KDN No.: PP8686/07/2013(032886)

MIArbN E W S L E T T E R

TheNewsletterof TheMalaysianInstitute of Arbitrators

ContentsNote From President 1

Past Events2013–2014 3

Article: Will the Right to ChooseOne’s Representation inSabah Be Limited? 4

Article: Alternative DisputeResolution — What’s theReal Alternative? 7

Article: Section 37 of theArbitration Act 2005— Recent Decisions 12

Events 16

Upcoming Events 25

New Members/Upgradefor Session May2013 to April 2014 26

Dear Members,I took the reins from the very able Chang Wei Mun in June 2013 and it has been bothchallenging and rewarding. I have a very committed and supportive Council and Secretariatand it is both a privilege and an honour to be working with such good company.

This is the first newsletter produced by Victoria Loi, our Editor. I thank and congratulate her andall who have contributed for a job well done. There are several articles in this newsletter whichI hope you will find informative and useful.

It has been busy.

For the uninitiated, The Malaysian Institute of Arbitrators (“MIArb”) runs the Diploma in InternationalArbitration programme in collaboration with Brickfields Asia College (“the BAC-MIArb Diploma”).The programme has several intakes in a year and each intake typically runs over severalweekends, culminating in a written assessment. My special thanks go to Ooi Huey Miin, Headof the BAC-MIArb Diploma Committee, who in addition to coordinating and lecturing extensivelyon the programme, has successfully undertaken the tremendous task of revising its syllabus.My thanks also go to Lai Sze Ching, Hor Shirley, Chang Wei Mun, Ow Sau Pin, Victoria Loi andJoshua Chong who have contributed in making the programme a success.

We have conducted a series of Short Courses on Construction Law and Alternative DisputeResolution, in partnership with The Institution of Engineers, Malaysia (IEM), Pertubuhan AkitekMalaysia (PAM) and Royal Institution of Surveyors Malaysia (RISM). My thanks go to Lai SzeChing for spearheading this.

We had a Membership Upgrade Course in January 2014. My thanks go to Jonathan Yoon fororganising this and to all our lecturers and assessors for making it possible. The MembershipUpgrade Course has also resulted in MIArb gaining additional Members.

We have had several short “after-work” evening talks by distinguished speakers on a diverserange of topics, ranging from the adjudication experience in the UK and Australia to thefundamentals of the upstream oil and gas contracts in Malaysia. My thanks go to Ow Sau Pinfor organising this. We aim to make this a regular feature for the continuous development andenrichment of our members.

Council has met with the representatives of the various bodies which make up the arbitrationand/or alternative dispute resolution community and I daresay that several collaborative effortsare in the pipeline.

There are many upcoming events lined up for this year. In May 2014 itself, we will be havingthe MIArb Fast-Track Fellowship Course for Members who wish to upgrade themselves tobecome Fellows of MIArb and the inaugural MIArb-The Society of Construction Law, Malaysia(SCL) Annual Law Review. Do come and join us!

Last but not least, I also wish to take this opportunity to encourage members to play an activerole in the activities of MIArb and to assist in putting MIArb on the map of the arbitration circle,both domestically and internationally. I believe that with contributions from all our members, wecan take MIArb to the next level.

Lam Ko LuenPresident

Note From President

Editor: Victoria Loi Tien Fen Senior AssociateShook Lin & Bok, Kuala Lumpur

Contributors: Nereen Kaur Veriah Ooi Huey MiinKalashini Sandrasegaran

May 2013 – September 2013 Joint Short Courses onConstruction Law and AlternativeDispute Resolution (ADR)

17.5.2013 & 18.5.2013Construction Law

29.6.2013Arbitration

23.9.2013Adjudication

May 2013 – September 2013 Kuala Lumpur Regional Centre forArbitration (KLRCA) Talk Series

29.5.2013Privacy and Confidentiality inArbitration

2.8.2013An Arbitrator’s Excess of Jurisdictionand Powers

28.8.2013The Arbitration Clause:Common Pitfalls

20.9.2013Challenges to Awards – TheMalaysian Perspective

21.6.2013 – 22.6.20137th Regional Arbitral InstitutesForum (RAIF) Conference

15.7.2013Courtesy Visit to Pertubuhan AkitekMalaysia (PAM)

19.8.2013Evening Talk: Adjudication – theExperience from UK and Australia

16.12.2013Courtesy Visit to the Kuala LumpurRegional Centre for Arbitration(KLRCA)

18.1.2014 & 19.1.2014 The Membership Upgrade Course

22.1.2014Visit by the Japan Association ofArbitrators

1.3.2014Council Members of The MalaysianInstitute of Arbitrators and TheChartered Institute of Arbitrators(Malaysia Branch) Meet Up

3.3.2014Evening Talk: Fundamentals of theUpstream Oil and Gas Contracts

11.3.2014Dialogue with The Society ofConstruction Law, Malaysia (SCL)

12.3.2014Evening Talk: Too Many Parties andHow Many Bites? Misjoinders andWhen A Challenge Should BeMounted

28.4.2014MIArb – KLRCAEthics in International Arbitration– Myth or the New Reality?

