Construction arbitration agreement or clause in Malaysia (Klavdiya Yessenzhulova)

Construction arbitration agreement or clause in Malaysia

Klavdiya Yessenzhulova

Construction arbitration as well as the arbitration in Malaysia is governed by the Arbitration Act 2005. Unfortunately, there is no definition of arbitration in this Act. Sir John Romilly MR defined ‘arbitration’ as «a reference to the decision of one or more persons, either with or without an umpire, of some matters in difference between the parties»[1]. Meanwhile, in comparison to the UK, where there is also no statutory definition of the arbitration in the Arbitration Act 1996, it is defined broader, as «a process used by the agreement of the parties to resolve disputes»[2], which is more correct according to its content and practice of arbitration. Hence, in the UK provided clearer definition that it is not only according to the award of the arbitrator or arbitrators, however, about the whole process of dispute resolution that is named ‘arbitration’. Taking for consideration the fact that Arbitration Act 2005 is based on the UNCITRAL Model Law on International Commercial Arbitration 1985[3] the following definition of the arbitration should be taken for consideration as there is no statutory definition in Malaysian law: «any arbitration whether or not administered by a permanent arbitral institution»[4]. Again, there is no clear definition of the arbitration and UK approach is more understandable.

Despite the fact that there is no definition of arbitration, however, the Arbitration Act 2005 defines that the arbitration can be as domestic so international. Unless the content requires in another manner, the ‘domestic arbitration’ means any arbitration that is not international[5]. Hence, the domestic arbitration is any arbitration that is not international. In this regard, the key point is to define the meaning of ‘international arbitration’.

If there is no other meaning, the ‘international arbitration’ is established as the arbitration where:

«(1) one of the parties to an arbitration agreement, at the time of conclusion of that agreement, has its place of business in any State other than Malaysia;

(2) one of the following is situated in any State other than Malaysia in which the parties have their places of business:

a) the seat of arbitration if determined in, or pursuant to, the arbitration agreement;

b) any place where a substantial part of the obligations of any commercial or other relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or

(3) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one State[6].

Hence, with regard to this norm for being international arbitration there should be a foreign element, other than Malaysia (party to the agreement is from another country, place of business of one of the parties is in another state, the parties expressly agreed that the arbitration agreement relates to more than one state). When the party has its place of business at another country, the following rule in international arbitration is applicable: the seat of arbitration can be determined by the agreement, and, therefore, the applicable law, arbitration rules can be decided in international arbitration. If there is no such agreement, any place and/or country, where «a substantial part of obligations of any commercial or other relationship» to be performed or ‘the subject matter is most closely connected’[7] with regard to the general principles of the conflict of laws[8].

For understanding what does it mean ‘closely connected’, the following is applicable:

a) «where a party has more than one place of business, reference to the place of business is that which has the closest relationship to the arbitration agreement»[9], or

b) «where a party does not have a place of business, reference to the place of business is that party’s habitual residence»[10].

At the same time should be taken for consideration also case law practice. In the Tan Sri Dato’ Seri Vincent Tan Chee Yioun v Jan De Nul (M) Sdn Bhd [2019] 1 MLJ 557 it was stated another view that «for the purposes of determining whether a particular agreement was an ‘international arbitration’, the only requirements of para (a) were that: «(1) a party; (2) to an arbitration agreement; and (3) to have its place of business in any State other than Malaysia». Thus, it provided that if the company has its business in any other State than Malaysia is a party to an arbitration agreement. However, such approach gives even more difficulties as there can be situations when a company can have place of business in several states such as multinational enterprises. Hence, it should be taken for consideration that in this case, it was clear that one of the parties was not a Malaysian party. Therefore, it is applicable when it is easy to understand that one of the parties is from Malaysia.

