KDN No.: PP8686/07/2013(032886)

The Newsletter of The Malaysian Institute of Arbitrators

ISSUE 1/2017

ContentsNote From President 1

Past Events 2016 3

Article: Challenging DomesticArbitration Awards: The Section37 and Section 42 Problem 4

Article: Staying of CourtProceedings 10

Article: The applicability of IBA Guidelines on Conflicts of Interest in International Arbitration in the context ofEnglish Law 14

Article: Trouble at Sea. Is The End in Sight? 18

Past Events 24

New Members/Upgrade for Session December 2015 toNovember 2016 28

Upcoming Events 29

Dear Members,

Greetings from the Malaysian Institute of Arbitrators. This is our first Newsletterfor 2017.

We completed our first full year at the Bangunan Sulaiman Building and need-less to say, it was a very good move for the Institute. Proximity with the KLRCAhas helped increase communication with the KLRCA and its Director. TheKLRCA has given us excellent support and assistance in all our activities. Weare thankful.

In March 2016, the Institute collaborated again with The Institution of Engi-neers, Malaysia (DRP Subcommittee), Pertubuhan Akitek Malaysia and TheRoyal Institution of Surveyors, Malaysia to organise the Joint Courses on Al-ternative Dispute Resolution for Practitioners. The Course was a two-day sem-inar on arbitration, adjudication, mediation and included a discussion oncommon issues in construction contract management. The Institute con-ducted a course entitled ‘Arbitration: Practical Aspects’.

We organised a talk on ‘Finality to Awards in International Arbitration seatedin Malaysia’ in April 2016. Our past President, Mr Lam Ko Luen and Mr OoiHuey Min led discussions on leading cases where arbitral awards were setaside in 2015 and early 2016.

In May 2016, the Institute held its 3rd Annual Review for 2015, which enjoyedvery good attendance and participation. We had the honour and privilege ofhaving The Honourable Dato’ Mary Lim, Justice of the Court of Appeal deliverthe keynote address. We had a stellar list of speakers who discussed notabledevelopments and trends in adjudication and arbitration in 2015. The highlightof the event was an excellent debate on the Future of Arbitration in Malaysia.

We again assisted Brickfields Asia College’s Diploma in facilitating the Inter-national Arbitration programme between June and August 2016. The coursewas well attended and we have received good feedback on the delivery ofthe course. We expect fresh intakes this year. A big thank you to our Vice Pres-ident, Ms Hor Shirley for managing the Institute’s participation in the course.

The Institute’s Facebook page, launched in August 2015, has been quite thehit. We have certainly achieved our aim in increasing our daily reach and com-munication with our members through our page. The daily page visits haveincreased and usually spikes when a new case note is uploaded. Several casenotes were uploaded on our page which covered important developments in2016. My sincere thanks to Mr Gregory Das for contributing the case notesand for administering our Facebook page.

Finally, the Institute wishes all its members a Happy New Year. May this com-ing year bring all of you much peace, health and prosperity.

Kevin PrakashPresident

Note From President

Editor: Dawn Wong Keng JadeAssociate, Messrs Mah-Kamariyah & Philip Koh

Contributors: Gregory Vinesh Das, Senior Associate, Messrs Shook Lin & BokOon Chee Kheng, Partner, Messrs CK Oon & CoKalashini Sandrasegaran, Associate, Messrs Mohanadass PartnershipTrishelea Sandosam, Senior Associate, Messrs Skrine

Council (2016 – 2017)

President Kevin Prakash

Deputy President Sudharsanan Thillainathan

Vice President Hor Shirley

Honourary Secretary Victoria Loi Tien Fen

Honourary Treasurer Wong Wee Hong

Immediate Past President Lam Ko Luen

Council Members Sharon Chong Tze Ying

Choo Choy LanDawn Wong Keng JadeVerghese Aaron MathewsKaren Ng Gek SuanGregory Vinesh Das

Publisher The Malaysian Institute of Arbitrators

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Disclaimer No part of this publication may be reproducedwithout the permission of the Malaysian Institute ofArbitrators (MIArb). The information in this newsletteris intended for general educational purposes andnot intended to substitute legal or other advice. Theopinions and views expressed are solely thecontributor’s and not of MIArb. MIArb takes noresponsibility for any action taken based on theinformation in this newsletter and neither shall MIArbbe liable for any product or service advertised in thesame.

ContributionsMIArb welcomes articles and other materials ofinterest for publication in future issues of thisnewsletter. By contributing an article or othermaterial of interest to MIArb, the contributor(s)warrant(s) that the same is original and not alreadypublished elsewhere either electronically or in print.MIArb reserves the right to edit or decline anymaterials submitted. Enquiries may be addressed toThe Editor at info@miarb.com.

This newsletter is also available on ourwebsite: www.miarb.com.

January 2016Courtesy Visits to the Offices of MBAM, CIDB, and CIOB

February 2016Membership Upgrade Course

March 2016 Joint Courses on Alternative Dispute Resolution held jointly withIEM, PAM, and RISM

April 2016Afternoon Talk on “Finality to Awards in International Arbitrationseated in Malaysia – Arbitrators Beware!”

May 2016The MIArb 3rd Annual Law Review

November 2016 RAIF Conference, Sydney

Past Events2016

2017 MIArb Council

4

Challenging DomesticArbitration Awards: The Section 37 andSection 42 Problem

by Gregory Vinesh DasLL.B (Hons), Barrister-at-Law (Inner Temple)Senior Associate, Shook Lin & BokCouncil Member of MIArb

Sinc e the advent of the Arbitration Act2005 (“the Act”) in March 2006, therehas been an uncertainty as to theinterplay between Sections 37 and 42

of the Act in respect of a challenge to domesticarbitration awards. Two recent appellate courtdecisions have examined the interactionbetween the two provisions and have sought toprovide the solution. These decisions are thefocus of this article.

