Malaysia

Arbitration in Malaysia has come a long way in terms of its landscape and popularity. As most arbitration-friendly jurisdictions continue to innovate and re-sculpt their rules and laws on arbitration, Malaysia has been closely monitoring and catching up with the movement. A constant search for development and progress has seen Malaysia emerge as a promising destination in terms of alternative dispute resolution, for parties and arbitrators alike.

Arbitration in Malaysia is governed by the Arbitration Act 2005 (the 2005 Act) and, to some extent, the Arbitration Act 1952 (the 1952 Act). As will be discussed in this chapter, the interplay between the 2005 Act and the 1952 Act remains, to a certain extent, interestingly at odds with their respective and differing provisions. In addition, parties are at liberty to turn to institutional support such as choosing to have their arbitrations conducted in accordance with the arbitration rules under the Kuala Lumpur Regional Centre for Arbitration (the KLRCA). This chapter will also trace and discuss the history and progress of the KLRCA in promoting arbitration in Malaysia as well as the latter as an arbitration-friendly country.

Why Malaysia?

As will become apparent as the discussion proceeds, Malaysia has been rigorously undertaking steps to develop into the preferred arbitration nation and is now fast becoming one of the key arbitration hubs in the Asia-Pacific region. The progress is further enhanced by a supportive government and arbitration-friendly courts in Malaysia, which, coupled with the aggressive marketing of the KLRCA as the preferred arbitral institution by engaging companies in Malaysia and abroad to explain the advantages of utilising the KLRCA, will see the country soar to greater heights.

Apart from the robust push by the various establishments, one of the many advantages in choosing Malaysia as an arbitral forum is the savings in costs and expenditure. Taking the KLRCA as a prime example, the KLRCA has a very transparent fee structure and its cost of conducting arbitral proceedings in the centre is only approximately 60 per cent of what it would cost in Singapore. In addition, ancillary costs and expenses such as food, accommodation and transport are significantly lower in Malaysia as well. As a whole, having arbitral proceedings conducted in Malaysia is more cost-friendly, accessible, and attainable.

Rise of arbitration: pre-19521

Prior to the formation of the Federation of Malaya on 31 January 1948 and the subsequent enactment of the 1952 Act, the Arbitration Ordinance XIII of 1809 of the Straits Settlements was British Malaya’s first piece of arbitral legislation. The acceptance of the Arbitration Ordinance XIII of 1809 came as a result of the many treaty arrangements that the sultans of the Malay states had entered into with the British, thereby introducing the British legal system to the country.2 The Arbitration Ordinance XIII of 1809 was subsequently replaced in the states of Penang and Malacca by the Arbitration Ordinance 1890.3 Thereafter, in 1950, the Arbitration Ordinance 1950 replaced the Arbitration Ordinance 1890 for all the states of the Federation of Malaya. The Arbitration Ordinance 1950 was based on the English Arbitration Act of 1889.

In 1952, British North Borneo and Sarawak adopted the English Arbitration Act of 1950 as their respective legislation. Pursuant to North Borneo and Sarawak joining the Federation of Malaysia in 1963, Malaysia adopted the prevailing arbitration laws in Sabah and Sarawak on 1 November 1972 and it became known as the Arbitration Act 1952, which was based on the English Arbitration Act 1950 and initially enacted as the Sarawak Ordinance No. 5 of 1952.4 The 1952 Act governed arbitrations in Malaysia for over half a century, contributing to a substantial pool of arbitral authorities and decisions.

Out with the old: the Malaysian Arbitration Act 1952

In 2005, the Malaysian arbitration scene underwent an interesting phase whereby the longstanding 1952 Act was repealed by the current 2005 Act, making Malaysia ‘the last major jurisdiction in the common law world to embark on a wholesale revision of its arbitration law.’5 Prior to its repeal, the regime under the 1952 Act was central to the evolution and advancement of the arbitral scene in Malaysia. However, the 1952 Act was also plagued with certain shortcomings which ultimately led to its legal demise.

The discussion below on the 2005 Act will expand its scope by addressing some of the problems encountered by the judiciary when applying and interpreting the 1952 Act which have now been superseded by the provisions of the 2005 Act. Notwithstanding the issues with the 1952 Act, the discussion on the 2005 Act would also highlight the need for additional clarification in terms of certain provisions of the 2005 Act given the lack in substantial judicial interpretation of the 2005-enacted provisions as well as their 2011 amendments.

In with the new: the Malaysian Arbitration Act 2005

The 2005 Act was enacted on 30 December 2005 and came into force on 15 March 2006. The 2005 Act, which is largely modelled after the UNCITRAL Model Law and the New Zealand Arbitration Act 1969, applies to all arbitral proceedings commenced on or after 15 March 2006. The application of either the 2005 Act or the 1952 Act to arbitral proceedings commenced prior to 15 March 2006 remains, albeit to a lesser extent, in a flux as learned judges differ in their respective legal views.

To say that the 2005 Act simply repealed the 1952 Act would not be giving enough credit to the extensive and intensive exercise undertaken to not only replace the 1952 Act but also, effectively, extend improvement upon the old regime. Given that the aim of the 2005 Act is to unify and harmonise the laws governing arbitrations in Malaysia with current practices among the international players, the reception and implementation of the provisions of the 2005 Act have proven to be considerably successful.

The 2005 Act or the 1952 Act?

Prior to highlighting the improvements injected by the provisions of the 2005 Act, the coming into force of the 2005 Act has nonetheless generated certain confusions and ambiguity with regard to arbitrations in Malaysia which were commenced after 15 March 2006 but arose from contracts and agreements entered into before the said date.

This was observed in the case of Putrajaya Holdings Sdn Bhd v Digital Green Sdn Bhd.6 In arriving at its decision,7 the court considered the fact that the arbitration agreement, particularly clause 63.5, which made explicit reference to the 1952 Act, granted parties rights under the 1952 Act should any dispute arise between them. The court also took into consideration the different wording used in the Bahasa Malaysia version of the 2005 Act, which clearly states that the 2005 Act does not apply to arbitral proceedings arising out of an arbitration agreement entered into before 15 March 2006 or to arbitral proceedings commenced before 15 March 2006. Although the English version of the 2005 Act clearly states that the 2005 Act applies to all arbitral proceedings commenced on or after 15 March 2006 (without distinguishing when the arbitration agreement was entered into) and Section 117 of the Interpretation Acts 1948 and 1967 clearly provides that in the event of any conflict or discrepancy, the English text will prevail, the court felt that this was ‘not a situation where there is a conflict or inconsistency between the wordings in the English text and the Bahasa Malaysia text but is a correlative by the Bahasa Malaysia text to the interpretation of the defective provision in the English text by applying the purposive approach.’8

This decision has been followed in the case of Hiap-Taih Welding & Construction Sdn Bhd v Bousted Pelita Tinjar Sdn Bhd (formerly known as Loagan Benut Plantations Sdn Bhd).9

However, before the decision of Putrajaya Holdings Sdn Bhd v Digital Green Sdn Bhd was delivered, the High Court in the case of Majlis Ugama Islam Dan Adat Resam Melayu Pahang v Far East Holdings Bhd & Anor,10 in deciding which statute was applicable to a dispute arising out of an agreement entered into by the parties in 1992, held that since the arbitral proceedings had commenced on 16 October 2006, the 2005 Act and not the 1952 Act would be applicable.