Council (2013 – 2014)

President Lam Ko Luen

Deputy President Lai Sze Ching

Vice President Kevin Prakash

Honourary Secretary Hor Shirley

Honourary Treasurer Sanjay Mohanasundram

(resigned w.e.f. 2.4.2014)

Immediate Past President Chang Wei Mun

Council Members Ow Sau Pin

A. Mahadevan Ooi Huey Miin

Jonathan Yoon Weng Foong Victoria Loi Tien Fen

Joshua Chong Wan Ken

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Disclaimer Views expressed are not necessarilythose of the Malaysian Institute ofArbitrators (MIArb). MIArb takes noresponsibility of any action taken basedon the information published in thisnewsletter and neither shall MIArb beliable for any product or serviceadvertised in the same. No part of thispublication may be reproduced withoutthe permission of the publisher.

ContributionsArticles and other materials of interest forpublication in future issues arewelcomed. MIArb reserves the right toedit or decline any materials submitted.

This newsletter is also available on ourwebsite: www.miarb.com.

Past Events2013-2014

4

The Case of Mohamed Azahari Matiasin

Will the Right to ChooseOne’s Representation inSabah Be Limited?

by Nereen Kaur Veriah LL.B (Hons) (London), C.L.P.Senior AssociateShook Lin & Bok, Kuala Lumpur nereenkaur@shooklin.com.my

Prologue

An area of law which recently received judicialattention deals with the issue of whether anadvocate and solicitor from West Malaysiahas the right to represent parties in an

arbitration held in Sabah. This article looks at thatrecent judicial decision in the case of MohamedAzahari Matiasin.

The Arbitration The brief facts in this case are as follows. A disputearising from a joint venture agreement betweenvarious individuals as the claimants and a companyas the respondent was referred to arbitration inSabah. The respondent appointed a SabahAdvocate as counsel and an Advocate and Solicitorcalled to the (West) Malaysian Bar as co-counsel.The claimants raised an objection to thecontinuance of the co-counsel on the grounds thatthe co-counsel was not a Sabah Advocate.

How did the High Courtdecide? In view of the objection taken by the claimants, therespondent (hereinafter referred to as “theapplicant”) applied to the High Court [(2011) 2 CLJ630] for, inter alia, a declaration that foreignadvocates who are not advocates within the SabahAdvocates Ordinance 1953 (Sabah Cap. 2) ("theOrdinance”) are not prohibited from representingparties to an arbitration proceeding in Sabah. Theissue before the High Court was whether an

advocate and solicitor from West Malaysia couldappear and represent a party in an arbitrationproceeding in Sabah.

One of the three arguments put forth by theapplicant was this. Section 2 of the Ordinancedid not confer unto Sabah Advocates exclusivityin representing parties in arbitration proceedingsin Sabah. Section 2 of the Ordinance defines,"to practice in Sabah" as to perform:

"a) any of the functions which inEngland may be performed by amember of the Bar as such; or (b) anyof the functions which in England maybe performed by a Solicitor of theSupreme Court of Judicature as such"

5

Based on the above provision, the applicantargued that the legislature had only intended toconfine the phrase "to practice in Sabah" to thesame footing as the barristers and solicitors inEngland.

Following from this, it was argued that sincemembers of the English Bar did not enjoyexclusivity to represent parties in arbitrationproceedings, it ought to follow that SabahAdvocates did not enjoy exclusivity to representparties in arbitration proceedings in Sabah.

The applicant also argued that the position takenin the case of Zublin Muhibah Joint Venture vGovernment of Malaysia (1990) 3 MLJ 125should apply. There, the High Court of Malayaheld that a foreign lawyer, seeking to appear andrepresent a party to an arbitration in WestMalaysia, would not offend Section 37 of theLegal Profession Act 1976 as this Act did notapply to arbitration proceedings even if theforeign attorney might have taken action or

Based on thedecision of the

Court of Appeal, itwould appear that

advocates andsolicitors from West

Malaysia can nowrepresent parties to

arbitrationproceedings in

Sabah...it will beinteresting to see

how the apex Courtdecides this issue.

6

performed the duties which would normally becarried out by an advocate and solicitor in WestMalaysia. The High Court there took the view thatsince an arbitral forum is a private tribunal, theactions of the foreign lawyer did not offend Section37 of the Legal Profession Act 1976.

In reply, the Sabah Law Association cited the caseof Datuk Haji Mohammed Tufail Bin Mahmod & Orsv Dato Ting Check Sii (2009) 4 MLJ 165, wherethe Federal Court there held that an advocate andsolicitor from West Malaysia could not appear ascounsel for an appeal heard in Putrajaya for amatter originating from the High Court of Sabahand Sarawak. The Federal Court in reaching itsdecision considered the language set out inSection 8 of the Sarawak Advocates Ordinance,namely:

"Subject to subsection (2) and to section9, advocates shall have the exclusive rightto practice in Sarawak and to appeal andplead in the Federal Court in Sarawak andthe High Court, and in all Courts inSarawak subordinate thereto in whichadvocates may appear, and, as betweenthemselves, shall have the same rightsand privileges without differentiation."

as well as Section 87 (9) of the Malaysia Act andArticle 161B of the Federal Constitution. In sodoing, the Federal Court in the case of Tufail heldthat advocates and solicitors of West Malaysia arerestricted from appearing in cases arising from EastMalaysia even if those cases are heard in WestMalaysia.

In the case of Mohamed Azahari, the High CourtJudge interpreted the statute (Section 8) and heldthat the phrase "exclusive right to practice inSabah" means the exclusive rights to legalpractice both "in and outside" courts. The HighCourt’s interpretation meant that the Ordinanceprecluded a lawyer who is not called to the SabahBar from representing parties in arbitrationproceedings in Sabah.