By background, Sections 37 and 42 provide theexclusive avenues through which an arbitralaward can be challenged under the Act. Theyare reproduced as end-notes to this article.

By virtue of Section 3 of the Act, Section 37 hasan automatic application to both domestic andinternational arbitrations. In respect of Section42, the provision has an automatic application toa domestic arbitration unless otherwise agreedin writing between the parties. However, such anautomatic application is reversed for aninternational arbitration such that Section 42would not apply unless the parties have agreedin writing as to its application to the arbitration.

It would appear from a reading of Sections 37and 42 that there is ex facie an overlap in thegrounds upon which a challenge against anarbitral award under either of the two provisionscan be made. This has often given rise to anuncertainty as to the circumstances under whicha party should seek either a challenge under

It would appearfrom a reading ofSections 37 and 42that there is ex faciean overlap in thegrounds upon whicha challenge againstan arbitral awardunder either of thetwo provisions canbe made.

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Section 37 or a review pursuant to Section 42,or whether a two-pronged challenge againstthe award under both Sections 37 and 42should be sought.

The recent Court of Appeal decisions ofKerajaan Malaysia v. Perwira BintangHoldings Sdn. Bhd. [2015] 6 MLJ 126(“Perwira Bintang Holdings”) and PetronasPenapisan (Melaka) Sdn. Bhd. v. Ahmani Sdn.Bhd. [2016] 2 MLJ 697 (“PetronasPenapisan”) have examined the interplaybetween the provisions.

Perwira Bintang Holdings involved a dualchallenge against an arbitral award underSections 37 and 42. The central complaintwas that the arbitrator had acted in excess of

his jurisdiction by deciding upon a matter thatwas not part of the issues that were referredto him for determination. In short, it wasargued that the matter was “a new difference”not raised by either of the parties.

The Court of Appeal upheld the High Court’sdecision that set aside the part of the awardthat contained the findings on the issue thatwas beyond the terms of submission to thearbitrator. The Court of Appeal acknowledgedthat such complaints in respect of domesticarbitrations would fall under Section 37(jurisdiction questions) and Section 42 (erroron a substantive question of law) whilerecognising that the power to set aside partof the award or to vary it lies only underSection 42 (see para. 3.10).

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Accordingly, it rejected the Appellant’scontention that the Respondent wasprecluded from relying upon the samegrounds to found both its claims underSections 37 and 42 in the following terms:-

“[62] Counsel for the appellant has, in thecourse of her submission, questionedwhether it was right to duplicate the groundsunder s 37 as grounds under s 42 of the Act.We are not persuaded why similar groundscannot be raised under s 42, if all therequirements under the section can befulfilled. Accordingly, we agree and affirm thefindings and conclusions of the learned judgeof the High Court …”

The other decision that examined theinteraction between Sections 37 and 42 wasthe Petronas Penapisan case.

In Petronas Penapisan the principal groundof challenge against the arbitral award wasthat the arbitral tribunal had decided a matterthat had not been pleaded or ventilated inarguments by either of the parties.

The Respondent alleged that the tribunal haderroneously increased the sum in damagesawarded to the Appellant on account ofinflation. The issue of inflation had not beenpleaded or addressed in the course ofsubmissions during the arbitration.

The Court of Appeal upheld the High Court’sdecision which varied the arbitral award onthe issue of quantum and left undisturbed thetribunal’s decision on liability (which went inthe Appellant’s favour).

The lead judgment of the Court of Appealwas delivered by Prasad Abraham JCA whileHamid Sultan JCA wrote a separate judgmentin concurrence.

First, Prasad Abraham JCA held that eventhough the complaint in question fell withinthe scope of Section 37, the remedy to varythe award was only available under Section42. In this regard, the only relief that was opento a party that institutes a Section 37challenge was the setting aside of the arbitral

In this regard,the only reliefthat was opento a party that

institutes aSection 37

challenge wasthe setting

aside of thearbitral award

save for thenarrow

exception underSection 37(3) of

the Act.

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award save for the narrow exception underSection 37(3) of the Act.

His Lordship proceeded to find that thecomplaint amounted to “an issue of law iewhether an arbitral tribunal can impose apercentage based on inflation rates torepresent the cost of work done without aplea on that point and no invitation forsubmissions on the same being called forfrom parties through their counsel.”

Accordingly, it was held that Section 42 hadbeen correctly invoked in the challenge andthe arbitral award was appropriately variedunder Section 42 by the High Court.

The concurring judgment of Hamid SultanJCA was largely devoted to an analysis of theproper application of Sections 37 and 42.

First, his Lordship divided the complaints thatwould ordinarily fall within Sections 37 and 42in the following compendious terms:-

“[29] An application to set aside an awardunder s 37 largely deals with issues relatingto the award making process and has nothingto do with error of facts and/or law on the faceof record unless the exception applies; suchas public policy. An application under s 42has nothing to do with the award makingprocess but has everything to do with theaward per se and error of law on the face ofrecord which error substantially affects therights of one or more of the parties.”

According to the learned Judge, thecomplaint in issue was beyond the ambit ofSection 42 and instead fell within “s37(1)(a)(iv) and/or (v), etc, as the complaintis that the affected party was unable topresent the case and it may follow that theaward contains decisions on matters beyondthe scope of submission to the arbitration orbreach of natural justice, etc.”

His Lordship then addressed the remediesthat are available in a Section 37 challenge.The remarks were specifically premised onSections 37(1)(a)(iv) and 37(1)(a)(v) as theprovisions that relate to a challenge foundedupon an arbitrator’s enquiry into a matter that

was beyond the scope of the submissionbefore him.

An interesting observation made by HamidSultan JCA was that whenever an award ischallenged on the grounds of a breach ofSections 37(1)(a)(iv) and/or (v), the applicant“must invite the court’s attention to s 37(6)and cannot rely on s 42 as it will be an abuseof process, as he is relying on omission orexcess of jurisdiction which is covered unders 37 and not s 42 of the AA 2005.”