Further, in the case of Total Safe Sdn Bhd v Tenaga Nasional Bhd & TNB Generation Sdn Bhd,11 a decision made after the case of Putrajaya Holdings Sdn Bhd v Digital Green Sdn Bhd, the court also held that the statute applicable to a dispute arising out of an agreement dated 5 July 2002 should be the 2005 Act as the arbitral proceedings had commenced subsequent to the 2005 Act coming into force.

It is also interesting to note the decision of the court in the case of Segamat Parking Services Sdn Bhd v Majlis Daerah Segamat Utara & Anor Case.12 In this case, the arbitral proceedings, which were governed by the 1952 Act, had ended. The parties to the arbitral proceedings being dissatisfied with the arbitral award given commenced separate judicial proceedings against each other. One of the parties had referred certain questions of law to the court under the 2005 Act while the other party had challenged the arbitral award pursuant to the provisions under the 1952 Act. The High Court ruled that the applicable statute was the 2005 Act as all proceedings (arbitration and court) relating to the final arbitral award were instituted after the coming into force of the 2005 Act.

As to the issue in Segamat Parking Services Sdn Bhd v Majlis Daerah Segamat Utara & Anor Case, the Arbitration (Amendment) Act 2011, with the insertion of section 51(4), had clearly taken notice. Section 51(4) of the 2005 Act now provides for the 2005 Act to apply to any court proceedings, relating to arbitration, which commenced after the commencement of the 2005 Act. This is notwithstanding that such court proceedings arose out of arbitral proceedings which commenced prior to the commencement of the 2005 Act.

In light of these decisions, the difficulty in reconciling the application of the 2005 Act and the 1952 Act in relation to arbitral proceedings commenced prior or after the 2005 Act had been minimised. However, there still appears to be ambiguity and inconsistency as to which Act would apply to arbitral proceedings commenced on or after 15 March 2006 but arising out of arbitration agreements entered into before the said date. It will be interesting to see the extent and how the courts in Malaysia will address this aspect of the law.

The 2005 Act - better than the 1952 Act?

There are quite a number of differences between the 2005 Act and the 1952 Act, and these differences, as briefly mentioned above, are necessary and welcome to enhance the reliability of the laws on arbitration in Malaysia. This chapter will not attempt to analyse in depth each provision of the 2005 Act and the 1952 Act. Instead, this chapter seeks to address the more prominent and noteworthy improvements introduced and implemented under the 2005 Act.

Apart from the legal differences between the 2005 Act and the 1952 Act, the structural differences are apparent as well. The 2005 Act is divided into four parts. Part I (sections 1 to 5) deals with preliminary issues such as key definitions, the commencement of arbitral proceedings and the arbitrability of the subject matter in dispute. Part II (sections 6 to 39) is where the essence of the 2005 Act lies as it covers the various important aspects of the arbitral proceedings, such as the arbitration agreement, composition of the arbitral tribunal, jurisdiction of the arbitral tribunal, the making of arbitral awards as well as the recourse against and enforcement of arbitral awards. Part III (sections 40 to 46) deals chiefly with judicial control over the arbitral proceedings such as the determination of preliminary points of law by the courts and extensions of time for commencing arbitral proceedings and making of arbitral awards. Part IV (sections 47 to 51) tends to miscellaneous issues such as the liability of the arbitrators and the immunity of arbitral institutions.

Court’s assistance

Under the 1952 Act, all arbitrations held in accordance with the Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965 (the ICSID Convention), the United Nations Commission on International Trade Law Arbitration Rules 1976 (the UNCITRAL Arbitration Rules) or the Rules of the Regional Centre for Arbitration at Kuala Lumpur (the KLRCA Arbitration Rules) were governed by section 34.13 As such, arbitrations governed by section 34 were not subject to judicial intervention, except for the purposes of enforcement of arbitral awards, as it was expressly provided that the provisions under the 1952 Act would not be applicable.14

The problems created by section 34 of the 1952 Act raised some serious doubts as to its purpose as removing certain arbitrations from the reach and assistance of the judiciary was to stagnate, and might possibly deteriorate, the progress made thus far. One of the difficulties in adhering to section 34 of the 1952 Act was in the enforcement of domestic arbitral awards which applied either the UNCITRAL Arbitration Rules or the KLRCA Arbitration Rules as it was provided that such domestic arbitral awards would not be enforced in the same manner as a judgment or order to the same effect.15 On the other hand, such domestic arbitral awards would not be able to be enforced under the ICSID Convention or the Convention on the Recognition and Enforcement of Foreign Awards (the New York Convention) as these conventions are only applicable to arbitral awards made and which possessed a foreign element.

In this regard, where the 1952 Act stumbles, the 2005 Act picks up the debris and, as such, does away with the exclusion of judicial assistance in international arbitrations. The 2005 Act does not seek to oust international arbitrations from the court’s assistance; quite the contrary, it expressly provides for and extends the reach of the court in situations such as involving interim support for the arbitral proceedings, the consideration of the arbitrability of the subject matter of the dispute, and the determination of public policy in relation to the arbitral awards. Notwithstanding the foregoing, the necessity in distinguishing between domestic arbitrations and international arbitrations will be illuminated as the discussion progresses.

The distinction between international and domestic

Whereas the 1952 Act makes no distinction between domestic arbitrations and international arbitrations and applies to both, it is now necessary under the 2005 Act to distinguish domestic arbitrations and international arbitrations in order to determine the applicability of different sections of the 2005 Act.