The High Court also held that even though anarbitration proceeding is a private hearing, it did nottransform the legal work carried out by an advocateseeking to be admitted into non legal work. Thelearned Judge further took into account the policiesin place when Sabah and Sarawak joined

Malaysia. Amongst those policies were theprotection of the trade of the East Malaysians, inparticular advocates and solicitors. With this policyin mind, the High Court held that a person who isnot a member of the Sabah Bar but is seeking tocarry out work similar to that of a Sabah Advocate,must apply for ad hoc admission. The applicantappealed against part of the High Court’s decision.

The Court of Appealdecided otherwise The Court of Appeal [(2013) 7 CLJ 277], afterhearing the arguments of the parties, allowed theapplicant’s appeal and held that the language inthe Ordinance did not confer exclusivity toadvocates and solicitors from Sabah in respect ofarbitration proceedings in Sabah. Instead the Courtof Appeal held that the words "to practice inSabah" is tied on to the right of practice ofbarristers and solicitors in England. By that token,since barristers and solicitors in England do nothave exclusivity over representation of parties inarbitration proceedings, it follows that SabahAdvocates similarly did not enjoy such exclusivity.

Based on the decision of the Court of Appeal, itwould appear that advocates and solicitors fromWest Malaysia can now represent parties toarbitration proceedings in Sabah.

Leave to Appeal to theFederal Court At the time this article was written, the Sabah LawAssociation had been granted leave to appeal tothe Federal Court on the following question:-

" Whether Section 8(1) of the AdvocatesOrdinance 1953 (Sabah Cap. 2) readtogether with Section 2(1)(a) and (b)thereof confer exclusivity of right topractise by representing and appearing forany party in arbitration proceedings in theState of Sabah to Sabah Advocates?"

Epilogue It is this author's view that it will be interesting tosee how the apex Court decides this issue i.e. toeither streamline the position across Malaysia inrespect of arbitration proceedings (by adopting theposition taken in Zublin) or to have the position inWest Malaysia and Sabah remain separate.

7

Alternative Dispute Resolution

What’s the RealAlternative?

by Ooi Huey Miin Advocate & Solicitor, MalayaFMIArb, FCIArbPartner, HM Ooi Associates, Kuala Lumpur hueymiin@hmoa.com.my

Conflict is inevitable

No man is an island. The smaller community is asub-subset of the larger but all exist by virtue oftheir plurality. In this plurality, there exists aplethora of relationships, personal, economic or

regulatory which, within themselves, are inextricablyintertwined.

With relationships come conflicts. While it may beeasy to assume that nobody wants to be involved inconflict, the truth is somewhat different. A largesegment of society thrives on conflict – disputeslawyers rely on conflict to sustain their very existencebut they exist simply because demand warrantssupply.

If we accept that society is built on relationships andno two individuals are alike, we must accept thatconflict is inevitable. Conflict may be positive – arguingout a matter and weighing up different points of viewoften makes for better and more informed decisionmaking. However, conflicts that fester withoutresolution become counterproductive.

The need for disputeresolutionTherefore conflicts or disputes need to be resolved.This is as applicable to neighbours in an apartmentcomplex that may have differences over theacceptable decibel scale of noise emission as it is tosovereign states that may dispute each other’sterritorial boundaries.

8

While the use of force, may seem anattractive method in resolving disputes(primarily for the party with access to thegreater means of force), it is not withoutcontroversy for obvious reasons. Society hasevolved; no doubt with the aid of developedlegal systems that provide penal or otherdisincentives from the times where the moreprimal tendencies of our forefathers to dealwith disputes by violent means prevailed.

Fundamentally however, the problem withresorting to force as a method of disputeresolution, to paraphrase the words of Dr.Martin Luther King Jr., is that violence begetsviolence and it therefore never truly resolvesthe conflict.

The alternativesWhen disputing parties are unable to resolvetheir differences, the logical thing for them todo is to turn to “neutral” third parties to assistin the resolution of these difference orotherwise determine them. In relative moderntimes, the accepted path towards achievingfinal and binding determination of a civil orcommercial dispute has been to seek adetermination of the dispute by the courts,which would give or pronounce orders ordecrees that carry the effect of enforcing orpermitting further steps to be taken throughthe court process to enforce thosedeterminations so as to “resolve” the same.

Problems associated with going to the courts,including the length of time the courtsgenerally take to hear a matter, the rigidity orintricacy that comes with any court systemthat may impede the presentation of adisputing party’s case, delays caused byinterlocutory proceedings and the countlesslevels of appeals and the lack of familiarity byjudges regarding the areas that disputesconcern, have led parties to seek alternativemethods of dispute resolution.

That is not to say that these alternativemethods of dispute resolution are newinnovations. They are simply refinements toconflict resolution mechanisms that havebeen utilized for as long as, if not longer than,the courts themselves have existed.

While arbitration is most commonly thought ofas the primary method of alternative disputeresolution (in the sense that the determinationof the dispute is done in a forum other thanthe courts), there are also the processes ofmediation, conciliation, expert determinationand adjudication or combined processes,such as the med-arb procedure (whichcombines mediation and arbitration).

With relationships come conflicts....conflicts that fester without

resolution become counterproductive.

9

Mediation is probably the most frequently usedalternative dispute resolution process, althoughwe may not realize it. Most people have dailyexperience in informally mediating disputesbetween family members, co-workers,neighbours or business partners.

In a formal setting, a mediator is professionallyengaged by the disputing parties to undertakethe task of bringing the parties to voluntarily agreeto resolve their disputes.