Lastly, in apparent contrast to the position inPerwira Bintang Holdings, his Lordshipremarked that the courts should decline todecide upon a Section 42 application that isbased on the same facts and grounds as aSection 37 challenge. This observation wasstated as follows:-

“[32] In addition, once the applicant hadchosen to rely on s 37 grounds as statedearlier that will mitigate a no-case under s 42.I do not think it will be a proper exercise ofjudicial power to entertain an applicationunder s 42 when the applicant is relying onthe same facts as advocated for a s 37application. In my considered view, a trialcourt ought not to entertain an applicationunder s 42 at all. I will explain this further.

[33] The threshold to satisfy s 42 requirementsis very high and I will say in consequence ofcase laws, it is extremely high. That is to say, ifa party cannot succeed under s 37, on thesame facts and complaint the generaljurisprudence will dictate an application unders 42 will be futile as s 37 relates to arbitralprocess and s 42 relates to arbitral award.”

As a result, the correct approach to takewhere both Sections 37 and 42 are attractedhas now become somewhat complex. Theviewpoint that one must elect to either makean application under Section 37 or 42 wherethe same facts and grounds of challenge arerelied upon is also not without difficulty.

A single subject of complaint against anaward could give rise to differing grounds ofchallenge. For instance, a complaint relatedto the process by which the award was made

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(which would ordinarily provide the basis for anapplication under Section 37) could also resultin the formulation of a question of law that isamenable to review under Section 42. Thisposition was accepted by Mohammad Ariff JCAin Perwira Bintang Holdings, where thecomplaint of the arbitrator determining a matterthat was not referred to him had appropriatelyfounded the challenge under both Sections 37and 42.

Accordingly, the school of thought that preserves a party’s ability to institute dual challengesunder Sections 37 and 42 may be the morepragmatic approach and is to be preferred. Itis then left to the Court to decide the questioncomprehensively. As observed in an earlier partof the judgment of Hamid Sultan JCA inPetronas Penapisan, Sections 37 and 42 insubstance provide different bases forchallenging an arbitral award. This on its ownshould mean that a litigant has the right to file atwo-pronged challenge against an award wherethere is a sufficient basis to do so. If not, itwould be to further curtail an alreadycircumscribed right to impugn an arbitral awardunder the Act.

End Notes1. Section 37 provides for the “setting aside”

of an award in the following terms:-

“37 Application for setting aside.

(1) An award may be set aside by the HighCourt only if-

(a) the party making the applicationprovides proof that-

(i) a party to the arbitration agreement wasunder any incapacity;

(ii) the arbitration agreement is not validunder the law to which the parties havesubjected it, or, failing any indicationthereon, under the laws of Malaysia;

(iii) the party making the application wasnot given proper notice of theappointment of an arbitrator or of the

arbitral proceedings or was otherwiseunable to present that party's case;

(iv) the award deals with a dispute notcontemplated by or not falling within theterms of the submission to arbitration;

(v) subject to subsection (3), the awardcontains decisions on matters beyondthe scope of the submission toarbitration; or

(vi) the composition of the arbitral tribunalor the arbitral procedure was not inaccordance with the agreement of theparties, unless such agreement was inconflict with a provision of this Act fromwhich the parties cannot derogate, or,failing such agreement, was not inaccordance with this Act; or

(b) the High Court finds that—

(i) the subject-matter of the dispute is notcapable of settlement by arbitrationunder the laws of Malaysia; or

(ii) the award is in conflict with the publicpolicy of Malaysia.

(2) Without limiting the generality ofsubparagraph (1)(b)(ii), an award is inconflict with the public policy ofMalaysia where-

(a) the making of the award was inducedor affected by fraud or corruption; or

(b) a breach of the rules of natural justiceoccurred-

(i) during the arbitral proceedings; or

(ii) in connection with the making of theaward.

(3) Where the decision on matters submittedto arbitration can be separated fromthose not so submitted, only that part ofthe award which contains decisions onmatters not submitted to arbitration maybe set aside.

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(4) An application for setting aside may notbe made after the expiry of ninety daysfrom the date on which the partymaking the application had receivedthe award or, if a request has beenmade under section 35, from the dateon which that request had beendisposed of by the arbitral tribunal.

(5) Subsection (4) does not apply to anapplication for setting aside on theground that the award was induced oraffected by fraud or corruption.

(6) On an application under subsection (1)the High Court may, where appropriateand so requested by a party, adjournthe proceedings for such period of timeas it may determine in order to allow thearbitral tribunal an opportunity toresume the arbitral proceedings or totake such other action as in the arbitraltribunal's opinion will eliminate thegrounds for setting aside.

(7) Where an application is made to setaside an award, the High Court mayorder that any money made payable bythe award shall be brought into the HighCourt or otherwise secured pending thedetermination of the application.”

2. Section 42 provides for the challenge of anaward on a question of law as follows:-

“42 Reference on questions of law.

(1) Any party may refer to the High Courtany question of law arising out of anaward.

(1A) The High Court shall dismiss areference made under subsection (1)unless the question of law substantiallyaffects the rights of one or more of theparties.

(2) A reference shall be filed within forty-two days of the publication and receiptof the award, and shall identify thequestion of law to be determined andstate the grounds on which thereference is sought.

(3) The High Court may order the arbitraltribunal to state the reasons for itsaward where the award-

(a) does not contain the arbitral tribunal'sreasons; or

(b) does not set out the arbitral tribunal'sreasons in sufficient detail.

(4) The High Court may, on thedetermination of a reference-

(a) confirm the award;

(b) vary the award;

(c) remit the award in whole or in part,together with the High Court'sdetermination on the question of law tothe arbitral tribunal for reconsideration;or

(d) set aside the award, in whole or in part.

(5) Where the award is varied by the HighCourt, the variation shall have effect aspart of the arbitral tribunal's award.