Additionally, the Arbitration Act 2005, except Section 3, provides the possibility to the parties to determine certain issues, such freedoms include «the right of the parties to authorize the third party, including an institution, to determine the issue»[11], in other words the arbitrability of the certain dispute. This provision was added because if there is no precise name of the arbitration institution to resolve the dispute, where it is just stated that «the dispute should be resolved by arbitration» or «the dispute shall be resolved in accordance with Arbitration Act 2005». In such situations as the default procedure should be used ad hoc[12]. Nonetheless, it should be stated that there is no word as ‘ad hoc’ in Arbitration Act 2005. However, the procedure of ad hoc is implemented in Section 13 of the Arbitration Act 2005, providing that the ad hoc in Malaysia is presented by the AIAC appointment of one or three arbitrators[13], depending on the default arbitration clause conditions, the kind of arbitration, agreements between the parties. In general, in ad hoc parties decide what will be the applicable procedure[14]. Such as what rules will be applicable to the ad hoc arbitration. For instance, UNCITRAL Arbitration Rules 2021. However, when the procedure is not clear, sometimes the issues according to the procedure are issued to the arbitral tribunal[15]. If there is no agreement between the parties according to the appointment of arbitrator or arbitrators, in case of international arbitration there should be three arbitrators, in case of international arbitration, and one arbitrator in domestic arbitration clauses[16].

As it can be seen that differentiation of domestic and international arbitration is not only important for general understanding, it is needful for proper usage of the Arbitration Act 2005 norms. Additionally, the key role plays the seat of arbitration, which is defined as «the place where the arbitration is based as determined in accordance with the section 22» of the Arbitration Act 2005[17].Without any doubt, parties are free to determine the seat of arbitration[18]. However, this Act is applicable to domestic and international arbitrations only with the seat of Arbitration in Malaysia[19]. This is what is common for both domestic and international arbitration.

In addition, there are also some joint features between them. To illustrate, for domestic and international arbitration should be applicable Parts І, II and IV of the Act. However, the most interesting its Part III, which is applicable to domestic arbitration, generally, unless the parties agree otherwise in writing. While for international arbitration it is not applicable in general, and it only can be used if parties specifically agree to apply it in writing.

Hence, if to compare these kinds of arbitration, with domestic arbitration the situation is clearer in comparison with the international arbitration. International arbitration with regard to Arbitration Act 2005 is applicable only to cases when one of the parties is from another state or has a place of business in another state or even when both parties are not from Malaysia and:

a) there is an agreement to apply the Malaysian law between the parties;

b) where a substantial part of the obligations of any commercial or other relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected is Malaysia;

c) the parties agreed to refer this matter to the certain institution that decided to apply Malaysian law.

For proper understanding the applicability of arbitration clause or agreement, it is important to understand the content of ‘the agreement’, ‘arbitration agreement’. According to ‘the agreement’, Section 2(2)(c) of the Arbitration Act 2005 establishes: «where a provision of this Act refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, that agreement shall include any arbitration rules referred to in that agreement». Hence, in other words the agreement is defined as an agreement in which there should be the arbitration rules to be used. In other words, the agreement means an arbitration agreement, where parties should agree on the applicable arbitration rules. In case the parties have not decided applicable arbitration rules, as the default procedure, following the stated before Section 2(b) of the Act the parties can authorize the third party, including institution to decide this issue.

However, it should be taken for such consideration by the institution, the certain exact arbitration institution shall be mentioned such as ICC Malaysia, BICAM, AIAC and many others. It is important because if the arbitration clause will be stated as «just arbitration» without certain name it will be ad hoc arbitration[20]. Hence, the parties have five solutions in case of default agreement:

1) agreement by the parties with regard to the certain arbitration institution to resolve their dispute;

2) agreement by the parties to refer this issue to the arbitration tribunal or without such an agreement with regard to the doctrine of competenz-competenz[21];

3) apply to court for deciding this issue;

4) resolve the dispute with regard to ad hoc arbitration procedure.

However, the parties should take for consideration that in case they apply to court for deciding the issue, the «court before which proceedings are brought in respect of the matter which is the subject of an arbitration agreement shall, where a party makes an application before taking any other steps in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds the agreement null, void, inoperative[22] or incapable of being performed»[23]. Hence, for applying to the court the party that apply should:

1) apply to the court;

2) do not make any other steps in the proceedings;

3) provide the proof that the agreement is «null, void, inoperative or incapable of being performed».

However, should be taken for consideration that due to the policy of minimal curial intervention the courts have limited powers as «[n]o court shall intervene in matters governed by the» Arbitration Act 2005, «except where so provided» in it»[24]. It is in the court discretion, with regard to the presented evidence to stay the proceedings and refer the parties to arbitration or decide that the agreement is «null, void, inoperative or incapable of being performed»[25].