A mediator’s function is not to decide the parties’disputes but to facilitate settlement negotiationsbetween disputing parties by assisting them toidentify common ground or focus on their realneeds (commercial or otherwise) and whether asatisfactory compromise may be reached, takingthese factors into account.

A conciliator provides the same service as amediator but his mandate goes a step further inthat he is authorised by the parties to make aproposal to the disputing parties of what a fairsettlement to the dispute may be.

Neither mediators nor conciliators determinedisputes for the parties. Their role is ultimatelyfacilitative. This may be contrasted with otherforms of alternative dispute resolution where thethird party tribunal is empowered by the partiesto decide their disputes such as arbitration,expert determination and adjudication.

Arbitration is a process whereby disputing partiesactually agree to refer their dispute to an arbitraltribunal for final and binding determination. Mostjurisdictions have relatively developed lawsrelating to the conduct of arbitration and thesummary enforcement (as a court judgment) ofarbitral awards.

While arbitration is the alternative disputeresolution process that is most similar tothat of the courts, arbitral awards carry withthem much wider cross jurisdictionalenforcement options by virtue ofinternational treaties such as the New YorkConvention of 1958. They are alsogenerally subject to narrower grounds ofchallenge than decisions of a court of firstinstance. It is for this reason that arbitrationremains the preferred dispute resolutionprocess for cross-border commercialdisputes.

Mediation isprobably the most

frequently usedalternative disputeresolution process,

although we maynot realize it.

10

Where parties to a commercial contract do not agreeon the value of the subject matter of a transaction,there may be fall back provisions in their contract thatpermits or compels the reference that question to beanswered by reference to expert determination,whereby an independent expert is engaged by theparties to decide the disputed value. The weight oreffect of that determination would invariably dependon the parties’ agreement but there is sufficient debatein various jurisdictions as to when an expertdetermination may fall within the boundaries of beingan arbitration award and thereby be subject to thebenefits and burdens of the laws relating to arbitrationor vice versa.

There is also adjudication which is commonly referredto as “temporary dispute resolution” as it is acontractual (or sometimes statutory) process thatpermits parties to refer disputes that arise betweenthem in an on-going contract for speedy “temporary”determination by a third party adjudicator to allow thecontract to move forward while preserving rights to theparties to seek a final and binding determination of thesame dispute by arbitration or the court process.

In Malaysia, the long awaited Construction IndustryPayment and Adjudication Act 2012 (“CIPAA”), whichprescribes a statutory regime for the adjudication of“payment claims” under written “constructioncontracts” finally came into force on 15 April 2014 andit is expected to have a material impact on the way inwhich payment disputes relating to constructionprojects are resolved.

One common thread between all forms of alternativedispute resolution is that their invocation inevitablyarises from an agreement for their use to settle or theirdisputes as an alternative (or sometimes precursor) togoing to the courts. Such an agreement may beexpressed or implied (for example by statute) and maybe pre-determined by parties before their disputesarise (by the incorporation of alternative disputeresolution provisions in the underlying contractbetween the parties) or after.

Alternative dispute resolution procedures are generallywelcomed by courts bogged down by backlog, whichlargely strive to uphold or give effect to validagreements for their use.

Back to Court?That said, ultimately, if one party refuses or otherwisehas valid grounds not to honour the result of theparties’ chosen method of alternative disputeresolution, the parties will inevitably find themselvesback in the courts. An agreement reached pursuantto a mediation or conciliation, an arbitration award orpotentially, an adjudicator or expert’sdecision/determination that is not honoured will haveto be enforced through the court process.

It may also be said that more progressive judiciarieshave taken steps to remove the traditionally perceivedimpediments to invoking the court process as a firststop for the determination of disputes. Objectivelyconsidered, it may now, particularly in the context of adomestic commercial dispute, often appear to be thecase in many jurisdictions that going to court may wellbe more efficient or cost effective than going toarbitration.

What’s the real alternative? Having outlined various method of dispute resolutioni.e. the court process and its alternatives, it may besaid that there is no magic formula or prescription as

...there is no magicformula...Every

dispute resolutionprocess has a valid

utility which mayvary depending on

needs orrequirements of the

parties using it.

11

to what form of dispute resolution will workbest for parties that are in dispute. It would,for example, be naïve to think that CIPAA willalleviate the need for contractors to arbitrateor go to court or that the costs of disputeresolution will necessarily be reducedbecause of it.

What then are our real alternatives? Everydispute resolution process has a valid utilitywhich may vary depending on needs orrequirements of the parties using it. It mustalso be appreciated that dispute resolutionprocesses (and their subsets or variants),regardless of their labels, have beendeveloped and continue to evolve out of anunderlying objective to see disputes resolved.

The best that can be done is to educate.Education of potential users of the variousmethods of dispute resolution processesavailable so that they may make informeddecisions in choosing the manner in whichtheir conflicts are resolved or at leastdetermined. Education of the representatives,experts and tribunals that will be involved inthe dispute resolution processes that theparties choose so that they may effectivelyplay their roles and functions in giving effectto that choice.

You may disagree. If you do, we will have adispute and a number of options to choosefrom as to how we wish for that dispute to beresolved…and if we cannot agree on thoseoptions, there are always the courts!

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Section 37 of theArbitration Act 2005— Recent Decisions

The recent decisions by the High Courtand the Court of Appeal in the disputebetween the Government of the LaoPeople’s Democratic Republic and (1)

Thai-Lao Lignite Co. Ltd & (2) Hongsa Lignite Co.Ltd are naturally worth examining primarily duethe following twin grounds; (1) provides guidancein assessing application to set aside an arbitralaward made out of time and; (2) upholds thejurisdiction parameters of an arbitral tribunal.

