Recent Federal Court decisions have established that an entry of unconditional appearance does not constitute a step in the proceedings within the meaning of Section 6 of the Arbitration Act 1952. It appears that the conflict over the entry of unconditional appearance began in a 1998 case, in which the judicial commissioner based his decision on comparing the difference in wordings of the English and Malaysian acts.
The case of Bina Jati Sdn Bhd v Sum-Projects (Bros) Sdn Bhd defines the areas in which the courts may intervene in arbitration proceedings. The Court of Appeal held that the lower-court judge was "more than justified" in concluding that the arbitrator had correctly declined to deal with certain allegations and found no fault with the judge's finding that the appellant was bound by the arbitrator's ruling.
Although the Arbitration Act 1952 contains no provision for setting aside an award on the basis of error on the face of the award, the remedy is available in common law under the inherent jurisdiction of the court.
In an application before the High Court to set aside an arbitrator's award under Section 24(2) of the Arbitration Act 1952, it was held that damages can be awarded for innocent misrepresentation. The intention of the parties when they entered into joint venture and lease agreements formed the basis of the arbitrator's decision.
A recent symposium on Asian arbitration law highlights the fact that Malaysia has been dragging its feet in reforming this area. However, it is rumoured that a major reform of the Arbitration Act is contemplated, which is likely to be based on the (UNCITRAL) Model Arbitration Law.
Including: International Arbitration; KLRCA Rules; Intervention by the Courts
A recent case loosens the constraints on the format an arbitration in Malaysia may take. The validity of an individual acting in the role of both mediator and arbitrator is discussed. Conducting an informal arbitration is also held to be acceptable.