Malaysia, Shearn Delamore & Co updates

Arbitration & ADR

Contributed by Shearn Delamore & Co
It's confirmed! CIPAA applies prospectively to construction contracts
  • Malaysia
  • 12 December 2019

After much anticipation, the Federal Court has finally confirmed that the Construction Industry Payment and Adjudication Act 2012 applies only to construction contracts entered into after the act took effect on 15 April 2014. As such, any adjudication proceedings based on a claim arising from a construction contract which was entered into before that date, including adjudication decisions, are null and void.

High court rules that non-parties to arbitration are not bound by confidentiality
  • Malaysia
  • 17 October 2019

A high court recently ruled that the prohibition against third parties publishing, disclosing or communicating information relating to arbitration proceedings does not extend to non-parties to an arbitration. This decision will affect the extent to which the confidential documents used in arbitral proceedings remain confidential.

Federal Court rules on test applicable to applications to restrain arbitration proceedings made by non-parties
  • Malaysia
  • 08 August 2019

The Federal Court recently overturned a Court of Appeal decision on the test which applies to applications to restrain arbitration proceedings made by non-parties to the proceedings. The Federal Court concluded its judgment by affirming the findings of the High Court in this case, including that the balance of justice was in favour of the injunction order and that there were serious issues to be tried.

Court of Appeal determines that negative declaratory arbitration awards are enforceable
  • Malaysia
  • 23 May 2019

A recent Court of Appeal case addressed whether a negative declaratory arbitration award is enforceable. The decision emphasises the narrow grounds that enable the high courts to refuse to recognise or enforce an arbitration award, as long as the requirements of Section 38(2) of the Arbitration Act are complied with. It also establishes a precedent that there is no barrier to the enforcement of a negative declaratory arbitration award.

Court clarifies test applicable to applications to restrain arbitration proceedings by non-parties
  • Malaysia
  • 04 April 2019

In a recent Court of Appeal case, the plaintiff sought an injunction to restrain arbitration proceedings between the second, third and fourth defendants, despite the fact that it was not a party to the proceedings. Among other things, the court had to consider whether Sections 10(1)(a) and 10(3) of the Arbitration Act 2005 apply to non-parties to arbitration proceedings and determine the test for accepting an injunction application to restrain arbitration proceedings by non-parties.

Shipping & Transport

Contributed by Shearn Delamore & Co
Court of Appeal overturns High Court decision on breach of contract of carriage
  • Malaysia
  • 08 January 2020

The Court of Appeal recently overturned a High Court decision regarding the alleged breach of a contract of carriage. The plaintiff claimed that the carrier had failed to deliver the contracted goods when the original bills of lading had been presented and that this amounted to a fundamental breach of the underlying contract. Although the High Court had held that the defendant-carrier had not breached the contract, the Court of Appeal found that the High Court had erred in respect of its findings with respect to liability and quantum.

Wrongful vessel arrest in collision claim
  • Malaysia
  • 31 July 2019

In a recent case, a plaintiff claimed that the defendant's vessel had collided into its vessel. To stop the plaintiff from arresting the vessel, the defendant obtained a letter of undertaking from the London Protection and Indemnity Club. However, notwithstanding the issue of the first letter of undertaking, the plaintiff arrested the vessel. The defendant subsequently asked the court to, among other things, declare the first letter of undertaking binding on the parties and set aside the warrant of arrest.

Foreign ships repairing undersea cables now exempt from cabotage policy
  • Malaysia
  • 08 May 2019

The government has decided to exempt from its cabotage policy foreign vessels repairing undersea cables at any cable landing station in Malaysian waters. This decision has eliminated restrictions which generated unintended effects and created significant delays and costs in repairing undersea cables. Now, highly specialised, purpose-built vessels can berth in Malaysian waters to repair undersea cables.

Court of Appeal finds carrier breached contract to deliver cargo
  • Malaysia
  • 19 December 2018

A high court recently dismissed a plaintiff's claim against the defendant-carrier for breach of its contract to carry and deliver cargo to the plaintiff on the basis that the plaintiff had failed to prove its claim. However, on appeal, the Court of Appeal upheld the plaintiff's claim and found the defendant liable.

Plaintiff granted indemnity for losses following arrest of vessel on delivery of cargo
  • Malaysia
  • 01 August 2018

A recent case before the High Court of Kuala Lumpur concerned an agreement to deliver cargo from Indonesia to India. The plaintiff, Jiang Xin Shipping Co Ltd, had brought an action against the defendant seeking indemnity for the losses incurred by the plaintiff in connection with an arrest of the plaintiff's vessel on delivery of the cargo.

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