Background FactsThai-Lao Lignite Co. Ltd (“TLL”) entered into amining contract with the Government of theLao People’s Democratic Republic (“GOL”) in1992 through which the former was given theright to survey, locate and mine lignite in theregion of Hongsa, Laos. The governing law ofthe contract was the law of Laos and theparties agreed that any dispute shall bereferred to the Laotian Board of EconomicConciliation or Laotian Court or InternationalEconomic Dispute Settlement Organisation.

Hongsa Lignite Co. Ltd (“HLL”) was formed byTLL and licensed by GOL to perform thenecessary works. The aforesaid miningcontract was then amended by a secondmining contract in which the concession areawas extended (“collectively referred to as the“Mining Contracts”).

TLL and GOL subsequently entered into aProject Development Agreement (“PDA”)through which GOL granted TLL a concession

by Kalashini SandrasegaranLL.B (Hons) (London), C.L.P.AssociateMohanadass Partnership, Kuala Lumpurkalash@mohanadass.com

13

to build a power plant to produce electricity. HLL was not asignatory to the PDA. The law governing the PDA was NewYork law while the seat of arbitration was Kuala Lumpur.

Disputes arose between parties when GOL terminated boththe Mining Contracts and the PDA on the premise of non-performance. Despite only the termination of the PDA waschallenged by both TLL and HLL, and not that of the MiningContracts,the Arbitral Tribunal found in favour of TLL and HLLand further allowed the recovery of claim under the MiningContracts by qualifying it as being “due under total investmentcost” under the PDA.

GOL strenuously challenged the award; by disputing bothenforcement attempts in numerous jurisdictions and byseeking to set aside the arbitral award here in Malaysia.

(i) Extension of Time The Court of Appeal in Government of the Lao People’sDemocratic Republic (“Appellant”) v. (1) Thai-Lao Lignite Co.Ltd & (2) Hongsa Lignite Co. Ltd (“Respondents”)(Civil AppealNo. W-02 (NCC)-1287-2011) was invited to consider whetheran extension of time to set aside an arbitral award should begranted based on the circumstances of the case and in theexercise of the court’s discretion.

The application to set aside the arbitral award was filed by theAppellant some 9 months after the expiry of the 90 days’timeframe provided by Section 37(4) of the Arbitration Act

Both the Court of Appealand the High Court

acknowledged that thecourts have unfettereddiscretion to grant an

extension of time to setaside the award based

on the wording ofSection 37 (4) itself.

14

2005. The High Court judge had refused theapplication at first instance on the ground that thenine months delay was “an inordinate delay” and“the grounds stated by the Respondent(Appellant) for the delay prima facie do notwarrant the court to condone the delay”.

The Appellant sought to set aside the arbitralaward on the premise that the arbitratorsexceeded their jurisdiction pursuant to Section37 (1) (a) (iv) and (v); by exercising jurisdictionover the Mining Contracts which were governedby the law of Laos and wrongly exercisedjurisdiction over the 2nd Respondent whom wasnot a party to the PDA. The application to setaside the award carried a prayer to extend timeto set aside the award. As the prayer to set asidewas disallowed by the High Court judge, theentire application was then dismissed. TheAppellant then appealed to the Court of Appeal.

Both the Court of Appeal and the High Courtacknowledged that the courts have unfettereddiscretion to grant an extension of time to setaside the award based on the wording of section37 (4) itself. The Court of Appeal specificallyrelied on item 8 of the Schedule to the Courts ofJudicature Act and Order 3 Rule 5 (1) and (2) ofthe then Rules of the High Court 1980 (nowOrder 3 Rule 5(1) and (2) of the Rules of Court2012) to support its position that the courts areaccorded with the powers to enlarge the timeprescribed by any written law.

The Court of Appeal however disagreed with theHigh Court’s refusal to enlarge time and went onto identify aspects which should be evaluated inassessing the application for extension of time;being (1) length of the delay, (2) the reason for

the delay, (3) the prospect of success and (4) thedegree of prejudice if the application is granted.

In so doing, the Appellate Court appreciated thatthe Appellant is a foreign sovereign and that it is“implicit in the nature of governmental functioningis procedural delay incidental to the decisionmaking process”. It also acknowledged that onefurther factor which has to be considered is“whether the applicant was acting reasonably inall the circumstances”. In assessing theAppellant’s plight, the Court of Appeal found thatthe Appellant had not remained idle while the

...the Court appears to favour a rather softapproach in exercising their discretion toextend time in applying to set aside anarbitral award in circumstances where asubstantial injustice would be caused.

15

time limit lapsed and was in fact actively fightingmany fronts in other parts of the world byresisting enforcement. The application to setaside was filed as soon as it was made awareof the time limit and thus the Appellant shouldnot be prejudiced in view that the delay was notdeliberate.

It was ultimately decided that so long as thereare “good reasons to extend time as applied forbearing in mind the cogent reasons for thechallenge”, it would be of great prejudice to theAppellant if the setting aside application wasdismissed without considering its merits andalso in view that the Respondents would notbe prejudiced as it could be compensated.The Court of Appeal then remitted the matterto the High Court.