In addition, a plea that the arbitral tribunal with regard to the absence of jurisdiction shall be raised «not later than the submission of the statement of defence»[26]. An application that the arbitrator or arbitral tribunal exceeds the scope of its authority shall be raised as soon as the issue went «beyond the scope of its authority during the arbitration proceedings»[27]. Nonetheless, the party is able to apply to the court according to the absence of jurisdiction of the arbitrator or arbitral tribunal or that the arbitrator or arbitral tribunal exceeds its authority even after if the delay is justified[28].

With regard to ‘arbitration agreement’, it is defined as «agreement by the parties (even unilateral)[29] to submit to arbitration[30] all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.»[31] Hence, the term «arbitration agreement» is more precise, however, the definition ‘agreement’ shall also be taken for consideration as it also refers to arbitration. According to its meaning, both ‘agreement’ and ‘arbitration agreement’ due to its content are arbitration agreement and/or arbitration clause, which creates uncertainty.

Even in the Arbitration Act 2005 there are two words ‘agreement’ and ‘arbitration agreement’ that refer to arbitration, the definition of the arbitration agreement is more precise and clear rather then ‘agreement’. For the arbitration clause, there are the following requirements. It can be in a form of an arbitration clause[32] in a contract or arbitration agreement[33], which should be in writing[34].

For avoiding uncertainties, the Arbitration Act 2005 provides definition ‘in writing’ as:

«a) a document signed by the parties;

b) an exchange of letters, telex, facsimile or other means of communication which provide a record of the agreement[35]; or

c) an exchange of statement of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other»[36].

Taking for consideration the content of writing, it means that the parties should be attentive as they can change, exclude or even create an arbitration clause or agreement just by exchange of letters or other means of communication that allows recording the agreement or even by exchange of the statement of claim and defence.

At the same time, it should be noted that with regard to the Ajwa for Food Industries Co (MIGOP), Egypt v Pacific Inter-Link Sdn Bhd [2013] 5 MLJ 625, it was held that there is no need to sign in order the arbitration clause to be valid for «an agreement making reference to a document containing» such a clause according to Sections 9(3) and 9(4) of the Arbitration Act 2005[37]. Nonetheless, it should be noted that lack of care in drafting the arbitration clause or agreement with clarity and certainty can become the subject of litigation. For instance, in Innotec Asia Pacific Sdn Bhd v Innotec GMBH [2007] 8 CLJ 304 the arbitration clause was void due to uncertainty[38].

Thus, with regard to the Law and Practice Commercial Arbitration in England by Mustill and Boyd, Bauer (M) Sdn Bhd v Daewoo Corp [1999] 4 MLJ 545: «Most agreements refer existing disputes to arbitration are made expressly, and usually in writing rather than orally. But an agreement to arbitrate a dispute and to be bound by the arbitrator’s award may be inferred from the conduct of the parties without any express agreement. The most usual case of such an agreement is where an arbitrator is already in progress under an existing express agreement and a fresh claim is brought before the arbitrator, which is outside the scope of the original agreement». This position is also stated in the Section 9(5) of the Arbitration Act 2005 where it is stated: «A reference in an agreement to a document containing an arbitration clause shall constitute an arbitration agreement, provided that the agreement is in writing and the reference is such as to make that clause part of agreement».

In addition, according to the Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1981] 3 All ER 577 it is established: «If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it, on the faith of which each of them to the knowledge of the other acts and conducts their mutual affairs, they are bound by that interpretation just as if they have written it down as being a variation of the contract. There is no need to inquire whether their particular interpretation is correct or not, or whether they were mistaken or not, or whether they had in mind the original terms or not. Suffice it that they have, by the course of dealing, put their own interpretation on their contract, and cannot go back on it». Hence, the conduct of the parties is very important when there is no arbitration agreement or clause when it is unclear, because it has decisive effect. It refers to situations when one party states that there is an arbitration clause or agreement, while other refuses. In such situation, the presence of an arbitration clause or agreement is very disputable. However, there are also other position in court decisions that should be taken for consideration.