(6) Where the award is remitted in whole orin part for reconsideration, the arbitraltribunal shall make a fresh award inrespect of the matters remitted withinninety days of the date of the order forremission or such other period as theHigh Court may direct.

(7) Where the High Court makes an orderunder subsection (3), it may make suchfurther order as it thinks fit with respectto any additional costs of the arbitrationresulting from that order.

(8) On a reference under subsection (1)the High Court may-

(a) order the applicant to provide securityfor costs; or

(b) order that any money payable underthe award shall be brought into theHigh Court or otherwise securedpending the determination of thereference.”

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Staying ofCourtProceedings

by Ir. Oon Chee KhengBE (Civil), LL.B (Hons), MBA, CLP,FIEM, PEng, FCIArb, FMIArbAdvocate and Solicitor, High Court of MalayaPartner, CK Oon & Co

By popular reckoning, an arbitrationagreement (or one which takes theform of an arbitration clause in anagreement) is binding on the parties to

that agreement. It is to be construed and is totake effect just like any other agreement; thereare no special rules governing this type ofagreement. The question of its enforceability,however, is different.

In the usual course of events, an innocent party toan agreement (which has matured into anenforceable contract) can claim from the otherparty damages or compensation in the languageof s. 74 of the Contracts Act 1950, when the otherparty has breached the agreement. To this writer’sknowledge, there is however no reported casedealing with a party who sues the other party forcompensation due to the other party’s breach ofan arbitration agreement. Even if the party doessue, it is opined that it will have an uphill taskproving and quantifying his losses. After all, anarbitration agreement confers no substantiverights to the contracting parties. It only mandatesthe parties to their procedural rights of referring

the disputes inter-se to a procedural processcalled arbitration for final resolution.

There is however statutory intervention in thisregard. This intervention takes the form of s.10(1) Arbitration Act 2005 (amended 2011)(“the Act”). This provision provides as follows:

“A court before which proceedings arebrought in respect of a matter which is thesubject matter of an arbitration agreementshall, where the party makes an applicationbefore taking any other steps in theproceedings, stay those proceedings andrefer the parties to arbitration unless it findsthat the agreement is null and void,inoperative or incapable of being performed.”

1 Section 3 Interpretation Acts 1948 and 1967.

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Frequently, the arbitration clause will requireall disputes or differences “arising out of thecontract” between the two parties to bereferred to arbitration. It is therefore the casethat an action in court to enforce anadjudicator’s decision made under theConstruction Industry Payment andAdjudication Act 2012 (“CIPAA”) cannot bestayed under s. 10 of the Act.3

The above has also been reinforced by theobservation of Ramly Ali FCJ in Press MetalSarawak Sdn Bhd v Etiqa Takaful Bhd whereHis Lordship has stated the following:

“The existence of a valid arbitration clause inan agreement between the parties does notautomatically make it operative; the arbitrationclause will only be operative when the givendispute or difference falls within the ambit ofthe arbitration clause.”4

The above, and indeed the very wording of s.10 of the Act, also demands that there mustbe in existence an arbitration agreementbetween the two parties. This is alsounderscored by Mohd Hishamudin JCA whenHis Lordship, in delivering the judgment of theCourt of Appeal in Duta Wajar Sdn Bhd vPasukhas Construction Sdn Bhd & Anorobserved:

“On the facts, we are of the view that there isno arbitration agreement in writing existingbetween the parties. If there is no arbitrationagreement in existence between the parties,then the question of a stay of proceedingspending arbitration under s 10 of the Act doesnot arise.”5

The arbitration agreement of course mustsatisfy the writing requirement.6 The arbitrationagreement must also not be “null and void,inoperative or incapable of being performed”.This phrase, which finds its origin in the NewYork Convention and Model Law, has been

“Court” in the said section must necessarilyrefer to a court of competent jurisdiction.1

For the operation of the provision to besuccessfully invoked, the provision must besubject to detailed scrutiny. An arbitrationclause per se does not operate as a bar tocommencing court proceedings.2 It is only thatthe other party may make an application forthe suit so commenced to be stayed.

It is not however that any “proceeding” whichis brought before a “court” will be stayed; theproceeding must be “in respect of a matterwhich is the subject matter of an arbitrationagreement”. This calls into question theconstruction of the arbitration agreement itself.

2 Any provision that absolutely bars any party from enforcing his substantive rights in a court of law will be void: s. 29 Contracts Act 1950.

3 See also s. 37(1) of CIPAA. See also Foster Wheeler E & C (Malaysia) Sdn Bhd v Arkema Thiochemicals Sdn Bhd [2015] MLJU 1952 on therelationship of arbitration and adjudication under CIPAA, at [28].

4 [2016] 5 MLJ 417, 438 at [69].

5 [2012] 5 MLJ 27, 33 at [21]. See also the decision of Judith Prakash J in Malini v Knight Capital [2015] SGHC 225.

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judicially explained by Aziah Ali J (as HerLadyship then was) in Sunway Damansara SdnBhd v Malaysia National Insurance Bhd andAnor.7

However, to ascertain if there is an arbitrationagreement between the parties can itself beproblematic. Duta Wajar has provided anexample. It is trite that the arbitration agreementneed not be expressly provided, or that it doesnot need to be a visible clause in an agreement.The arbitration agreement can be incorporatedinto the “defined legal relationship” of theparties by reference. Section 9(5) of the Actprovides as follows:

“A reference in an agreement to a documentcontaining an arbitration clause shall constitutean arbitration agreement, provided that theagreement is in writing and the reference issuch as to make that clause part of theagreement.”