Firstly, pursuant to section 3 of the 2005 Act, the applicability of part III hinges upon the question of whether or not an arbitration is ‘international’ or ‘domestic’. In a domestic arbitration, part III of the 2005 Act applies by default unless the parties to the arbitral proceedings exclude its application in writing, that is, to opt-out. On the other hand, in an international arbitration, the default position is reversed and part III of the 2005 Act does not apply unless the parties to the arbitral proceedings agree otherwise in writing, that is, to opt-in. part III of the 2005 Act essentially allows for greater intervention by the court, notwithstanding any limitations imposed by the arbitration agreement, such as by allowing any party to the arbitral proceedings to refer to it any question of law arising out of an arbitral award,16 and allowing the court to extend the time imposed for the commencement of arbitral proceedings17 or the delivery of an arbitral award.18

Secondly, the distinction between domestic arbitrations and international arbitrations also goes towards deciding the outcome of the application of section 12(2) of the 2005 Act. Section 12(2) provides that in the event that parties to the arbitral proceedings fail to determine the number of arbitrators, the arbitral tribunal shall consist of three arbitrators in the case of an international arbitration and a single arbitrator in the case of a domestic arbitration.

Thirdly, section 30 of the 2005 Act provides that in respect of domestic arbitrations, the applicable substantive laws shall be that of Malaysia, unless the parties to the arbitral proceedings agree otherwise. With regard to international arbitrations, the applicable substantive laws shall be decided by the parties to the arbitral proceedings. In the event that the parties to an international arbitration fail to agree on the applicable substantive laws, the arbitral tribunal shall apply the law determined by the conflict of laws rules.

Finally, the characterisation of arbitral proceedings as either domestic or international is also necessary in order to determine the recognisability and enforceability of the arbitral award. An arbitral award made pursuant to an international arbitration in Malaysia does not fall within the ambit of sections 38 and 39 of the 2005 Act as will be explained below.

The Arbitral Tribunal

Both the 1952 Act and the 2005 Act recognise the principle of party autonomy. Section 8 of the 1952 Act provides that unless a contrary intention is expressed, an arbitration agreement is deemed to include a provision that the reference shall be to a single arbitrator. The 1952 Act also provides that in the event that the arbitration agreement makes reference to two or three arbitrators, there shall be an umpire appointed by the arbitrators chosen by both parties to the arbitral proceedings. Failing which or any agreement between the parties, section 12 of the 1952 Act provides that the High Court may appoint the same.

Although there are no specific provisions in the 1952 Act similar to that in the 2005 Act, it is advisable that an appointed arbitrator should disclose any circumstances or interest which he might have in the outcome of the arbitration that would cast doubt on his impartiality and independence. Otherwise, under section 25 of the 1952 Act, the court may grant relief to a party to the arbitral proceedings in the event that an arbitrator is found to be partial. Such relief includes the granting of an injunction to restrain the arbitrator in question from proceeding with the arbitration.

Like section 12 of the 1952 Act, the same section under the 2005 Act states that parties to the arbitral proceedings are free to determine and decide on the number of arbitrators to preside over the arbitral proceedings. Section 12 of the 2005 Act also provides for instances where the parties to the arbitral proceedings are unable to agree on the number of arbitrators. As mentioned above, depending on whether it is a domestic arbitration or an international arbitration, the 2005 Act prescribes that a sole arbitrator shall be appointed for domestic arbitrations whilst three arbitrators shall be appointed for international arbitrations.

The procedures for the appointment of arbitrators are provided for under section 13 of the 2005 Act. Section 13 of the 2005 Act gives ample liberty for parties to the arbitral proceedings to determine the procedures that are to be adopted with regard to the appointment of arbitrators. Section 13 of the 2005 Act further provides for resolution mechanisms in the event that parties to the arbitral proceedings are unable to come to an agreement. For example, pursuant to section 13(7) of the 2005 Act, should the director of the KLRCA fail to appoint the relevant number of arbitrators under sections 13(4) and (5) of the 2005 Act, either party to the arbitral proceedings may then apply to the High Court for such an appointment.19

Section 14 of the 2005 Act makes it mandatory for a person who is appointed to act as an arbitrator to disclose any circumstances that are likely to give rise to justifiable doubts as to his impartiality or independence as this is a ground for challenging arbitrators. Section 14 of the 2005 Act also states that an arbitrator may be challenged if he does not possess the requisite qualifications agreed to by the parties.

Section 15 of the 2005 Act goes a step further and provides for the procedures that are to be adopted when challenging an arbitrator. Section 16 of the 2005 Act deals with when an appointed arbitrator fails to act or when it becomes impossible for the arbitrator to act whereas section 17 of the 2005 Act provides for matters relating to the appointment of a substitute arbitrator in the foregoing event.

Unlike the 1952 Act, which does not allow the arbitral tribunal to determine its own jurisdiction, the 2005 Act, by virtue of section 18, grants the arbitral tribunal the authority to rule on its own jurisdiction, that is, the concept of kompetenz-kompetenz, including matters relating to the validity of the arbitration agreement. Section 18 of the 2005 Act also provides for the procedures and time limits on raising objections to the arbitral tribunal’s jurisdiction. It also provides for appeal to the court, which shall have the final say, with regard to the arbitral tribunal’s ruling on its jurisdiction. The courts in the cases of Standard Chartered Bank Malaysia Bhd v City Properties Sdn Bhd & Anor20 and CMS Energy Sdn Bhd v Poscon Corp21 have all observed that under the 2005 Act, an arbitral tribunal may determine its own jurisdiction.

Unlike the 1952 Act, which is silent on the issue, section 19 of the 2005 Act allows arbitral tribunals to grant interim measures, which, inter alia, include security for costs and discovery of documents. However, the 2005 Act is silent on whether or not an arbitral tribunal can grant any of the interim measures on an ex parte application.

The procedure for arbitration

Unlike the 1952 Act, the adoption of arbitration procedures is provided for under sections 20 to 29 of the 2005 Act. Section 21(1) of the 2005 Act provides that parties to the arbitral proceedings are free to agree on the procedures to be followed by the arbitral tribunal in conducting the arbitral proceedings. Section 21(2) of the 2005 Act provides that the arbitral tribunal may conduct the arbitral proceedings in such manner as it considers appropriate if parties to the arbitral proceedings are unable to come to an agreement. These include powers of the arbitral tribunal to determine the admissibility, relevance, and materiality of any evidence as well as fixing and amending time limits.

Judicial intervention

Both the 1952 Act and the 2005 Act allow for the intervention of the judiciary in certain instances. Such intervention includes, inter alia, the staying of proceedings,22 granting of interim measures of protection such as security for costs and interrogatories,23 and the enforcement of arbitral awards.24 In terms of the changes introduced by the Arbitration (Amendment) Act 2011, section 11 of the 2005 Act has been amended to clarify that in order to secure the amount in dispute, the court may order the arrest of property, bail or other security before or during the arbitral proceedings. In particular, section 11(3) of the 2005 Act now empowers the court to make orders for any interim measures even if the seat of arbitration is outside Malaysia. This clarification in law will be of particular interest to parties involved in disputes relating to assets in Malaysia but which are being arbitrated in other jurisdictions, such as Singapore.