So how should parties behave if one party agrees that there is an arbitration clause or arbitration agreement while the other party disagrees? In the Bauer (M) Sdn Bhd v Daewoo Corp [1999] 4 MLJ 545, it is also clarified: «to begin with, it is important to recognise that the foundation of an arbitrator’s jurisdiction is the agreement entered into between the disputants. Absent of such an agreement, there is no jurisdiction». Accordingly, a party who appears with or without protest and takes part in proceedings before an arbitrator is not precluded from later challenging the award of such arbitrator on the lack of jurisdiction». From one side this case states that even without a protest the party can challenge the award due to the lack of jurisdiction. However, currently, it is not true. As there were made amendments in this part. Currently a party, who knows about any provision of the Arbitration Act 2005 «from which the parties may derogate or any requirement under the arbitration agreement has not been complied with, and yet proceeds with the arbitration without stating its objection to such noncompliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived its right to object»[39]. It means that the party participating in the arbitration proceedings can object due to the lack of jurisdiction only if that party stated about such a situation in due manner and with regard to the established procedure and time period[40] stated above.

Hence, in situations when there is no clarity about applicability or existence of the arbitration clause or agreement, and one of the parties object on its applicability, according to Giffen (Electrical Contractors) Ltd v Drake & Scull Engineering Ltd (1993) 37 Con LR 84 «… it follows that we have to look very closely at the particular language of the provisions that we have to construe and the particular circumstances of the contract in question… І think to be cautious in reasoning from one case to another since cases appear to turn very much on their own particular terms and their own particular facts». Hence, in such situations we should be very attentive to the content and provisions of the contract for defining presence or absence of the arbitration clause.

As pursuant to Rao v Balabhandra 1954 AIR Mad 71 it is stated: «When a contract in writing is signed by parties, they are bound by the terms contained therein whether they take the trouble of reading them or not. This principle has been extended to cases where the contract does not actually contain the terms but reference is made to another document or contract where those terms are to be found. The reason for holding those terms must be taken to have been incorporated by reference to their signed agreement is that it was possible to any of them to look into that document and ascertain the terms… It is essential that the terms of the agreement must be precise and definite. This applies as much to an arbitration agreement as to other agreements. Before holding that the parties have agreed in writing to refer the dispute to arbitration and in the absence of such a clause in the agreement actually signed by the parties there must be at least specific contract or document containing such a clause in respect of which it might be said that it had been incorporated in the agreement of the parties by reference». Hence, if there is no precise arbitration clause or agreement in a certain dispute, the reference in the other document or agreement, where there is an arbitration agreement, there must be precise information that the arbitration clause or agreement in another contract is incorporated in the present dispute and agreement, where there is no arbitration clause or agreement. To illustrate, in the Boasted Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 it is stated: «… the documents on their true construction do not have the effect of incorporating the arbitration clause by reference as contended by the appellant». Hence, there should be clear and precise words that the arbitration clause from the main contract is incorporated in another contract such as a subcontract.

According to the Abu Road Electricity & Industries Co Ltd 1977 AIR Cal 488 «the following principles regarding the incorporation of the provisions of one agreement into another agreement appear to have been laid down:

a) a clause in an earlier case contract can be imported into a subsequent contract if the language is appropriate unambiguous and clear;

b) such clause in the earlier contract can be written in bodily into the later contract if there is no inconsistency or vagueness or uncertainty;

c) a clause in the earlier contract which is germane to the subject-matter of the later contract may be incorporated therein by general words though some degree of manipulation can be involved;

d) in respect of the clause in the earlier or subsequent contract such clause can only be incorporated in the later contract by clear words in the earlier subsequent contract».

Hence, with regard to this information for excluding possible disputes, there should be precise words that the arbitration clause from one agreement is applicable to another contract such as a subcontract, for instance.

According to construction arbitration, it is common practice that one contract is connected with another and some provisions are incorporated in another contracts. In such situations often used the phrase «back-to-back» with which it is recommended to be attentive. From one side with regard to the Agibs Engineering & Construction Sdn Bhd v Paragon Advance Solutions Sdn Bhd [2011] MLJU 1546 it is stated: «back-to-back» basis with regard to the main contract and subcontract is a matter of s true interpretation of the contract». It means that deciding is there an arbitration clause or agreement, it is recommended to look at each provision of the contract and look through the certain contract attentively and the precise situation, as they can be different. Taking for consideration also the doctrine of separability of the arbitration clause, which means that the arbitration clause or arbitration agreement is separate from a contract[41]. To illustrate, in case when the law applicable to the contract was Indian law, the venue of the arbitration was Kuala Lumpur and the applicable law for the arbitration clause was English law, the seat was London because English law was decided as the law of arbitration[42].