In commenting on this s. 9(5) of the Act, theFederal Court has in Ajwa for Food IndustriesCo (MIGOP), Egypt v Pacific Inter-Link Sdn Bhdstated that the section:

“…addresses the situation where the parties,instead of including an arbitration clause in theiragreement, include a reference to a documentcontaining an arbitration agreement or clause.It also confirms that an arbitration agreementmay be formed in that manner provided, firstly,that the agreement in which the reference isfound meets the writing requirement andsecondly, that the reference is such as to makethat clause part of the agreement. Thedocument referred to need not to be signed bythe parties to the contract …”8

However, the reverse may cause surprise. In asituation where the contract between the partiesseemingly contains no arbitration agreement, astay of the proceedings commenced in courtmay still be ordered under s. 10 of the Act. This

occurred in KNM Process Systems Sdn Bhdv Mission Biofuels Sdn Bhd.9

In KNM Process Systems, KNM hadcommenced legal action against MissionBiofuels for non-payment of a certain quantityof materials supplied by KNM which wererequired by Mission Biofuels. The supplies anddeliveries of the materials were invoiced byKNM to Mission Biofuels. The two parties hadearlier entered into an EPCC Contract for theconstruction, completion and commissioningof a biodiesel plant. KNM’s delivery of thematerials were not part of the EPCC Contractbut the materials were for Mission Biofuels’ ownpurpose of further testing the plant. An earliercourt action under the EPCC Contract hadbeen stayed under s. 10 of the Act. Despitethere being no arbitration clause in the invoicesor delivery notes, Mission Biofuels hadsuccessfully argued that the action be stayedunder s. 10 of the Act. Mohamad Ariff Md YusofJ (as His Lordship then was), applied theprinciple in the then House of Lords’ decisionin Fiona Trust & Holding Corporation and Ors vPrivalov and Ors.10

Another requirement is that the defendant inan action commenced in court must make theapplication for staying the court action before“taking any other steps in the proceedings”.Mary Lim J (as Her Ladyship then was)refused the stay application in WinsinEnterprise Sdn Bhd v Oxford Talent (M) SdnBhd11 as the defendant had sought and wasgranted an extension of time to file a defenceand Her Ladyship took the position that theact of seeking an extension of time to file a defence was a step taken in the courtproceedings. The same learned judge hadalso in another High Court decision refused astay application as the defendant in that casehad issued a notice under O 24 r 10 of theRules of Court 2012 which Her Ladyship heldto have constituted a “step in theproceedings.”12

6 Section 9(3) of the Act.

7 [2008] 8 MLJ 873, 880 at [10] – [11].

8 [2013] 5 MLJ 625, 638 at [26]. See also the Court of Appeal’s judgment in TNB Fuel Services Sdn Bhd v China National Coal Group Corp[2013] 4 MLJ 857, 867 at [18] – [19].

9 [2013] 1 CLJ 993.

10 [2007] 4 All ER 951.

11 [2009] MLJU 286.

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It has been repeatedly stressed that the useof the word “shall” deprives the Court of anydiscretion and that if the requirements of s. 10are satisfied, it is mandatory for the Court togrant a stay of the court proceedings.Comparison and contrast are often made tothe repealed s. 6 Arbitration Act 1952 whichcorrespondingly used the non-mandatoryword “may”. It has also been argued beforethat the Court would still retain its inherentjurisdiction to grant or refuse to grant a stay. [1] It is a moot point if this type ofargument can survive the provision in s. 8 of the Act.

One last critical point on s. 10 of the Act maybe raised. When the application made unders. 10 is allowed, the Court should only justgrant the stay prayed for. Section 10 of theAct however has gone further to provide thatthe Court “… shall … refer the parties toarbitration …”. Is it the residual action or theduty of the Court after having granted the stayof the court proceedings to supervise if theparties proceed to arbitration? Does the Courtstill have jurisdiction on the matter afterhaving granted a stay, especially when byapplying for a stay, the defendant iseffectively stating its position that the Courthas no jurisdiction in the dispute or differencewhich has been stayed? Further, is itmandatory for the defendant after havingobtained a stay of the court proceedings toinvoke the arbitration clause and initiatearbitral proceedings by serving a notice ofarbitration? Does the defendant in the courtproceedings then become a claimant in thearbitration proceedings? For that matter,does that mean that after having granted astay, arbitration must proceed? Or doarbitration proceedings automatically set intomotion and no further action by either party isrequired to invoke the arbitration agreement?This writer and his colleague had theunenviable experience of continuallyattending Court for case managements of a

legal suit after having obtained a stay of thesuit just to inform the Senior AssistantRegistrar of the progress of the arbitrationproceedings!

It is thus respectfully submitted that theprovision to “refer the parties to arbitration” ins. 10 can be reviewed when the Act nextcomes up for review or amendment.

12 CLLS Power System Sdn Bhd v Sara Timur Sdn Bhd [2015] 11 MLJ 485. The learned judge also stated that the requirement of not takingsteps in the proceedings before stay could be granted was “to preserve the defendant’s position of non-submission to jurisdiction for thepurpose of resolving the dispute or claim in question.”

Does the Court stillhave jurisdiction onthe matter afterhaving granted astay, especiallywhen by applying fora stay, the defendantis effectively statingits position that theCourt has nojurisdiction in thedispute or differencewhich has beenstayed?

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The applicability of IBAGuidelines on Conflicts ofInterest in InternationalArbitration in the context of English Law

Arecent English High Court decision in W Ltdv M SDN BHD (2016 EWHC 422 Comm)has dismissed a challenge to set aside twofinal awards pursuant to section 68 of the

Arbitration Act 1996 (“AA”) on the grounds ofapparent bias by favouring the common lawapproach set out in Porter v Magill [2002] 2 AC 357over the IBA Guidelines on Conflicts of Interest inInternational Arbitration (“IBA Guidelines”).

Facts of the CaseMr David Haigh QC was appointed as sole arbitratorin relation to a dispute between the partiesconcerning a project in Iraq. The Claimant is acorporation incorporated in the British Virgin Islands.The Defendant is a corporation incorporated inMalaysia.

