Malaysia Case Law: Decisions & Judgments

Topic

Jurisdiction of arbitrator

Legal area

Court

29 Nov 2022

Pook Fong Fee and Aswath Ramkrishnan [Messrs Ahmad Deniel, Ruben & Co.] Abdullah Az-Zubayr bin Awaluddin and Ashmadi bin Othman [Messrs Zulpadli & Edham]

Citation

SAMAN PEMULA NO.: WA-24C(ARB)-18-05/2022 (Mahkamah Tinggi)
Court

ARB
Case number

SAMAN PEMULA NO.: WA-24C(ARB)-18-05/2022 (Mahkamah Tinggi)

The court refused to set aside the Final Award and ordered recognition and enforcement: the arbitrator was validly appointed and constituted, the alleged conflict of interest had been previously litigated and is res judicata, the parties had been given opportunity to be heard and the arbitrator addressed the material issues so there was no breach of natural justice or excess of jurisdiction warranting setting aside, and the court will not re-examine or overturn the arbitrator's factual findings; accordingly OS 23 to set aside is dismissed and OS 18 to recognise and enforce the award is allowe…
29 Nov 2022

WIRADANI DEVELOPMENT SDN BHD SPNB ASPIRASI SENDIRIAN BERHAD

Citation

WA-24C(ARB)-18-05/2022 (Mahkamah Tinggi)
Court

ARB
Case number

WA-24C(ARB)-18-05/2022 (Mahkamah Tinggi)

The Court refused to set aside the Final Award and granted recognition and enforcement because SPNB failed to establish any statutory ground under the Arbitration Act 2005 to refuse recognition or enforcement; the arbitrator was validly appointed and had considered the parties' cases; alleged conflicts were previously determined and are res judicata; errors of fact or law asserted by SPNB did not meet the high threshold required to overturn an arbitral award and minimal judicial interference principle mandates enforcement.
29 Nov 2022

SPNB ASPIRASI SDN BHD WIRADANI DEVELOPMENT SDN BHD

Citation

WA-24C(ARB)-23-07/2022 (Mahkamah Tinggi)
Court

ARB
Case number

WA-24C(ARB)-23-07/2022 (Mahkamah Tinggi)

The High Court found no valid basis under the Arbitration Act 2005 to set aside the Final Award: the arbitrator was properly constituted, issues of alleged conflict were previously decided and res judicata applies, the arbitrator considered the parties' submissions and evidence so there was no breach of natural justice or excess of jurisdiction that would justify interference; therefore the Final Award is recognised and enforced and the application to set aside is dismissed.
29 Sept 2021

1. ) Ketua Setiausaha Kementerian Dalam Negeri 2. ) Kerajaan Malaysia SALCONMAS SDN BHD

Citation

W-01(NCC)(A)-158-03/2020 (Mahkamah Rayuan)
Court

NCC
Case number

W-01(NCC)(A)-158-03/2020 (Mahkamah Rayuan)

The appeal is dismissed because the appellants waived their right to challenge the arbitrator's jurisdiction by failing to raise the objection before the arbitrator as required by the Arbitration Act 2005, and they failed to demonstrate that the Final Award conflicted with Malaysian public policy; although the High Court erred in one factual finding on res judicata, that error did not entitle the appellants to set aside the award.
1 Sept 2021

1. SEGI ASTANA SDN BHD 2. WCT BERHAD MALAYSIA AIRPORTS HOLDINGS BERHAD

Citation

WA-24NCC(ARB)-25-05/2021 (Mahkamah Tinggi)
Court

ARB
Case number

WA-24NCC(ARB)-25-05/2021 (Mahkamah Tinggi)

The High Court held that the arbitrator did not exceed his jurisdiction in ordering payment to ACES because the pleadings and submissions sufficiently put payment to ACES in issue; the corrective award was a permissible clerical correction within the 30‑day period; there was no material breach of natural justice or public policy; accordingly the application to set aside was dismissed and the award was recognised and enforced.
9 Jul 2021

ORIENTAL HOUSETOP SDN BHD MAGNA HAVEN SDN BHD

Citation

WA-24C(ARB)-06-02/2021 (Mahkamah Tinggi)
Court

ARB
Case number

WA-24C(ARB)-06-02/2021 (Mahkamah Tinggi)

OS 1 dismissed and OS 2 allowed because the excess-of-jurisdiction challenge was not intituled and therefore not entertained; the alleged breaches of natural justice did not amount to a material prejudice that would justify setting aside the award; the Arbitrator afforded a fair hearing and his valuation and findings were reasonable and immaterial to the outcome; therefore the award is valid and enforceable under s.38 AA.
15 Feb 2021

M101 Entity Sdn Bhd Geopancar Sdn Bhd

Citation

WA-24C(ARB)-15-06/2020 (Mahkamah Tinggi)
Court

ARB
Case number

WA-24C(ARB)-15-06/2020 (Mahkamah Tinggi)

The High Court held that M101 did not prove on the balance of probabilities that the Award should be set aside under s 37(1)(a)(iv) or under s 37(1)(b)(ii) read with s 37(2)(b)(ii). The arbitrator did not exceed his jurisdiction because determining whether the Architect/Engineer instructions contained new requirements (and thus required variation orders) was integral to the pleaded dispute; the documents-only procedure and opportunity to respond nullified M101's complaints of denial of opportunity to lead expert evidence; no breach of natural justice or public policy was established. Conseque…
16 Jun 2020

UDA LAND SDN BHD PUNCAK SEPAKAT SDN BHD

Citation

WA-24C(ARB)-29-06/2019 (Mahkamah Tinggi)
Court

ARB
Case number

WA-24C(ARB)-29-06/2019 (Mahkamah Tinggi)

The court set aside the arbitral award because the arbitrator committed a fundamental denial of natural justice and serious legal error by refusing or failing to adjudicate the plaintiff's counterclaim/set-off arising from the same transaction, misapplying insolvency and set-off authorities (failing to engage with Sime Diamond), and by awarding pre-award interest without jurisdiction given the Interpretation Act protection of existing proceedings; those errors materially prejudiced the plaintiff and met the narrow public policy threshold for intervention under s.37 AA.
7 Nov 2019

SUNWAY CREATIVE STONES SDN BHD SYARIKAT PEMBENAAN YEOH TIONG LAY SDN BHD

Citation

WA-24C(ARB)-18-05/2019 & WA-24C(ARB)-20-05/2019 (Mahkamah Tinggi)
Court

ARB
Case number

WA-24C(ARB)-18-05/2019 & WA-24C(ARB)-20-05/2019 (Mahkamah Tinggi)

The court dismissed the setting aside application and allowed enforcement: YTL waived any objection to the arbitrator's delay by failing to timely object or seek termination under ss16/18 AA 2005; Article 21.3 delay did not ipso facto void the arbitrator's mandate where parties did not act; the arbitrator had jurisdiction under the parties' arbitration agreement and PAM Rules (and s33(6) AA 2005) to award pre-award interest and did not breach natural justice; delay alone did not meet the narrow public policy threshold for setting aside; award enforced as judgment with costs.