However, due to the Redman Sdn Bhd v PSI Incontrol Sdn Bhd [2018] 6 MLJ 281 it was said that «according to construction circle, the phrase «back-to-back» basis has been used in the conditional payment sense which is often referred to as ‘pay when paid». Hence, with regard to the common law this provision is used with regard to the payment, not the arbitration clause.

It should be taken for consideration as there are various understanding and approaches to this phase, the phrase is disputed, and there is no clear meaning for the possibility to refer the arbitration clause from the main contract to the subcontract. To add, according to Infraprima Construction Sdn Bhd v Budaya Restu Sdn Bhd [2021] MLJU 1255 it is stated: «although commonly used in subcontracts, it ambiguous and often leads to misunderstandings and evenly disputes… Hence, meaning of the ‘back-to-back’ basis has to be interpreted contextually and objectively based on the contractual provisions and background circumstances of each case». Hence, this case approaches the same position as in the Redman Sdn Bhd v PSI Incontrol Sdn Bhd. To illustrate, there was a case when due to the first written agreement the entire agreement clause in the written agreement prevented the arbitration clause in that agreement from being extended to another written agreement[43].

According to arbitrability of subject matter, in general it is governed by the section 4(1) of the Arbitration Act 2005, which is as follows: «any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by the arbitration unless the arbitration agreement is contrary to public policy or the subject matter is not capable of settlement by the arbitration under the laws of Malaysia».

Following the content of this norm there are two exceptions: contrary to the public policy and subject matter is not capable of settlement by the arbitration under the laws of Malaysia.

Section 37(2) of the Arbitration Act 2005 defines ‘contrary to the public policy’ as follows:

a) «the making of the award was induced or affected by fraud or corruption; or»

b) «a breach of the rules of natural justice occurred -

i) during the arbitral proceedings; or

ii) in connection with the making of the award.»[44]

The laws of Malaysia state that public rights or other interests of the third parties or where the dispute is plainly covered by a statutory norm that provides «for unalienable access to courts», the rights according to the National Land Code of Malaysia also are exceptions for arbitration.[45]

According to the natural justice, the Federal Constitution of Malaysia defines it as «No member of such a service as aforesaid shall me dismissed or reduced in rank without being given a reasonable opportunity of being heard»[46]. Hence, with regard to Section 37(2) the right to be heard is one of the essential rights to the parties, breach of which can even lead to the dispute to be not arbitrated. Thus, for the possibility to enforce the arbitral award parties should follow the law and do not breach natural justice principle during the arbitral proceeding or in connection with the making of the award.

According to the rights of courts in such situations, it should be taken for consideration that the jurisdiction of the High Court in Malaysia «is to correct an arbitral error, not to exercise an appellate jurisdiction whereby the decision» of a certain arbitrator «can be made subject to rehearing»[47]. Because «the fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration shall not, by itself, indicate that a dispute about that matter is not capable of determination by arbitration[48].

In addition, with arbitration clause and agreements, it is required to be attentive. According to Waverly Jute Mills Co Ltd v Raymon & Co 1963 AIR SC 90 it is established: «An agreement for arbitration is the very foundation on which the jurisdiction of arbitrators to act rests and where that is not in existence at the time when they enter on their duties, the proceedings must be held wholly without jurisdiction».

In conclusion, construction arbitration clauses are very important issues in Malaysia. There are several uncertainties about the presence or absence of the arbitration clause and the possibility to establish or refuse from its existence. Hence, with regard to the uncertainties what to state as the arbitration clause, it is recommended to write them clearly, include information about the certain arbitration institution to resolve the dispute. Because in case of absence of the arbitration institution’s name, the ad hoc arbitration would be applicable in Malaysia. Additionally, it is suggested to write the applicable arbitration rules to the dispute. Without any doubt parties can resolve this issue during the court proceedings or by their agreement, however, not always it is applicable in practice with the parties who are in dispute. According to the possibility to use the arbitration clause from the another agreement, it is recommended to be very cautious, because sometimes it can create even more uncertainties. Hence, there should be clear words that in one agreement there is reference to the arbitration clause from the other agreement. Generally, it is decided by case-to-case basis. Sometimes it is advised to be more attentive with the phrase ‘back-to-back’ basis as it creates even more ambiguity. In general, it refers to payments, not arbitration. However, due to the absence of the clarity in the case law, it is prescribed to write clearly that arbitration clause from one contract is applicable to another with regard to the doctrine of separability. Without any doubt due to the principle competenz-comptenz the arbitrator or arbitral tribunal decides the jurisdiction and courts tend not to interfere is such situations in general, unclear arbitration clauses create many problems. Hence, for excluding such situations it is important to be very attentive in creating arbitration clause especially in construction and write clearly arbitration clause or agreement with stating the certain institution for institutional arbitration or write just the word «arbitration» for ad hoc as the default procedure. However, for both kinds of arbitration it is proposed to write the applicable arbitration rules for excluding additional disputes on this part in future. Hence, it is upholded to be very attentive with the arbitration clause and write it clearly for excluding possible disputes of it.