Mr Haigh QC is with Burnet Duckworth & Palmer LLP(“BDP”). He has been admitted to the Alberta Bar for50 years and was appointed Queen’s Counsel in1984. Although Mr. Haigh QC is a partner in BDP, hehad informed the Court that “[o]ver the past half

dozen years or so, I have sat almost exclusively asan international arbitrator”. He further informed theCourt that he “[w]ould describe myself as essentiallya sole practitioner carrying on my internationalpractice with support systems in the way ofsecretarial and administrative assistance…”provided by BDP. At the time of Mr Haigh QC’sappointment as arbitrator in the present matter, on orabout May 2012, a company (“Q”) was a client ofBDP. M was a subsidiary of another company, P. Afteran announcement in June 2012, P acquired Q laterin the year. Following the acquisition, BDP continuedto provide legal services to Q, the services of whichare to be inferred that BDP has earned substantialremuneration from Q for the work.

Mr Haigh QC made a statement of independence amonth or so before the announcement of theacquisition of Q by P. Mr Haigh QC did conduct aconflict check and made some immaterialdisclosures in the course of the proceedings. Theconflict check system did not however alert him tothe fact that the firm had Q as a client.

by Kalashini SandrasegaranLL.B (Hons) (London), CLPAssociate, Mohanadass Partnership

* Mohanadass Partnership represented M in the Arbitration between M and W.

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The applicability of IBAGuidelines on Conflicts ofInterest in InternationalArbitration in the context of English Law

As the situation fell under the “Non-Waivable”category, the arbitrator cannot take up or

proceed with the appointment. Neither couldthe parties agree to waive the said conflict.

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Mr Haigh QC presided over the proceedingsand made two awards, one dated 16 October2014 and one dated 26 March 2015.

It was only after the final award on costs wasrendered that the potential conflict of interestissue was discovered by W. Mr Haigh QCpromptly responded to W’s queries and statedthat he had no knowledge of either BDP’s workfor Q or that P had acquired Q. He furtherstated he would have disclosed the potentialconflict of interest to the parties had he knownof the same earlier. He apologised for his lackof knowledge.

W applies to set asidethe AwardsW then challenged the two awards pursuant toSection 68(2) AA by asserting that there wasserious irregularity and apparent bias basedon the circumstances of the case that fellwithin paragraph 1.4 of the Non-Waivable RedList of the IBA Guidelines. The IBA Guidelinessuggest that justifiable doubts of thearbitrator's impartiality or independence“necessarily exist” if “the arbitrator or his or herfirm regularly advises the party, or an affiliateof the party, and the arbitrator or his or her firmderives significant financial income therefrom”.As the situation fell under the “Non-Waivable”category, the arbitrator cannot take up orproceed with the appointment. Neither couldthe parties agree to waive the said conflict.

W took the position, inter alia, given the natureof the conflict of interest and the publicitysurrounding the acquisition of Q, the fairminded and informed observer wouldconsider there to be a real possibility of bias,notwithstanding Mr Haigh QC’s explanationsas to his lack of knowledge. M, on the otherhand, submitted that there could be no realpossibility of apparent bias if the fair mindedand informed observer would accept thearbitrator’s statement as to his lack ofknowledge of the alleged conflict.

W then challenged thetwo awards pursuantto Section 68(2) AA byasserting that therewas seriousirregularity andapparent bias basedon the circumstancesof the case that fellwithin paragraph 1.4of the Non-WaivableRed List of the IBAGuidelines.

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On the IBA Guidelines, M argued that that theIBA Guidelines are mere guidelines and do notoverride any applicable national law.

Decision of the HighCourtMr. Justice Knowles adopted the common lawtest and concluded “without hesitation” that “thefair minded and informed observer would saythis was an arbitrator who did not know ratherthan this was an arbitrator whose credibility is tobe doubted” [23].

In line with decided cases, Mr. Justice Knowlesheld that the Guidelines do not bind the Court,but they can be of assistance. He proceeded toexamine the Guidelines in detail. In this regard,although Mr. Justice Knowles recognised theIBA Guidelines’ distinguished contribution in thefield of international arbitration, he commented

that a case-specific approach should beadopted in the present situation instead ofa rigid application of the said Guidelines.

In his decision, Mr. Justice Knowles wentone step further to identify twoweaknesses in the IBA Guidelines:

[34] …First, in treating compendiously (a)the arbitrator and his or her firm, and (b) aparty and any affiliate of the party, in thecontext of the provision of regular advicefrom which significant financial income isderived. Second, in this treatmentoccurring without reference to thequestion whether the particular facts couldrealistically have any effect on impartialityor independence (including where thefacts were not known to the arbitrator).

He was of the view that the IBA Guidelineswere not ‘yet correct’.

ConclusionThis decision has far reachingramifications given that the IBA Guidelinesare widely accepted as the authoritygoverning situations such as thecircumstance in this case. With Londonusually being adopted as a neutralarbitration seat in cross-borderagreements, this decision has, to a certainextent, diluted the force of the IBAGuidelines in setting a uniform approachin dealing with conflict of interest situationsin international arbitrations.

Mr. Justice Knowles had refused W’sapplication for permission to appeal on thegrounds that the proper forum for thedetermination of any issue regarding theIBA Guidelines was the International BarAssociation, and not the Court of Appeal.It remains to be seen if there will be anyfuture revisions to the Guidelines onaccount of this decision.

In line with decidedcases, Mr. JusticeKnowles held thatthe Guidelines do

not bind the Court,but they can be of

assistance.