It is necessary to consider if limitations placed on the intervention by the court can be circumvented by the court invoking its inherent powers. Prior to the commencement of the 2005 Act, there were two conflicting decisions of the Court of Appeal. In the case of Sarawak Shell Bhd v PPES Oil and Gas Sdn Bhd,25 the court held that it had no powers to intervene unless it was statutorily empowered to do so. In contrast, in the case of Bina Jati Sdn Bhd v Sum Projects (Bros) Sdn Bhd,26 the Court of Appeal was of the view that the courts had a supervisory jurisdiction over arbitrations and arbitrators, and that the court may invoke Order 92, Rule 4 of the Rules of High Court 1980 to make any order that may be necessary to prevent injustice.

The issue has been discussed and given significant consideration in the case of Aras Jalinan Sdn Bhd v Tipco Asphalt Public Company Ltd & Ors,27 where it was held that the High Court in Malaysia ‘has no jurisdiction, statutory or inherent or by the exercise of residual powers to grant injunctive relief in matters where the seat of arbitration is outside Malaysia.’28 In reaching his decision, Badariah Sahamid JC compared section 8 of the 2005 Act to article 5 of the UNCITRAL Model Law and found that the rationale behind both provisions is to ‘bring certainty to arbitration proceedings by setting out the specific parameters of court assistance or supervision in respect of such proceedings.’29 Given that the 2005 Act did not expressly adopt article 1(2) of the UNCITRAL Model Law when it had incorporated the other provisions, it cannot be said that the intention of the Parliament was to confer express jurisdiction to the courts where the seat of arbitration is not Malaysia. It remains to be seen how much further the courts will apply section 8 of the 2005 Act and whether its powers to intervene in arbitral proceedings would be limited to those that are specifically provided for under the Act.

Section 22 of the 1952 Act provides that the arbitrator or umpire may submit any question of law arising in the course of arbitration or from an arbitral award or any part thereof to the High Court. Similarly, section 41 of the 2005 Act provides that a party to the arbitral proceedings may apply to the High Court for the determination of any question of law arising in the course of arbitration with the consent of the arbitrator or all parties to the arbitral proceedings. Additionally, section 42 of the 2005 Act, which provides that any party to the arbitral proceedings may refer any question of law arising out of an arbitral award to the High Court, also provides that one of the options available to the High Court after determining the question submitted is to set aside the arbitral award in whole or in part. However, the High Court shall dismiss such a reference if the question of law does not affect the rights of one or more of the parties to the arbitral proceedings.30 It should be noted that both these provisions are contained in part III of the 2005 Act, which, in default, applies only to domestic arbitrations but not to international arbitrations unless the parties expressly choose to exclude or include them respectively.

Arbitral awards

There is no definition of ‘award’ in the 1952 Act, although section 15 states that a reference to ‘award’ in the 1952 Act includes a reference to interim awards as well. Section 2(1) of the 2005 Act defines an arbitral award as a decision of the arbitral tribunal on the substance of the dispute and that it includes any final, interim or partial award and any award on costs or interests. Section 17 of the 1952 Act and section 36(1) of the 2005 Act further provide that all arbitral awards are final and binding.

Unlike the 1952 Act, section 33 of the 2005 Act provides that an arbitral award should be in writing and signed by the arbitral tribunal. If there is more than one arbitrator, the signatures of the majority would be sufficient provided that the reason for any omission is stated. Section 33 further provides that the arbitral award should state the reasons upon which it is based unless the parties to the arbitral proceedings had agreed otherwise or if the arbitral award is on agreed terms. The arbitral award shall also state the date and the seat of the arbitration.

Both Section 18 of the 1952 Act and section 35 of the 2005 Act allow the arbitrator or umpire to correct any clerical error, accidental slip or omission in an arbitral award. Additionally, section 35 of the 2005 Act allows a party to request the arbitral tribunal to give an interpretation of a specific point or part of the arbitral award.

Section 37 of the 2005 Act provides two bases on which an arbitral award may be set aside. The first basis is when a party making the setting aside application provides proof of one of the limited instances that justify the setting aside of the arbitral award. Such instances include the proving that the other party to the arbitral proceedings did not have the capacity to enter into the arbitration agreement, the arbitration agreement was invalid under the laws of Malaysia, proper notice of the appointment or constitution of the arbitral tribunal or arbitral proceedings were not given, or that the arbitral award deals with a dispute not falling within the terms of the submission of arbitration. The second basis for setting aside the arbitral award is a finding by the court that the dispute is not capable of being settled by arbitration under the laws of Malaysia or that the arbitral award is in conflict with the public policy of Malaysia. It is to be noted that the grounds given under section 37 of the 2005 Act for setting aside an arbitral award do not relate to the merits of the case. In addition, as mentioned earlier, section 42 of the 2005 Act allows the court to set aside an arbitral award to which a question has been referred for its determination.

Enforcement of arbitral awards is dealt with under section 27 of the 1952 Act and sections 38 and 39 of the 2005 Act. Section 38 of the 2005 Act also provides for the procedures that a party to the arbitral proceedings needs to comply with when seeking to enforce an arbitral award. Section 39 of the 2005 Act sets out the grounds on which the recognition or enforcement of an arbitral award shall be refused.

It is also to be noted that the 2005 Act does not repeal the Reciprocal Enforcement of Judgments Act 1958 (the REJA 1958), which provides for the enforcement of an arbitral award from Commonwealth countries and scheduled countries as if it were a foreign judgment, provided that it is first registered in the courts of the country in which the arbitral award was given.

Pro-arbitration: local courts

Stay of legal proceedings

Section 10 of the 2005 Act allows a party to apply to the High Court for a stay of legal proceedings if the subject matter of the dispute is subject to an arbitration agreement. Unlike section 6 of the 1952 Act, section 10 of the 2005 Act makes it mandatory for the High Court to grant a stay unless the arbitration agreement is null and void, inoperative or incapable of being performed or if there exists no dispute between the parties with regard to the matters to be referred to arbitration.