[1] Collins v Collins (1858) 26 Beav 306, 53 ER 916; Chow Yoke Pui v Tan Tuan Boon [1971] 1 MLJ 190.

[2] Halsbury’s Laws of Malaysia (5^th edn, 2023) Volume 2.

[3] Sharon Chong Tze Ying and Muhammad Suhaib Bin Mohamed Ibrahim, ‘Commercial Arbitration: Malaysia (Global Arbitration Review, April 2023) <Sharon Chong Tze Ying and Muhammad Suhaib Bin Mohamed Ibrahim, ‘Commercial Arbitration: Malaysia> accessed 14 January 2024.

[4] Sundra Rajoo, Law, Practice and Procedure of Arbitration (LexisNexis 2017).

[5] Arbitration Act 2005, s. 2(1).

[6] Arbitration Act 2005, s. 2(1).

[7] Sabah Shipyard Sdn Bhd v Public Leasing and Factoring Sdn Bhd [1999] 6 MLJ 369; Y K Fung Securities Sdn Bhd v James Capel (Far East) Ltd [1997] 2 MLJ 621; James Capel (Far East) Ltd v Y K Fung Securities Sdn Bhd (Tan Koon Swan, Third Party)[1996] 2 MLJ 97; Berjaya Industrial Bhd v Public Bank (L) Ltd[1996] 5 MLJ 389; A-G of Hong Kong v Zauyah Wan Chik[1995] 2 MLJ 620; ‘The Vishva Apurva’, Owners of Cargo lately laden on board the Ship or Vessel ‘Vishva Apurva’ v Owners and other persons interested in the Ship or Vessel ‘Kalidas’[1991] 2 MLJ 440, [1991] SLR 475; Dayasar Corp Sdn Bhd v CP Ng & Co Sdn Bhd[1990] 1 MLJ 191; ‘The Asian Plutus ’, Owners of Cargo lately laden on board the Ship or Vessel ‘Asian Plutus’ v Owners and other persons interested in the Ship or Vessel ‘Asian Plutus’[1990] 2 MLJ 449, [1990] SLR 543; Four Seas Communication Bank Ltd v Sim See Kee [1990] 3 MLJ 226, Re Letter of Request from the Court of New South Wales for the Prosecution of Peter Bazos (Deposition Proceedings)[1989] 3 MLJ 408 [1989] SLR 591; Staravia Ltd v Consolidated Aeronautics Corp[1989] 3 MLJ 453, [1989] SLR 883.

[8] Halsbury’s Laws of Malaysia (5^th edn, 2023) Volume 2.

[9] Arbitration Act 2005, s. 2(a)(і).

[10] Arbitration Act 2005, s. 2(a)(ii).

[11] Arbitration Act 2005, s. 2(b).

[12] Sundra Rajoo, Law, Practice and Procedure of Arbitration (LexisNexis 2017).

[13] Arbitration Act 2005, s. 13; Rabindra S. Nathan and others, International Arbitration 2023’ (Chambers and Partners, 24 August 2023) <https://practiceguides.chambers.com/practice-guides/comparison/733/11382/18468-18469-18470-18471-18472-18473-18474-18475-18476-18477-18478-18479-18480> accessed 15 March 2024.

[14] Sundra Rajoo, Law, Practice and Procedure of Arbitration (LexisNexis 2017).

[15] Sundra Rajoo, Law, Practice and Procedure of Arbitration (LexisNexis 2017); Nigel Blackaby KC and others, Redfern and Hunter on International Arbitration (6^th edn, OUP 2015).

[16] Arbitration Act 2005, ss. 12(2), 13(3).

[17] Arbitration Act 2005, s. 2(1).