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Trouble at Sea Is The End in Sight?

by Trishelea SandosamLL.B (Hons), LL.M, Barrister-at-Law(Lincoln's Inn)Senior Associate, Skrine

In arguably the most anticipatedinternational arbitration award this year,the tribunal constituted to hear the SouthChina Sea dispute involving the Republic

of Philippines and the People’s Republic ofChina (“Tribunal”), handed down its finalaward on 12 July 2016 (“Award”). The 5-member Tribunal unanimously held, amongstothers, that China had no legal basis for itsmaritime claims in the South China Sea basedon historic rights. The significance of thisdecision lies in its elucidation of rights underthe United Nations Convention on the Law ofthe Sea (“UNCLOS”) and because it comesat a time when there is much unresolvedtension between countries like Malaysia andVietnam on entitlements in the South ChinaSea. The South China Sea is prime “property”given its abundance of natural resources andimportance in commercial shipping.

The GenesisThe arbitration was commenced by thePhilippines in 2013. China, despite havingratified UNCLOS and the compulsory disputemechanism resolution provided therein,refused to accept or participate in thearbitration. Nevertheless, the Tribunal wasconstituted pursuant to Annex VII of UNCLOSand the Permanent Court of Arbitration basedin The Hague, Netherlands, was the registryin the proceedings.

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The Tribunal proceeded to hear the Philippines’ claims,empowered by Article 9, Annex VII of UNCLOS whichallows a tribunal to continue proceedings in the absenceof a party. However, in such case, the Tribunal “mustsatisfy itself not only that it has jurisdiction over the disputebut also that the claim is well founded in fact and law”.

The Chinese government, while never making anysubmissions before the Tribunal, expressed its views onthe arbitration by issuing several public statements,diplomatic notes and most importantly, a position paperdated 7 December 2014 (“Position Paper”), where itchallenged the Tribunal’s jurisdiction to determine thePhilippines’ claim.

Did The Tribunal HaveJurisdiction?In view of China’s objection to jurisdiction and mindful ofits obligation under Article 9, Annex VII, the Tribunal helda hearing on jurisdiction in 2015 where China’s stanceon jurisdiction was considered.

The Tribunal issued its award on jurisdiction on 29October 2015 (“Jurisdiction Award”). In the JurisdictionAward, the Tribunal found that it had jurisdiction to hearand determine the dispute before it, but deferred itsdecision on jurisdiction pertaining to several other claimsby the Philippines until completion of the merits hearing.

The Tribunal ultimately decided in its Award that it hadjurisdiction to hear all claims by the Philippines, exceptthose concerning military activities. This is becauseChina had made a declaration under Article 298 ofUNCLOS in 2006 (“2006 Declaration”) to exclude suchcategories of disputes from compulsory disputesettlement under UNCLOS.

It is important to note that despite China’s contentions,this arbitration did not involve questions of sovereigntyover land territory or delimitation of sea boundary. TheTribunal does not have jurisdiction to consider theseissues as the former is not governed by UNCLOS and

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the latter was also excluded by China in its2006 Declaration.

The Award#1 - China’s Historic Claim Dashed

The Tribunal found that there was no basis forChina’s claim to historic rights based on its so-called ‘nine-dash line’. The nine-dash line, asthe name suggests, can simply be describedas nine dashes drawn over the map of theSouth China Sea enclosing an area inside ofwhich China claims maritime rights.

The Tribunal came to this finding aftercarefully considering the history of UNCLOSand deliberations on the issue of pre-existingrights to resources which took place duringthe drafting of the convention. The Tribunalfound that UNCLOS provided for a detailedallocation of rights and maritime zones whichsuperseded any historic rights alleged byChina. The Tribunal also looked at historicalrecords to ascertain the legitimacy of China’sposition that it enjoyed such historical rightsprior to UNCLOS. The Tribunal held that whilethere was evidence to show that Chinesenavigators and fishermen had use of theSouth China Sea, this was an exercise offreedom on the high seas rather than a “right”;and that there was no evidence before it toshow that China had ever exercised exclusivecontrol and exploitation of resources withinthe South China Sea.

#2 - Islands In The Sea? That’s Not What TheyAre

The second question which the Tribunal wasrequired to determine was the status ofseveral features in the Spratley Islands andScarborough Shoal which are claimed byChina, and the maritime zones arisingtherefrom. The importance of determining thestatus of these features is that underUNCLOS, different features generate differentmaritime entitlements.

It is important tonote that despiteChina’s contentions,this arbitration didnot involve questionsof sovereignty overland territory ordelimitation of seaboundary.

The Tribunal considered the status of reefsclaimed by China and found that only 6 reefswere not low tide elevations, and thereforecapable of generating a 12 nautical mileentitlement. In considering whether the reefswere low tide elevations or otherwise, theTribunal, aware of the fact that several reefshad been modified as a result of China’sactivities, looked at the features in theirnatural condition as prescribed by Article 13of UNCLOS and made reference to archivalmaterials and historical hydrographic surveysto determine their natural condition.

The next consideration was whether thesehigh tide features were islands or rocks. Thelatter does not generate a 200 nautical mileexclusive economic zone (“EEZ”) orcontinental shelf under UNCLOS. An island isdefined in UNCLOS as “a naturally formedarea of land, surrounded by water, which is

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above water at high tide”. A rock on the otherhand “cannot sustain human habitation oreconomic life of its own”. The Tribunal heldthat none of the features were “islands” butwere “rocks”. The Tribunal also held that evenif the Spratley Islands were viewedcollectively as a unit, they could not generatemaritime zones.

As all the features claimed by China could notgenerate an EEZ, the Tribunal was able todeclare that certain sea areas were within theEEZ of the Philippines. This declaration wasnot equivalent to a delimitation of seaboundary as China did not have anyoverlapping rights in those areas.

Unlawful ConductThe Tribunal was also asked to consider thelawfulness of several activities carried out byChina in the South China Sea. The Tribunalfound that China’s activities were unlawful andcontrary to the Philippines’ sovereign rights inthose areas. The findings are as follows:-

1. Following from the finding that certainareas were within the EEZ of thePhilippines, China had unlawfullyinterfered with the Philippines’ petroleumexploration at Reed Bank, prohibitedfishing by the Philippines’ vessels withinthe EEZ of the Philippines, failed to

prevent Chinese fishermen from carryingout fishing activities within the EEZ of thePhilippines, and constructed installationsand artificial islands at Mischief Reefwithout the Philippines’ authorisation.