(ii) The Setting AsideApplicationThe High Court proceeded to hear the settingaside application on its merits andsubsequently ordered a fresh arbitration of thematter as the Court found that the Tribunal hadindeed exceeded its jurisdiction conferredupon it by the arbitration agreement, whichthen culminates in this appeal. The appeal tothe Court of Appeal by TLL and HLL (“theAppellants”) (Civil Appeal No. W-02 (NCC) (A)-96-01/2013) was dismissed whereby in itsbrief judgment released to date, the AppellateCourt agreed with the findings of the HighCourt judge that the “By assuming jurisdictionover disputes arising out of the miningagreement in an arbitration under the PDA, theArbitral Tribunal had gone beyond the scope ofthe submission to arbitration. The consequence

is that there is nothing left to be arbitrated andadjudicated at all under the mining agreementas the claimants/defendants under the PDAhad obtained the whole of their reliefs.”

Essentially, the courts found favour with theRespondent’s position that the MiningContracts and the PDA were separatecontracts with different applicable laws and thatthe Act can only be extended to parties to anarbitration agreement. Also, the High Courtmade a specific finding that “the doctrine of'intended beneficiary' is not a recognisedexception to the privity rule under the laws ofMalaysia”.

As the court found that the Tribunal’s findingsto claims under the Mining Contracts and thePDA were inextricably linked and wasimpossible to be separated, it was decided thatthe whole award had to be set aside and wasto be re-arbitrated by a new panel.

ConclusionTo conclude, the Court appears to favour arather soft approach in exercising theirdiscretion to extend time in applying to setaside an arbitral award in circumstances wherea substantial injustice would be caused. Theextent of the Court’s inclination in exercising thisdiscretion remains to be seen, especially incases not involving foreign sovereigns, unlikethis dispute. The Court of Appeal’s position asto the jurisdiction of the arbitral tribunal clearlyendorses the accepted position that anarbitration agreement should strictly beconfined to parties to the agreement and theagreed subject matter of the same as it hadalways been the case.

The Court of Appeal’s position as to thejurisdiction of the arbitral tribunal clearly

endorses the accepted position that anarbitration agreement should be strictly

confined to parties to the agreement andthe agreed subject matter...

Short Courses onConstruction Law andAlternative DisputeResolution (ADR)

17 & 18 May 2013

29 June 2013

Construction Law

Wisma IEM, Petaling Jaya

Jointly organised with The Institution of EngineersMalaysia (IEM), Pertubuhan Akitek Malaysia (PAM) andRoyal Institution of Surveyors Malaysia (RISM)

Arbitration

Ir. Lai Sze Ching conducted this two-day course, which kick-started the series of Short Courses on Construction Law andADR, a collaborative effort by IEM, PAM, RISM and MIArb.The course focused on the fundamentals of construction lawand practice, namely the laws of contract and tort and onaddressing common pitfalls in construction management. Atotal of 35 participants attended this course.

Chang Wei Mun, Lam Ko Luen, Ooi Huey Miin, Sr. OngHock Tek and Sanjay Mohanasundram conducted this one-day course. The course focused on the essentials onarbitration and offered participants an insight into the practiceand procedures of arbitration from a practical and real worldperspective. As part of the course, a mock arbitration wasconducted, with Chang Wei Mun, A. Mahadevan and JoshuaChong as members of the arbitral tribunal, Ooi Huey Miin asCounsel and Lai Sze Ching and Hor Shirley as witnesses. Atotal of 38 participants attended this course.

21 September 2013Adjudication

Ann Quah Ean Lin and Ir. Harbans Singh K. S conducted thisone-day course. The course focused on the backgroundand scope of the Construction Industry Payment andAdjudication Act 2012 (CIPAA) and the legal implications ofCIPAA to the construction industry. A total of 41 participantsattended this course.

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Photographs courtesy of IEM

Kuala Lumpur RegionalCentre for Arbitration(KLRCA) Talk Series

KLRCA extended a warm welcome to MIArb to participate in a seriesof ADR talks at the KLRCA. The talks were very well received.

KLRCA, Jalan Conlay, Kuala LumpurMay 2013 – September 2013

by Chang Wei Mun

29 May 2013

by Ooi Huey Miin

2 August 2013

by Kevin Prakash

28 August 2013

by Lam Ko Luen

20 September 2013

Privacy and Confidentialityin Arbitration

An Arbitrator’s Excess ofJurisdiction and Powers

The Arbitration Clause:Common Pitfalls

Challenges to Awards –The Malaysian Perspective

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Photographs courtesy of KLRCA

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7th Regional ArbitralInstitutes Forum(RAIF) Conference21 & 22 June 2013

Shangri-La Hotel, Cebu, The Philippines

MIArb is a member of theRegional Arbitral Institutes Forum(RAIF), a regional arbitral bodyfounded in 2007. The othermembers of RAIF are the Instituteof Arbitrators & MediatorsAustralia (IAMA), the ArbitrationAssociation of BruneiDarussalam (AABD), the HongKong Institute of Arbitrators(HKIArb), the Singapore Instituteof Arbitrators (SIArb), thePhilippine Institute of Arbitrators(PIArb) and BANI Arbitration

Center (recently replaced withthe Indonesian ArbitratorsInstitute (IArbI)). RAIF wasestablished to, inter alia, fostergreater cooperation amongst thearbitral organisations in the regionand to promote awareness andeducation in arbitration.

The key event of RAIF is itsannual conference, which itsmember organisations take turnsand pride to host. The inauguralRAIF Conference was held in

Singapore in 2007, followed byBrunei in 2008, Hong Kong in2009, Malaysia in 2010 andIndonesia in 2012.

