1. ) Hew Choong Jeng 2. ) Eng Chip Jin 3. ) Lai Suen Sen 4. ) Kwan Hep Chuen 5. ) Lee Chee Herng Kok Low Kau

1. ) Hew Choong Jeng 2. ) Eng Chip Jin 3. ) Lai Suen Sen 4. ) Kwan Hep Chuen 5. ) Lee Chee Herng Kok Low Kau

The appeal was allowed and a stay pending arbitration was granted because the plaintiff failed to discharge the onus of proving the arbitration clause was null, void or inoperative; the clause covers the dispute and under the Arbitration Act 2005 the absence of an express seat or procedural rules does not invalidate an arbitration agreement as the tribunal may determine seat and procedure.

Citation
BA-12ANCC-7-02/2022 (Mahkamah Tinggi)
Parties
Appellant/defendant: Hew Choong Jeng; Appellant/defendant: Eng Chip Jin; Appellant/defendant: Lai Suen Sen; Appellant/defendant: Kwan Hep Chuen; Appellant/defendant: Lee Chee Herng; Respondent/plaintiff: Kok Low Kau
Court
High Court
Jurisdiction
Malaysia
Judgment Date
15 July 2022
Case Number
BA-12ANCC-7-02/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Sessions Court / Decision on Stay Pending Arbitration (appeal Allowed)
Outcome
Appeal allowed; stay of proceedings granted pending arbitration
Legal Topics
Stay Pending Arbitration, Validity of Arbitration Clause, Seat of Arbitration, Choice of Law, Burden of Proof
Source Language
Malay/English
Arbitration Contract Civil Procedure Conflict of Laws Statutory Interpretation Stay Pending Arbitration Validity of Arbitration Clause Seat of Arbitration +2 more

Case Brief

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Parties

Hew Choong Jeng

Appellant/defendant

Eng Chip Jin

Appellant/defendant

Lai Suen Sen

Appellant/defendant

Kwan Hep Chuen

Appellant/defendant

Lee Chee Herng

Appellant/defendant

Kok Low Kau

Respondent/plaintiff

Procedural Posture

Civil Appeal From Sessions Court / Decision on Stay Pending Arbitration (appeal Allowed)

Legal Issues

  1. 1 Whether the court must grant a stay pending arbitration under section 10 of the Arbitration Act 2005
  2. 2 Whether the arbitration clause is null and void, inoperative or incapable of being performed for failing to specify the seat of arbitration or arbitration rules
  3. 3 Which law applies to determine validity of the arbitration clause (laws of Hong Kong SAR or laws of Malaysia)

Ratio Decidendi

The appeal was allowed and a stay pending arbitration was granted because the plaintiff failed to discharge the onus of proving the arbitration clause was null, void or inoperative; the clause covers the dispute and under the Arbitration Act 2005 the absence of an express seat or procedural rules does not invalidate an arbitration agreement as the tribunal may determine seat and procedure.

Court Disposition

Appeal allowed; stay of proceedings granted pending arbitration

Orders

  • Stay granted pending arbitration pursuant to section 10 of the Arbitration Act 2005
  • Costs to be paid by the Respondent/Plaintiff