[18] Arbitration Act 2005, s. 22(1); Sintrans Asia Services Pte Ltd v Inai Kiara Sdn Bhd [2016] 2 MLJ 660; the Government of India v Petrocon India Ltd [2016] 3 MLJ 435; Masenang Sdn Bhd v Sabanilam Enterprise Sdn Bhd [2021] 6 MLJ 255.

[19]Arbitration Act 2005, s. 3.

[20] Sundra Rajoo, Law, Practice and Procedure of Arbitration (LexisNexis 2017).

[21] Fiona Trust & Holding Corporation and Others v Privalos and Others [2007] 4 All ER 951; Arbitration Act 2005, s 18.

[22] Petroleum Operating Company Sdn Bhd v Mikuni (M) Sdn Bhd & Ors [2021] 7 CLJ 544; Marnell Corrao Associates Inc v Sensation Yachts Ltd [2000] 15 PRNZ 608.

[23] Arbitration Act 2005, s. 10(1); Raukura Moana Fisheries Ltd v The Ship ‘Rina Zharkikh’ [2001] 2 NZLR 801; Lembaga Pelabunan Kelang v Kuala Dimensi Sdn Bhd [2011] 2 MLJ 606; AV Asia Sdn Bhd v MEASAT Broadcast Network System (M) Sdn Bhd [2011] 8 MLJ 792; Majlis Perbandaran Alor Gajah Iwn Sunrise Teamtrade Sdn Bhd [2014] 7 MLJ 570; Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 6 MLJ 417; Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd [2020] 3 MLJ 545, FC; Yeo Eng Lam v Infinity Vantage Sdn Bhd [2020] 4 MLJ 835; Kejuruteraan Sinar Selaseh Sdn Bhd v Global Built Sdn Bhd [2020] MLJ 442; GJ Consultancy Sdn Bhd v Gan Teck Lim [2021] 12 MLJ 276; Tech Art Sdn Bhd v Konsesi Kota Permatamas Sdn Bhd [2021] 12 MLJ 614; IFCI Ltd v Archipelago Insurance Ltd [2022] 2 MLJ 971, CA; Malaysia Offshore Mobile Production (Labuan) Ltd v PCPP Operating Company Sdn Bhd [2022] 8 MLJ 130; MISC Bhd v Cockett Marine Oil (Asia) Pte Ltd [2022] 8 MLJ 786; Malaysia Offshore Mobile Production (Labuan) Ltd v PCPP Operating Company Sdn Bhd [2022] 8 MLJ 130; Padda Gurtaj Singh v Tune Talk Sdn Bhd [2022] 4 MLJ 257, CA; Cockett Marine Oil (Asia) Pte Ltd v MISC Bhd [2022] 6 MLJ 786, CA; Abd Rahman bin Soltan v Federal Land Development Authority [2023] 4 MLJ 318; Borneo Samudera Sdn Bhd v Siti Rahfizah bt Mihaldin [2008] 6 MLJ 817; CMS Energy Sdn Bhd v Poscon Corp [2008] 6 MLJ 561; Mersing Construction and Engineering Sdn Bhd v Kejuruteraan Bintai Kindenko Sdn Bhd [2011] 3 MLJ 264; CLLS Power System Sdn Bhd v Sara Timur Sdn Bhd [2015] 11 MLJ 485; Juaramedic Sdn Bhd v MRCB Engineering Sdn Bhd [2017] 11 MLJ 427; Mun Seng Fook v AIG Malaysia Insurance Bhd (formerly known as Chartis Malaysia) [2019] 7 MLJ 59; Nautical Supreme Sdn Bhd v Jaya Sudhir a/l Jayaram [2019] 3 MLJ 166, CA and Jaya Sudhir a/l Jayaram v Nautical Supreme Sdn Bhd [2019] 5 MLJ 1, FC. See also FAMG Idaman Resources v Jasmadu Sdn Bhd [2020] 7 MLJ 263; Kebabangan Petroleum Operating Co Sdn Bhd v Mikuni (M) Sdn Bhd [2021] 1 MLJ 693, CA; Koperasi Permodalan Felda Malaysia Bhd v Alrawda Investment For Real Estate Development & Projects Management Co Ltd [2021] 7 MLJ 647; Samling Resources Sdn Bhd v Ekovest Bhd [2022] 9 MLJ 803; Macsteel International Far East Ltd v Lysaght Corrugated Pipe Sdn Bhd [2023] 4 MLJ 551.