In Chut Nyak Hisham Nyak Ariff v Malaysian Technology Development Corporation Sdn Bhd,31 the court took the occasion to restate the desire of the legislature to reform the law relating to arbitration and to give primacy to arbitral proceedings over court proceedings in circumstances where parties have agreed to resolve their disputes by arbitration. The High Court stated that it would be rare for a court not to grant a stay of legal proceedings under the 2005 Act. This is reaffirmed in both Renault Sa v Inokom Corporation Sdn Bhd & Anor and Other Applications32 and Albilt Resources Sdn Bhd v Casaria Construction Sdn Bhd33 where, in the latter, Abdul Malik Ishak JCA further emphasised the desirability of arbitration regardless of parties’ motives in favouring arbitration over litigation. In coming to his decision, the learned judge held that the contract in dispute ‘must be referred to arbitration. There are no two ways about it.’34

Similarly, in the case of Winsin Enterprise Sdn Bhd v Oxford Talent (M) Bhd35 the court noted that under the 1952 Act, the court would not grant a stay of court proceedings unless the applicant had demonstrated that he was ready and willing to arbitrate the dispute. While that is the position under the 1952 Act, there is no such similar requirement under the 2005 Act. The court held that in both the 1952 Act and the 2005 Act, a stay of court proceedings will not be granted if the applicant has taken part in the court proceedings.

In addition to the two instances provided for under section 10 of the 2005 Act, the decision in the case of Lembaga Pelabuhan Kelang v Kuala Dimensi Sdn Bhd & Another Appeal36 seems to give rise to a further ground for not granting a stay of court proceedings in rare circumstances where estoppels will arise. Although the general rule under section 10 of the 2005 Act still stands, when parties to the arbitral proceedings have subsequently displaced their original discretion to refer their disputes to arbitration by expressly submitting to the jurisdiction of the courts, the doctrine of estoppels may be invoked to prevent a party from asserting otherwise.

All in all, the approach taken by the Malaysian courts in terms of their inclination towards arbitrations can be summed up by the words of the case of CMS Energy Sdn Bhd v Poscon Corp37 that ‘there is unmistakeable intention of the legislature that the court should lean towards arbitration proceedings.’

Appeal against arbitral awards

There is no appeal procedure against an arbitral award in both the 1952 Act and the 2005 Act. However, there exists under both the 1952 Act and the 2005 Act, provisions relating to the setting aside of an arbitral award. Section 24(2) of the 1952 Act states that an arbitral award may be set aside if the arbitrator or umpire has misconducted himself or if the arbitral award has been improperly procured. In the case of Cairn Energy India Pty Ltd v the Government of India,38 the Court of Appeal held that, under the 1952 Act, an arbitral award is ordinarily final and conclusive unless a contrary intention is provided for in the arbitration agreement. Accordingly, civil courts have no appellate jurisdiction over the arbitrator’s decision if it has been fairly reached. However, the court may still decide to set aside an arbitral award if there was an error of law on the face of the arbitral award. This is based on common law principles. Jeffery Tan JCA stated:

The remedy of ‘error of law on the face of the award’ was not provided in the Arbitration Act 1952. But Malaysian law was not and is not limited to the Arbitration Act alone.… Courts in Malaysia have regularly considered arbitration applications on the basis that error of law on the face of the award is available for consideration under our law.39

The Court of Appeal, however, stressed that this was a limited exception and would be applied only if the court found in the arbitral award, or any documents actually incorporated into it, some legal proposition that formed the basis of the arbitral award and which was erroneous. The Court of Appeal was of the view that a question of construction was a question of law and if the question of construction itself was the very thing that had been referred to the arbitrator for determination, the court would not set aside the findings of the arbitrator only because the court itself would have come to a different conclusion. Further, the Court of Appeal also stated that an erroneous decision of an arbitrator on a specific question of construction did not in itself make it a bad arbitral award capable of being set aside.

A similar position was adopted in the case of Taman Bandar Baru Masai Sdn Bhd v Dindings Corporations Sdn Bhd40 where the court held, inter alia, that the 2005 Act makes it compulsory for the courts to respect the decision of the arbitrator and that real proof is required before the courts would meddle with the recognition and enforcement of an arbitral award. The finality of an arbitral award is again observed in Ngo Chew Hong Oils & Fats (M) Sdn Bhd v Karya Rumpun Sdn Bhd41 in that a mere filing of an affidavit to oppose registration, instead of making an application, is deemed insufficient to set aside an arbitral award.

In the case of Asia Control Systems Impac (M) Sdn Bhd v PNE PCB Bhd and another appeal,42 it is apparent that the Malaysian courts have adopted a pro-arbitration stance by endorsing the UNCITRAL Arbitration Rules, which is indicative of a minimalist interventionist approach. The appellant had attempted to set aside an arbitral award made pursuant to the UNCITRAL Arbitration Rules and the KLRCA Arbitration Rules. The High Court dismissed the appellant’s application and allowed the respondent’s application for leave to enforce the arbitral award. On appeal, the Court of Appeal dismissed the appellant’s appeal and held that section 34 of the 1952 Act excluded the application of the 1952 Act or other written law to any arbitration held under the UNCITRAL Arbitration Rules and the KLRCA Arbitration Rules.

Further, in the case of Tan Kau Tiah v Tetuan Teh Kim Teh, Salina & Co & Anor,43 the first respondent had given written undertakings to release the documents of title to the appellant when the matter was decided by an arbitrator or the court or both. The arbitrator handed down an arbitral award in favour of the appellant but the first respondent refused to hand over the documents and filed a summons seeking interpleader reliefs. The High Court allowed the first respondent’s interpleader application and decided that the first respondent ought to continue to hold on to the documents of titles pending the proceedings by the second respondent to remove or restrain or both, the arbitrator as well as an injunction to have the arbitral award set aside. In addition, the first respondent ought to continue to hold on to the documents pending the proceedings by the appellant for leave to enforce the arbitral award against the second respondent. The appellant appealed against the decision of the High Court.

It was held by the Court of Appeal that the order for the immediate return of the documents of title was final and binding, irrespective of whether or not there was any pending appeal to have the order set aside. Once the arbitral order was handed down by the arbitrator, the undertaking of the first respondent would come into play and must be given effect. Further, as the first respondent had, in his affidavit, employed the disjunctive word ‘or’ in regard to what had to be complied with, namely either an arbitral award ‘or’ a court order, when the dispute between the parties ended with an arbitral award, the first respondent must by their own admission comply with it.

Arbitration developments: international

The CREFAA Act

A brief discussion on the CREFAA Act, though repealed by the 2005 Act, is still relevant as it had, prior to the amendment of section 38(1) of the 2005 Act, provided for the enforcement of arbitral awards pursuant to arbitration agreements under the New York Convention or arbitrations held outside Malaysia in states that are party to the New York Convention.