PIArb hosted the 7th RAIFConference in Cebu, ThePhilippines, in 2013 and KevinPrakash and Ooi Huey Miinrepresented MIArb at thisconference. Kevin presented thecountry report, touching upon,inter alia, adjudication and theintroduction of the Construction

Evening Talk

Adjudication –the Experience

from UK andAustralia

19 August 2013

Rashda RanaBarrister, Arbitrator, Mediator, 39Essex Street, London; President ofCIArb, Australia; Vice Chair of SCL,Australia

Rashda spoke on the lessons whichmay be drawn from the experiencesof adjudication in the United Kingdomand Australia, including whether thesystem has worked as envisaged,what has been the effects ofadjudication on other forms ofdispute resolution or litigation and thedesirability or otherwise of the roughand ready nature of the method ofadjudication on perceptions of justiceby industry players.

Industry Payment and AdjudicationAct 2012 (CIPAA) in Malaysia.Huey Miin, on the hand, spokeabout the Latest Developmentsand Challenges in ArbitratingEnergy Disputes.

The RAIF Conference has come fullcircle. SIArb will be hosting the 8thRAIF Conference in Singapore,slated to happen on 1.8.2014.

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Photographs courtesy of PIArb

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The MembershipUpgrade Course18 & 19 January 2014

The Membership Upgrade Course isan intensive two-day course with anassessment programme designedand organised by MIArb to impart keyand relevant knowledge of thepractice and procedures of arbitrationto the Associates of MIArb, who uponsuccessful completion of the courseand assessment may apply to beupgraded to become Members ofMIArb. The course and/or assessmentwere conducted by Lam Ko Luen, LaiSze Ching, Rajendra Navaratnam,Rueben Mathiavaranam, Ooi HueyMiin, Ow Sau Pin, Elaine Yap, JamesMonteiro, Jonathan Yoon, A.Mahadevan and Victoria Loi. A total of28 participants attended the Course.

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Evening Talk

Fundamentals of theUpstream Oil and GasContracts3 March 2014

Thavakumar KandiahpillaiVice President, Legal Affairs,President & Group CEO's Office,Sapura Kencana PetroleumBerhad; President, MalaysianCorporate Counsel Association

Thavakumar spoke on thedynamics of the oil and gasindustry and provided anintroductory insight into thecontractual challenges commonlyencountered in upstream oil andgas contracts in balancing thecompeting interests of the partiesinvolved.

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Evening Talk

Too Many Parties andHow Many Bites?Misjoinders and When A Challenge Should Be Mounted12 March 2014

Chan Leng Sun SCHead, Dispute Resolution, Baker& McKenzie. Wong & Leow,Singapore; President, SIArb

Leng Sun spoke on theSingapore Court of Appealdecision in PT First Media vAstro [2013] SGCA 57 whichgrappled with the question ofjoinder and the consequencesof a misjoinder in decidingwhether an arbitration awardcould ultimately be enforced inSingapore.

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Meets and Visits

11 March 2014Secretariat, The Malaysian Institute of Arbitrators

Dialogue with The Society ofConstruction Law, Malaysia (SCL)

From left to right: Richard Moss, Ivan Loo, A. Mahadevan,Joshua Chong, Thayananthan Baskaran, Lam Ko Luen, TanSwee Im, Lai Sze Ching and Victoria Loi

22 January 2014Secretariat, The Malaysian Institute of Arbitrators

Visit by the JapanAssociation of Arbitrators

From left to right: Yip Xiao Heng, Hiroki Aoki, Yoshimi Ohara,Lam Ko Luen, Hor Shirley, Joshua Chong.

16 December 2013Jalan Conlay, Kuala Lumpur

Courtesy Visit to the Kuala LumpurRegional Centre for Arbitration(KLRCA)

From left to right: (Back row) Jonathan Yoon, A.Mahadevan, Faris Shehabi, Lai Sze Ching, LauraJimenez Jaimez (Front row) Kevin Prakash, Lam KoLuen, Professor Datuk Sundra Rajoo, Lai Jen Li,Suganthy David

15 July 2013Wisma Bandar, Kuala Lumpur

Courtesy Visit to PertubuhanAkitek Malaysia (PAM)

From left to right: A. Mahadevan, Ar. Thirilogachandran,Lai Sze Ching, Ar. Chan Seong Aun, Lam Ko Luen, Ar.Hj. Abd Halim Suhor, Kevin Prakash, Victoria Loi

1 March 2014Grand Imperial Restaurant, Sri Hartamas, Kuala Lumpur

Council Members of The MalaysianInstitute of Arbitrators and TheChartered Institute of Arbitrators(Malaysia Branch) Meet Up

From left to right: (Standing) Joshua Chong, Ho June Khai,Jonathan Yoon, Leon Weng Seng, R. Jayasingam, A.Mahadevan, Victoria Loi, Kuhendran Thanapalasingam (Sitting)Lai Sze Ching, David Cheah, Lam Ko Luen, Kevin Prakash

UpcomingEvents17.5.2014 and 18.5.2014MIArb Fast-Track Fellowship Course

This Course is targeted at Members of MIArb who wish to upgrade themselves to beFellows of MIArb.

24.5.2014MIArb – The Society of Construction Law, Malaysia (SCL) Annual Law Review

MIArb and SCL are collaborating and jointly presenting a seminar focusing on thedevelopments in arbitration and construction laws in 2013.

