Malaysia - National Report - World Arbitration Reporter (WAR) - 2nd Edition
Tan Sri Cecil Abraham, Senior Partner with Zul Rafique & Partners, is a Barrister-at-Law of the Middle Temple and graduated with an LL.B. Hons from Queen Mary College, University of London. Thayananthan Baskaran is a Partner with Zul Rafique & Partners and regularly appears as Counsel in arbitrations. He studied law at King’s College, London and was admitted as an Advocate & Solicitor of the High Court of Malaya in 2000.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
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I. INTRODUCTION: ARBITRATION IN MALAYSIA—HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
The island of Penang was founded in 1786. Penang subsequently became part of the Straits Settlements comprising Penang, Malacca and Singapore. In 1874, the British entered into treaty arrangements with the Sultans of the Malay States, and British protection was extended to the whole of Malaya and the British legal system was introduced to Malaya. The Arbitration Ordinance XIII of 1809 of the Straits Settlements was Malaysia’s first piece of arbitration legislation. This Ordinance was then replaced in Penang and Malacca by The Arbitration Ordinance 1890. In 1950, the Arbitration Ordinance 1950 replaced the 1890 Arbitration Ordinance for all the States of the then Federation of Malaya. The 1950 Ordinance was based on the English Arbitration Act of 1889. British North Borneo and Sarawak adopted the English Arbitration Act of 1952 as their respective Ordinance in 1952. In 1963, North Borneo and Sarawak joined the Federation of Malaysia. On 1 November 1972, Malaysia adopted the arbitration laws prevailing in Sabah and Sarawak and it became known as the Arbitration Act 1952 (1952 Act), which is based on the English 1950 Act.
An amendment to the 1952 Act on 1 February 1980 gave special status to arbitrations held under the Convention on the Settlement of Investment Disputes between the States of Nationals and other States 1965 (ICSID) under the United Nations Commission of International Trade Law (UNCITRAL) and the Rules of Arbitration for the Regional Arbitration Centre for Kuala Lumpur (KLRCA) (now known as the Asian International Arbitration Centre (AIAC). There are omissions in the 2005 Act, and the arbitral community, including the Bar Council and Attorney-General’s Chambers, collaborated to ensure that these omissions were enacted by the Arbitration (Amendment) Act 2011 (2011 Act) and came into force on 1 July 2011.
I. INTRODUCTION: ARBITRATION IN MALAYSIA--HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to Arbitration
2. Current law
a) Overview
b) Distinction between national and international arbitration
B. Arbitration Infrastructure and Practice in Malaysia
1. Major arbitration institutions
2. Development of arbitration compared with Litigation
II. CURRENT LAW AND PRACTICE
A. Arbitration Agreement
1. Types and validity of agreement
a) Clauses and submission agreements
b) Minimum essential content
c) Form requirements
d) Incorporation by reference
e) Interpretation
2. Enforcing arbitration agreements
a) Applications to compel or stay arbitration
b) Anti-suit and other injunctions
3. Effects on third parties
4. Termination and breach
B. Doctrine of Separability
C. Jurisdiction
1. Competence-Competence
2. Interaction of national courts and tribunals
D. Arbitrability
1. Subjective arbitrability
a) Natural persons
b) Legal persons
c) State and state entities
2. Objective arbitrability
E. Arbitration Tribunal
1. Status and qualifications of arbitrators
a) Number of arbitrators
b) Legal Status
c) Qualifications and accreditation requirements
2. Appointment of arbitrators
a) Methods of appointment
b) Appointing authorities
c) Effect of the refusal of one party to co-operate
in the constitution of the arbitral tribunal
d) Resignation and its consequences
3. Challenge and removal
a) Grounds for challenge
b) Replacement of arbitrators
F. Conducting the Arbitration
1. Law governing procedure
a) Notion and role of seat of arbitration
b) Methods for selection of seat absent party choice
c) Distinction of matters of substance and matters of procedure
2. Conduct of arbitration
a) Basic procedural principles or mandatory rules to be applied by the arbitral tribunal
b) Party autonomy and arbitrators’ power to determine procedure
c) Tribunal’s power to issue procedural orders
d) Oral hearing or proceeding on basis of written documents
e) Submissions and notifications
f) Legal representation
3. Taking of evidence
a) Admissibility
b) Burden of proof
c) Standards of proof
d) Documentary evidence and privilege
e) Production of documents
f) Witnesses
g) Experts
4. Interim measures of protection
a) Jurisdiction for granting interim measures
b) Types of measures
c) Security for costs
5. Interaction between national courts and arbitration tribunals
6. Multi-party situations
7. Effect of the insolvency of a party
G. Arbitration Award
1. Overview
2. Form requirements
3. Correction, supplementation, and amendment
H. Challenge and Other Actions against the Award
1. Appeal on the merits (awards made in Malaysia)
III. RECOGNITION AND ENFORCEMENT OF AWARDS
IV. APPENDICES AND RELEVANT INSTRUMENTS
A. National Legislation
B. Major Arbitration Institutions
C. Cases
D. Bibliography