Malaysia - Part N - Arbitration in Asia - 2nd Edition

Thayananthan Baskaran is a partner with Zul Rafique & Partners, Kuala Lumpur, and an associate member of Crown Office Chambers, London. His primary area of practice is construction law. He drafts various building and engineering contracts, advises on disputes arising from such contracts and appears as Counsel to resolve these disputes. Mr. Baskaran sits as an adjudicator, arbitrator and mediator. He is on the expert panel of the Dispute Board Federation Geneva, the list of the Hong Kong International Dispute Arbitration Centre, the panels of the Indonesian National Board of Arbitration, and of the Kuala Lumpur Regional Centre for Arbitration, the database of the London Court of International Arbitration, the panel of The Mediation Centre Dubai and the reserve panel of the Singapore International Arbitration Centre.

Mr. Baskaran is an editor of the Construction Law Digest and Construction Law International, and is the author of several publications on construction law and dispute resolution. He lectures at Brickfields Asia College, Kuala Lumpur, and is on the faculty of the Chartered Institute of Arbitrators, London.

Mr. Baskaran is the President of the Society of Construction Law Malaysia and the Deputy Chairman of the Chartered Institute of Arbitrators, Malaysia Branch.

Educated at St John’s Institution, Kuala Lumpur, Mr. Baskaran read law at King’s College, London, and was called to the Bar by Gray’s Inn. He is a Fellow of the Chartered Institute of Arbitrators, the Hong Kong Institute of Arbitrators, the Malaysian Institute of Arbitrators, the Singapore Institute of Arbitrators, the Dispute Board Federation Geneva and the Malaysian Society of Adjudicators. He is an Incorporate of the Chartered Institute of Building, a Certified Adjudicator of the Kuala Lumpur Regional Centre for Arbitration, and an SMC Associate Mediator of the Singapore Mediation Centre.

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Originally from Arbitration in Asia - 2nd Edition

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[1] INTRODUCTION

[1.1] Brief legislative history of arbitration in Malaysia

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 Malaya’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 (the 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 States and Nationals of Other States 1965 under the United Nations Commission on International Trade Law (UNCITRAL) and the Rules of Arbitration of the Regional Centre for Arbitration Kuala Lumpur (KLRCA) which is now known as the Asian International Arbitration Centre (AIAC)..
Pressure to replace the 1952 Act by the Malaysian Bar Council and the arbitral community with the UNCITRAL Model Law resulted in the enactment of the Arbitration Act 2005 (the 2005 Act). The 2005 Act based largely on the Model Law and the New Zealand Arbitration Act 1996, came into effect on 15 March 2006.The Arbitration Act 2005 has been amended once in 2011 and twice in 2018.

Table of Contents:

Contents

[1] INTRODUCTION

[1.1] Brief legislative history of arbitration in Malaysia

[1.2] Overview of the Malaysian legal system and laws

[2] LEGISLATION

[2.1] Principal legislation

[3] TERRITORIAL SCOPE OF THE 2005 ACT

[4] DOMESTIC LEGISLATION GIVING EFFECT TO INTERNATIONAL CONVENTIONS

[5] ARBITRATION AGREEMENTS

[5.1] Basic requirement of writing

[6] INDEPENDENT EXISTENCE OF AN ARBITRATION CLAUSE

[7] ARBITRATORS AND ARBITRAL TRIBUNALS

[7.1] Introduction

[8] APPOINTMENT OF ARBITRATOR

[9] QUALIFICATIONS OF ARBITRATORS

[10] IMPARTIALITY AND INDEPENDENCE OF THE ARBITRATOR

[11] CHALLENGES

[12] ARBITRAL PROCEDURE

[13] AIAC AND OTHER ARBITRAL INSTITUTIONS

[14] EVIDENCE

[15] PROCEDURE FOR CONDUCT OF ARBITRATION

[16] JURISDICTION

[17] REPRESENTATION BY FOREIGN COUNSEL

[18] AWARDS

[19] FORM OF THE AWARD

[20] CONTENTS OF THE AWARD

[21] AWARD BY CONSENT

[22] CORRECTION AND INTERPRETATION OF AWARD

[23] RECOURSE AGAINST AWARDS MADE IN MALAYSIA

[24] ENFORCEMENT OF AWARDS MADE IN MALAYSIA

[25] ENFORCEMENT OF ARBITRATION AGREEMENTS

[26] CURIAL SUPPORT IN THE CONDUCT OF ARBITRATION

[27] PRACTICAL INFORMATION

[28] TAX

[29] APPENDICES (ON CD)

[29.1]   Arbitration Act 2005

[29.2]    AIAC Arbitration Rules

[29.3]    AIAC i-Arbitration Rules

[29.4]    AIAC Fast Track Arbitration Rules