In the case of Sri Lanka Cricket v World Sports Nimbus Pte Ltd,44 the Court of Appeal held that a gazette notification by His Majesty Yang Di-pertuan Agong was a prerequisite before enforcement of an arbitral award from a state is allowed under the New York Convention notwithstanding that the state was indeed a signatory to the New York Convention. This decision was reaffirmed by the Court of Appeal in the case of Alami Vegetable Oil Products Sdn Bhd v Lombard Commodities Ltd45. However, in late 2009, the Federal Court reversed the decision of the Court of Appeal in the latter case46 and held that a gazette notification pursuant to section 2(2) of the CREFAA Act is evidentiary in nature and not a precondition for the purposes of enforcing an arbitral award from a state that is a signatory to the New York Convention. If His Majesty Yang Di-pertuan Agong had issued a gazette notification declaring a particular state to be a signatory to the New York Convention, that gazette notification merely formed conclusive evidence of the fact that that state was a signatory, therefore, the issue of whether or not a state is a signatory to the New York Convention can be proved by adducing other evidence as may be appropriate.

The court in demonstrating its willingness to depart from the previous authority of Sri Lanka Cricket v World Sports Nimbus Pte Ltd opined that:

The critical issue is whether a declaration in the Gazette notification by the Yang Di Pertuan Agong is a condition precedent before an award made in a state, who is a party to the NYC, could be regarded as a convention award under the CREFA. In my view, the answer to this question does not depend on whether the word ‘may’ appearing in s 2(2) of the CREFA has to be read to mean ‘must’ or otherwise.

The Court of Appeal in Sri Lanka Cricket v World Sports Nimbus Pte Ltd construed the word ‘may’ as ‘must’, rendering it mandatory for His Majesty Yang Di-pertuan Agong to extend the benefit under the CREFAA Act to foreign arbitral awards in order for the same to be enforceable. However, in Lombard Commodities Ltd v Alami Vegetable Oil Products Sdn Bhd, the court elected to construe the word ‘may’ as simply conferring a power and proceeded to examine whether or not a duty to exercise the power is imposed. This effectively extended the ambit of the word ‘may’ and exemplified the court’s pro-arbitration stance by construing the test in a manner which lowers the required threshold. The direction came as a welcome gesture making the recourse to foreign arbitrations more accessible in Malaysia.

There are no similar provisions in the 2005 Act which pertain to the gazette notification above. Section 38(1) of the 2005 Act states that on an application in writing, an arbitral award made in respect of an arbitration where the seat is in Malaysia or an arbitral award from a foreign state may be enforced by the High Court as a judgment thereof. Prior to the Arbitration (Amendment) Act 2011, section 38(1) of the 2005 Act was silent on whether or not it applied to arbitral awards of international arbitrations in Malaysia. It is also to be noted that with regard to arbitral awards from a foreign state, section 38(1) of the 2005 Act specifies that only arbitral awards from countries that are party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations Conference on International Commercial Arbitration in 1958 are recognised. Thus, it appears that arbitral awards from countries which are not signatories to the said convention would not be recognised and cannot be enforced under the 2005 Act.

The Kuala Lumpur Regional Centre for Arbitration

There are a number of professional bodies in Malaysia such as the Malaysian Institute of Architects,47 the Royal Institution of Surveyors Malaysia,48 the Malaysian International Chambers of Commerce,49 the Institute of Engineers Malaysia50 and the Malaysian Rubber Board51, which administer and handle arbitral proceedings. However, this chapter will focus on the KLRCA as the main arbitral institution in Malaysia and its contributions to the ever-changing arbitral landscape.

The KLRCA was established in 1978 under the auspices of the Asian-African Legal Consultative Organisation (the AALCO) to provide a forum for the settlement of trade, commerce and investment disputes within the Asia-Pacific region, which it continues to do. The KLRCA was the first regional centre established by the AALCO in Asia, which aimed to provide institutional support for the conduct of domestic and international arbitral proceedings in Asia.52 The AALCO is currently made up of 47 member countries and has to date five regional centres in Cairo, Lagos, Tehran, Nairobi, and of course Kuala Lumpur.

Governments of the countries with regional centres recognise the independent status of the regional centres and as such have accorded them privileges and immunities. The immense support given by the respective governments allow the regional centres to function as autonomous international organisations.53 While the KLRCA has the support of the Malaysian government, the KLRCA is a non-profit organisation and is neither a government branch nor agency. The status of the KLRCA as an independent arbitral institution for both domestic and international arbitrations is a clear policy under both the 1952 Act and the 2005 Act.

Adoption of the revised UNCITRAL Arbitration Rules

It was decided in 2006 that the UNCITRAL Arbitration Rules should be revised to meet the changes in arbitral practice that have occurred over the past 30 years. On 25 June 2010, the revised UNCITRAL Arbitration Rules were adopted, and were effective as of 15 August 2010, by the KLRCA, making it the first arbitral institution in the world to do so. With the KLRCA adopting the revised UNCITRAL Arbitration Rules, all changes made therein are relevant to and affect arbitrations being held by the KLRCA and under the KLRCA Arbitration Rules.

The revised UNCITRAL Arbitration Rules saw more provisions being added, with the aim of filling gaps that have become apparent over the years. The revision of article 2 of the UNCITRAL Arbitration Rules shows the rules taking into account modern technology with regard to issuing and serving notices of arbitration and other communications as well as the conducting of hearings. A point to note is that when communications are conducted via e-mail or facsimile, a designated or authorised address must be used. The revision also includes the addition of article 28(4), which provides that witnesses may ‘be examined through means of telecommunication that do not require their physical presence at the hearing’, with the example of teleconferencing being given.

Article 6 of the UNCITRAL Arbitration Rules has also been revised to reduce the time a party to the arbitral proceedings needs to wait before making a request to the Secretary General of the Permanent Court of Arbitration at the Hague (the PCA) with regard to disputes relating to the appointment of an appointing authority from 60 to 30 days. In addition, it is also now expressly stated that the PCA may be requested by the parties to the arbitral proceedings to act as an appointing authority. These changes are reflected in Malaysia under section 13 of the 2005 Act, which provides for the request for appointment to be made to the director of the KLRCA.

Among the significant additions to the revised UNCITRAL Arbitration Rules relating to the conduct of arbitral proceedings are articles 17(1) and (2) where it is provided that the arbitral tribunal ‘shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute’ and the arbitral tribunal shall as soon as practicable establish a provisional timetable of the arbitration. There are also now additional provisions dealing with the issue of an arbitrator’s conflict of interest, whereby model statements of independence pursuant to a new article 11 are annexed to the revised UNCITRAL Arbitration Rules. Further, article 16 of the UNCITRAL Arbitration Rules provides a clause excluding liability of the arbitral tribunal save for intentional wrongdoing. This would most certainly guarantee that the arbitrators are able to proceed with the arbitration without fear of any negative repercussions from the parties.

