Malaysian Arbitration Law & KLRCA Arbitration Rules and its developments

31 Pages·2013·0.27 MB·English

by  Rajendra Navaratnam

KLRCA-ACICA Joint Seminar
1st April 2013

Oil & Gas Legal Workshop
MALAYSIAN ARBITRATION LAW, KLRCA
RULES & DEVEL OPMENTS
Rajendra Navaratnam
OVERVIEW

• Statutes and Common Law
• The New York Convention
• Judicial Attitudes
• KLRCA Arbitration Rules (as revised in
2012)
• The Fast Track Arbitration Rules (as
revised in 2012)
• The i-Arbitration Rules
Malaysian Arbitration Law

• Based on Statute and Common Law

• Overlaid with Treaty Obligations
Statute
• Arbitration Act 1952 based on English
Arbitration Act 1950
• Arbitration Act 2005,amended in 2011
was a radical update based on
UNCITRAL Model Law
• Underlying policies expedition of
arbitral proceedings, less court
interference, separate regimes for
domestic and international arbitrations
held in Malaysia
STRUCURE OF ARBITRATION ACT 2005
• Followed New Zealand’s method of
implementing the Model Law
• Parts I, II, IV applicable to all arbitrations
• Part III, applicable by default to domestic
but not to international arbitrations,
provides additional court control by
-reference on preliminary questions of
law(S41)
-questions of law arising out of award(s42)
- further appeals (s43)
STRUCURE OF ARBITRATION ACT 2005
• Part III also provides for
-consolidation with consent,
-extensions of time for commencing
arbitrations and rendering of awards, if
specified by the arbitration agreement
-costs
• Part III can be “opted out” in a domestic
arbitration
• Part III can be “opted in” in an
international arbitration
ARBITRATION(AMENDMENT) ACT 2011
• To address weaknesses found in
implementation of AA 2005
• Limits court intervention to situations expressly
provided for in the Act (Section 8).
• Extends powers to stay proceedings to
admiralty proceedings (stay of vessels)
(Section 10).
• Interim measures may be granted even if the
seat of arbitration is not Malaysia and court to
take arbitral tribunal’s ruling as conclusive.
(Section 11).
ARBITRATION(AMENDMENT) ACT
2011(CONTD)

• Parties may select the substantive law
applicable to the arbitration (Section 30).
• Determination of the validity of an
arbitration agreement may be made in
accordance to the laws of the State where
the award was made (Section 39).
JUDICIAL ATTITUDES
• Have been traditionally supportive of
arbitration
• Low percentage of Awards set aside
• Improved further with AA 2005
• Courts generally take a hands off
approach upholding the policy of the
Act
JUDICIAL ATTITUDES
• Uphold NY Convention obligations:
Lombard Commodities v Alami
Vegetable Oil Products Sdn Bhd [2010]
2 MLJ 23(FC)

• Follow international norms in
scrutinising awards:
The Government of
India v Cairn Energy India Pty Ltd &
Anor[2011] 6AMR 573(FC)