)

Procedural Posture

Originating Summons (setting Aside and Enforcement Under Arbitration Act 2005) / Judgment on Two Originating Summonses (setting Aside and Enforcement)

Legal Issues

  1. 1 Whether award dealt with dispute not contemplated by or outside the submission to arbitration (s37(1)(a)(iv) AA)
  2. 2 Whether award contained decisions beyond scope of submission to arbitration (s37(1)(a)(v) AA) and whether severance under s37(3) was available
  3. 3 Whether arbitrator breached statutory disclosure duties under s14(1) and s14(2) AA (full and timely disclosure)

Ratio Decidendi

The court set aside the arbitral award in its entirety because the arbitrator failed to make full and timely disclosure of a relationship with a material witness, breaching statutory disclosure duties under s14(1)-(2) AA and thereby infringing the rule of natural justice and independence as perceived by a fair‑minded and informed observer (real possibility/real danger of bias); additionally the award decided on an Overpayment and interest that were not within the submission to arbitration and severance under s37(3) was not practicable; in the exercise of discretion the court nullified the award and dismissed enforcement.

Court Disposition

Setting Aside OS allowed; Enforcement OS dismissed; arbitral award set aside in its entirety

Orders

  • The arbitral award dated 12 February 2020 is set aside in its entirety
  • Originating Summons BA-24C(ARB)-4-05/2020 (setting aside) is allowed