4.6.2014MIArb Evening Talk: Jurisdictional Challenges in International Arbitration: PullingOneself Up by One’s Bootstraps

Speaker: Ng Jern-Fei, Barrister, Essex Court Chambers

Jern-Fei will speak on jurisdictional challenges in international commercial arbitrationwith reference to several recent Court judgments

11.6.2014MIArb Evening Talk: Competition Law in Malaysia

Speaker: Sudharsanan Thillainathan, Partner, Shook Lin & Bok, Kuala Lumpur

Sudhar will speak on key provisions of the Malaysian Competition Act 2010 whichcame into effect in 2012, the implications it has on businesses and recentdevelopments.

1.8.20148th Regional Arbitral Institutes Forum (RAIF) Conference

The 8th RAIF Conference is set to take place in Singapore and will be organised bythe Singapore Institute of Arbitrators (SIArb).

23.8.2014MIArb Adjudication Workshop

Speakers: Rashda Rana, Barrister, Arbitrator, Mediator, 39 Essex Street,Oon Chee Kheng, Partner, Messrs. C. K. Oon & Co.

This workshop aims to give participants an insight into the practical aspects ofconstruction adjudication and a step-by-step guide on its process.

For more information about the events on this page andother upcoming events organised or participated by MIArb,please visit our website: www.miarb.com

New Members/Upgrade forSession May 2013 to April 2014

Fellow M/No. Date Approved1.Mr. Rueben Mathiavaranam F/107 19-09-20132.Ms. Samrith Kaur F/109 16-01-2014

Upgraded from Member to Fellow M/No. Date Approved1.Mr. Gary Hng Aik Meng F/108 23-12-2013

Member M/No. Date Approved1.Mr. Tan Kok Seng M/381 15-08-20132.Ms. Heng See Imm M/382 15-08-20133.Ms. Cilia Chong M/383 19-09-20134.Ms. Uma Rani Sockalingam M/385 21-11-20135.Ms. Rajini Saudranrajan M/386 23-12-20136.Mr. Noor Saidi bin Johan Noor M/387 16-01-20147.Mr. Ahmad Ridha bin Abd Razak M/388 26-02-20148.Mr. Loh Chang Woo M/389 26-02-2014

Upgraded from Associate to Member M/No. Date Approved1.Mr. Chong Heap Yih M/390 02-04-20142.Mr. Tony Tan Kai Loon M/391 02-04-20143.Mr. Choo Heng Huat M/392 02-04-20144.Mr. Pang Bak Kiang M/393 02-04-20145.Mr. Chee Tsei Hoong M/394 02-04-20146.Mr. Yeoh Seong Mok M/395 02-04-20147.Mr. Chandragesan a/l Kadaply M/396 02-04-20148.Mr. Tan Meng Yue M/397 02-04-2014

Upgraded from Affiliate to Member M/No. Date Approved1.Mr. Devandra Balasingam M/384 21-11-2013

Associate M/No. Date Approved1.Miss Lee Zhi Mei A/172 16-05-20132.Mr. Yap Chua Soon A/173 16-05-20133.Mr. Tan Chi Sian A/174 16-05-20134.Miss Chu Chai Yin A/175 16-05-20135.Mr. Wong Sean Yee A/176 15-08-2013

Associate M/No. Date Approved6.Mr. Nik Hasbi Fathi A/177 15-08-20137.Dr. Mohamed Ishak Abdul Hamid A/178 19-09-20138.Mr. Vinodh a/l Mariappa A/179 19-09-20139.Mr. Chong Heap Yih A/180 17-10-201310.Mr. Chandragesan a/l Kadaply A/181 17-10-201311.Mr. Chin Yoon Sin A/182 23-12-201312.Mr. Choo Heng Huat A/183 23-12-201313.Mr. Wan Ahmad Kamal bin Wan Ahmad A/184 23-12-201314.Mr. Goh Wooi Beng A/185 23-12-201315.Mr. Tony Tan Kai Loon A/186 23-12-201316.Mr. Sivanesan a/l Nadarajah A/187 23-12-201317.Mr. Pang Bak Kiang A/188 16-01-201418.Mr. Arief Sempurno A/189 16-01-201419.Mr. Mak Chee Seng A/190 16-01-201420.Mr. Chee Tsei Hoong A/191 16-01-201421.Mr. Khoo Kwan Yee A/192 16-01-201422.Mr. Ngoh Wei Ching A/193 16-01-201423.Ms. Marlina Amir Hamzah A/194 26-02-201424.Ms. Nazliyah binti Mansor A/195 26-02-201425.Ms. Fakihah Azahari A/196 26-02-201426.Ms. Siti Razasah bt Abd. Razak A/197 26-02-201427.Ms. Nazira bt Abdul Rahim A/198 26-02-201428.Ms. Yusmawati bt Ab. Llah A/199 26-02-201429.Mr. Eddy Azhar bin Othman A/200 26-02-2014

Affiliate M/No. Date Approved1.Mr. Tan Yew Lun AF/188 15-08-20132.Miss Trisha Anita Menon AF/189 26-02-2014

Resignation M/No. Date Approved1.Mr. Tan Cheng Siong M/165 23-12-20132.Mr. Koh Leong Chye A/152 23-12-20133.Mr. Seumas Tan Nyap Tek M/0142 16-01-20144.Ms. Lim Yiat Fong M/094 16-01-2014

The Malaysian Institute of Arbitrators extends awarm welcome to our new Fellows, Members,Associates and Affiliates.

Principal Services

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