Excessive tribunal remuneration would also not be possible now that article 41 of the UNCITRAL Arbitration Rules states that the fees shall be reasonable in amount. The revised UNCITRAL Arbitration Rules also require the arbitral tribunal to inform the parties to the arbitral proceedings of how it proposes to determine its fees at the soonest after the arbitral tribunal has been constituted. The parties may refer the proposal or the determination of the fees of the arbitral tribunal to the appointing authority, such as the director of the KLRCA, for review.

In addition to the foregoing discussion, the revised UNCITRAL Arbitration Rules have also seen additional provisions dealing with, as well as those mentioned earlier, multi-party arbitration and joinder, objections to experts appointed by the arbitral tribunal, which, as a whole, aim to enhance procedural efficiency and uphold reasonableness in the conduct of arbitrations such as in the determination and assessment of costs of the arbitral proceedings. With a view to propelling its status in the arbitration community, the KLRCA Arbitration Rules were revised, with certain modifications and adaptations, in line with the updated UNCITRAL Arbitration Rules.

A new lease of life

Following on from the improvements made to its Arbitration Rules, the KLRCA saw further support, in particular, from the government of Malaysia in driving the centre forward. This occasioned in the commissioning and appointing of an advisory board by the prime minister’s Department of Malaysia with effect from 15 August 2011. The advisory board is currently chaired by Tan Sri Abdul GaniPatail who has been the attorney general of Malaysia since 2002. Together with Tan Sri Abdul GaniPatail, the advisory board consists of six renowned and respected arbitrators who are active not just in Malaysia but also internationally. The main function of the advisory board is to advise the KLRCA on the centre’s strategic direction in its aim to be the preferred arbitral institution in the Asia-Pacific region as well as positioning Malaysia as an arbitration-friendly destination54.

On 27 February 2012, the KLRCA launched its revised KLRCA Fast Track Rules. The KLRCA Fast Track Rules were revised and improved after its 2010 predecessor delivered a much sought-after option to resolving commercial and transactional disputes in Malaysia.55 The revision was needed given that the 2005 Act was due for its own amendment namely the Arbitration (Amendment) Act 2011 and the coming of the Construction Industry Payment and Adjudication Bill 2011. Similar to the KLRCA Arbitration Rules, the KLRCA Fast Track Rules have been modified with the adoption of the articles of the revised UNCITRAL Arbitration Rules.

The success enjoyed thus far and the force behind the global ambition of the KLRCA can be attributed to its current director, Sundra Rajoo, who was appointed as the KLRCA’s fifth director with effect from 1 March 2010. Mr Rajoo was also appointed as the president of the Asia Pacific Regional Arbitration Group (the APRAG) on 8 July 2011. In addition, the director of the KLRCA is serving on the panel of numerous international arbitral institutions and organisations and had earlier practised as an architect and town planner. Prior to March 2010 and despite being the first regional arbitral institution to be established, the KLRCA was trailing far behind the newer arbitral centres in Singapore, Hong Kong and Australia.56 In addressing the situation back then, Mr Rajoo openly admitted that ‘even disputes which involved only Malaysian parties were going off-shore to arbitral centres around the world.’57 However, through Mr Rajoo’s vision and strive for the betterment of the KLRCA’s repute and standing, the KLRCA has progressed and grown speedily within a mere couple of years. Mr Rajoo now heads a 23-member management team compared to a paltry four member team just a year ago. Further, the KLRCA now has 556 arbitrators, most of them foreign arbitrators, on its panel compared to less than 200 previously.

With the right people steering the course of the centre, submitting disputes to arbitrations under the KLRCA and its Arbitration Rules comes with it a multitude of advantages for the parties involved. Rejuvenation efforts have also seen a push for arbitration clauses referring disputes to the KLRCA to be included in contracts by government agencies and government-linked companies, marking the increased confidence in and prominence of the KLRCA.58 Among the various factors in the KLRCA’s appeal in relation to conducting arbitral proceedings, perhaps the biggest draw can be credited to the centre’s stand in keeping costs to parties low such as capping arbitrators’ fees under the KLRCA fee schedule.59 Other benefits in choosing the KLRCA as the preferred forum include the fact that foreign lawyers are allowed to represent and appear in arbitral proceedings, the availability of a panel of experienced domestic and international arbitrators from diverse fields of expertise and experience, the administration and assistance of the KLRCA in the enforcement of arbitral awards, and, importantly, the finality and binding nature of arbitral awards rendered by the KLRCA. The finality and binding nature of the KLRCA’s arbitral awards, coupled with Malaysia being a signatory to the New York Convention, enables the KLRCA’s arbitral awards to be enforceable in countries which are also signatories.

Why choose Malaysia?

As Malaysia strives to narrow the gap between itself and Singapore as well as Hong Kong as an Asia-Pacific arbitral forum, there is no doubt that it has been zealously following the trend and manner in which both prominent arbitral nations have been advancing.

Like the introduction in the fourth edition of the Arbitration Rules of the Singapore International Arbitration Centre (the SIAC Arbitration Rules) of the availability of the expedited procedure prior to the constitution of the arbitral tribunal,60 which streamlined the procedures for limited-value disputes of S$5 million or less, the KLRCA has also introduced its own new ‘products’, such as the KLRCA Fast Track Rules (as discussed above), which were created in collaboration with the Malaysian Institute of Arbitrators. The KLRCA has acknowledged the issue with the length of arbitral proceedings and, as a result, has implemented the KLRCA Fast Track Rules to further enhance its arbitral attractiveness.

Similarly, notable features of the 2005 Act compared to and in relation to the newest Arbitration Ordinance of Hong Kong (the Hong Kong Arbitration Ordinance) include provisions which give arbitral tribunals the powers to grant interim measures such as to preserve assets or evidence or to maintain or restore the status quo. In addition, the 2005 Act as well as the KLRCA Arbitration Rules have been embraced with the potential praises of the ‘hands-off’ and ‘party autonomy’ approaches,61 which have cemented respect and trust in the Hong Kong’s system of arbitration.

In terms of national legislations and its significance to both the 1952 Act and the 2005 Act, subject to the opting-in or opting-out mechanism of part III of the 2005 Act, the 2005 Act is more in line with the approach taken by Hong Kong in unifying both its domestic and international regimes in the Hong Kong Arbitration Ordinance of 1 June 2011. On the contrary, Singapore still maintains separate legislations for domestic arbitrations, which are governed by the Arbitration Act (chapter 10), and international arbitrations, which are governed by the International Arbitration Act (chapter 143A). The move in unifying and harmonising the laws of arbitration in Malaysia is indicative of a less complex and more accessible arbitral regime in its future.

It is also noteworthy to highlight the efforts of the KLRCA in establishing arbitration rules for the resolution of disputes relating to Islamic banking by the making of the Rules for Arbitration of Kuala Lumpur Regional Centre for Arbitration (Islamic Banking and Financial Services) (the KLRCA Arbitration Rules (Islamic Banking and Financial Services) or the KLRCA Rules for Islamic Banking and Financial Services Arbitration, which came into effect in 2007. Such facilitative mechanism for the resolution of disputes arising out of or in connection with any commercial contract, business arrangement or transaction that is based on Shariah principles is unique to Malaysia, therefore boosting its attractiveness on top of its other advantages.

The future is bright

Although Malaysia is still growing as an arbitral forum, its position among the regional players will no doubt rise as the Malaysian arbitration community continues to receive favourable feedback and support from its government, judiciary system and legal practitioners as well as traders and conglomerates. The road to success is inevitably long and tough, as along the way many obstacles and hurdles are to be expected and crossed. Given that Malaysia still has some way to go before it is able to reach the heights attained by the Singapore International Arbitration Centre and Hong Kong International Arbitration Centre, a series of judicial implementations and determinations, clarifications and adjustments is, at the very least, necessary.

All the hard work and perseverance put in by dedicated members of the arbitration community in Malaysia is beginning to bear fruit. Notwithstanding the course ahead, and in light of the above, the hope and optimism shared among the arbitration community can summed up simply and confidently: the future is bright.

Notes
1 Michael J Moser, Arbitration in Asia (Release No. 1, JurisNet, LLC 2009) MAL-3
2 Michael J Moser, Arbitration in Asia (2nd Edition, Juris Publishing Inc 2008) Chapter 14, www.jurispub.com/cart.php?m=product_detail&p=2754 (accessed 14 March 2012)
3 Tan Sri Cecil Abraham, Malaysia - National Report - World Arbitration Reportor (2nd Edition, Juris Publishing Inc 2011)
4 Grace Xavier, Law and Practice of Arbitration in Malaysia (Sweet & Maxwell Asia 2008) 6-7
5 W S W Davidson, The Malaysian Arbitration Scene: The Relationship between the Courts and the Arbitral Tribunals in the 21st Century (Speech given on 16 November 2005), www.malaysianbar.org.my/adr_arbitration_mediation/
the_malaysian_arbitration_scene_the_relationship_between_the_courts_
and_the_arbitral_tribunal_in_the_21st_century.html (accessed 14 March 2012)
6 2008 7 MLJ 757
7The plaintiff and the defendant had entered into a building contract in 2002, which contained an arbitration clause making reference to the 1952 Act. In July 2007, legal proceedings in the High Court were commenced and an application was made under Section 10 of the 2005 Act for a stay of proceedings. In view of the fact that the building contract between the parties were entered into prior to the commencement of the 2005 Act and the existence of the aforementioned express reference to the 1952 Act, the court took the view that the 1952 Act would apply.
8 2008 7 MLJ 757 at [56]
9 2008 8 MLJ 471
10 2007 10 CLJ 318
11 2009 1 LNS 420
12 2009 1 CLJ 942
13Section 34 provides for the Act not to apply to certain arbitrations
14Section 34(1) Arbitration Act 1952
15Section 27 Arbitration Act 1952
16Section 42 Arbitration Act 2005
17Section 45 Arbitration Act 2005
18Section 46 Arbitration Act 2005
19Section 13(7) Arbitration Act 2005
20 2008 1 MLJ 233
21 2008 6 MLJ 561
22Section 6 Arbitration Act 1952 and Section 10 Arbitration Act 2005
23Section 13 Arbitration Act 1952 and Section 11 Arbitration Act 2005
24Section 27 Arbitration Act 1952 and Section 38 Arbitration Act 2005
25 1998 2 MLJ 20
26 2002 1 CLJ 433
27 2008 5 CLJ 654
28 2008 5 CLJ 654 at [10]
29 2008 5 CLJ 654 at [26]
30Section 42(1A) Arbitration Act 2005
31 2009 9 CLJ 32
32 2010 5 CLJ 32
33 2010 7 CLJ 785
34 2010 7 CLJ 785 at [56]
35 2010 3 CLJ 634
36 2010 9 CLJ 532
37 2008 6 MLJ 561
38 2010 2 CLJ 420
39 2010 2 CLJ 420 at p440
40 2010 5 CLJ 83
41 2009 1 LNS 1321
42 2010 4 MLJ 332
43 2010 4 CLJ 914
44 2006 3 MLJ 117
45 2009 3 MLJ 289
46 2010 1 CLJ 137
47 Pertubuhan Akitek Malaysia, www.pam.org.my
48 Royal Institution of Surveyors Malaysia, www.rism.org.my/
49 ICC Malaysia, www.iccmalaysia.org.my/
50 The Institution of Engineers Malaysia, www.myiem.org.my/
51 Lembaga Getah Malaysia, www.lgm.gov.my/
52 Corporate Info, Kuala Lumpur Regional Centre for Arbitration, www.klrca.org.my/scripts/view-anchor.asp?cat=2 (accessed 8 March 2012)
53 AALCO, Kuala Lumpur Regional Centre for Arbitration, www.klrca.org.my/scripts/view-anchor.asp?cat=2 (accessed 8 March 2012)
54 Advisory Board, Kuala Lumpur Regional Centre for Arbitration, www.klrca.org.my/scripts/view-anchor.asp?cat=2 (accessed 8 March 2012)
55 The Launch of the KLRCA Fast Track Rules 2nd Edition 2012, Kuala Lumpur Regional Centre for Arbitration, www.klrca.org.my/news/ (accessed 10 March 2012)
56 New Life for Arbitration, The Star Online, http://biz.thestar.com.my/news/story.asp?file=/2011/1/1/business/7719437&sec=business%3C/a%3E (accessed 13 March 2012)
57 Global Arbitration Review, www.globalarbitrationreview.com
58 ‘KLRCA will be accompanying MIDA (Malaysian Industrial Development Authority) and MITI (Ministry of International Trade and Industry) on future international trade missions’ - Sundra Rajoo, reported on 1 January 2011 in The Star
59 Fee Structure (International and Domestic Arbitration), Kuala Lumpur Regional Centre for Arbitration, www.klrca.org.my/scripts/view-anchor.asp?cat=10#16 (accessed 10 March 2012)
60 Rule 5 of the Arbitration Rules of the Singapore International Arbitration Centre, 4th Edition
61 Ma, Geoffrey, Foreword of Hong Kong Arbitration: A User’s Guide (Kluwer Law International 2004)