2. China had violated its duty to respect thetraditional fishing rights of fishermen fromthe Philippines by preventing thesefishermen access to the ScarboroughShoal after May 2012.

3. China had breached its obligation topreserve and protect the marineenvironment as embodied in Articles 192and 194 of UNCLOS by carrying outreclamation, construction of artificialislands, and by failing to exercise duediligence to stop the conduct of Chinesefishermen who carried out harvesting ofendangered sea turtles, coral and clamon a wide scale in the South China Seausing methods that inflicted damage onthe coral reef environment.

4. China had breached its obligationsrelating to maritime safety under UNCLOSand the International Regulations forPreventing Collisions at Sea, 1972 whenits law enforcement vessels prevented thePhilippines access to the ScarboroughShoal through risky and dangerousmeans in April and May 2012.

The Tribunal found that UNCLOS providedfor a detailed allocation of rights and

maritime zones which superseded anyhistoric rights alleged by China.

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#3 - Aggravating Behaviour

The Tribunal held that China had engaged inconduct during the currency of the arbitrationwhich both aggravated and extended thedispute between parties, in breach of itsinternational law obligations. Specifically,China had (a) built a large artificial island onMischief Reef (a low-tide elevation in the EEZof the Philippines) (b) inflicted permanent,irreparable harm to the coral reef habitat ofMischief Reef (c) engaged in large-scaleisland-building and construction and (d)permanently destroyed evidence of thenatural condition of several features.

#4 – Declaration On Future Conduct

The Philippines had requested for adeclaration that in future, China is to respectthe rights and freedoms of the Philippines,comply with its duties under UNCLOS, andexercise its rights and freedoms with dueregard to the rights and freedoms of thePhilippines under UNCLOS.

In determining whether to grant thisdeclaration, the Tribunal noted the internationallaw principle of ‘pacta sunt servanda’ asembodied in the Vienna Convention, thattreaties are binding on parties to it and mustbe performed in good faith. The Tribunal furtherconsidered that both parties had in the pastaccepted that the provisions of UNCLOSwould define and regulate their conduct andthat the present dispute before it arose due to

fundamental differences in understandingbetween both parties’ rights and not anyintention on the part of either party to infringethe rights of the other.

Given the international law principle that badfaith is not presumed, coupled with Article 11,Annex VII and Article 296 of UNCLOS whichprovides for compliance by parties to anaward, the Tribunal was of the view that thedeclaration requested by the Philippines wasunnecessary as it was “beyond dispute” thatparties were obliged to comply with theprovisions of UNCLOS and the Award in goodfaith.

Active Fact-Finding ByThe TribunalApart from the significance of this case froma maritime perspective, the Tribunal’s attitudeto fact-finding has attracted attention and isdiscussed in an article1 which will be ofinterest to arbitration practitioners generally. Itwas noted by the author that the Tribunal tooka very active approach to fact-finding byappointing several experts and independentlyobtaining documents such as historic surveyrecords, which is not common and waspossibly attributable to the Tribunal’smindfulness of China’s non-participation in thearbitration and its obligations under Article 9of Annex VII; but given the interestsurrounding the Award, similar active fact-finding may be exercised more commonly infuture.

1 Harry Ormsby, “Judicial fact-finding and the South China Sea arbitration”, Kluwer Arbitration Blog

<http://kluwerarbitrationblog.com/2016/09/06/judicial-fact-finding-and-the-south-china-sea-arbitration/>.

The Tribunal found that China’s activities were unlawful and contrary to the Philippines’

sovereign rights in those areas.

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The Ink Has Dried,What Now?We currently have a well-reasoned, closeto 500-page Award in the Philippines’favour. The landmark decision of theTribunal is final, binding and must becomplied with by the Philippines andChina. This naturally begs the question –how does the Philippines enforce theAward against China?

Unfortunately, UNCLOS does not have amechanism for enforcement. The Chinesegovernment issued a statement on thesame day as the award stating that it“solemnly declares that the award is nulland void and has no binding force. Chinaneither accepts nor recognizes it.”

While this paints a very grim picture,recently in a visit to China, the President ofthe Philippines, Rodrigo Duterte andChina’s leader, Xi Jinping, agreed toresume direct talks on the South China Seadispute. At the end of October 2016,international media reported that Philippinevessels were allowed to access and fish inthe Scarborough Shoal for the first time inyears, although this has been categoricallydenied by China.

What happens next is anyone’s guess. TheTribunal has effectively laid down the law.It is left to be seen if China will comply. Thelengths to which neighbouring countries inthe region will go to assert and protect theirrights under UNCLOS against China andagainst each other is difficult to predict.Perhaps there will be more thrilling awardsto read. Perhaps there will be moreconciliatory bilateral discussions. We canonly wait with bated breath.

What happensnext is anyone’sguess. TheTribunal haseffectively laiddown the law. Itis left to be seenif China willcomply.

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Joint Courses onAlternative DisputeResolution held jointlywith IEM, PAM, and RISM

The MIArb, in collaboration with Pertubuhan Akitek Malaysia,The Royal Institution of Surveyors, Malaysia and The Institutionof Engineers, Malaysia (DRP Subcommittee) organised the JointCourses on Alternative Dispute Resolution for Practitioners. TheCourse was a two-day seminar on arbitration, adjudication, andmediation and featured a discussion on common issues inconstruction contract management.

The MIArb managed the session on “Arbitration: PracticalAspects” and delivered three lectures titled “Introduction toArbitration. Why Arbitrate?”, “The Hearing Process, Procedureand Practice. Managing the Expert Witness”, and “Enforcing theArbitral Award”. Speaking for the MIArb were the MIArb’sPresident Mr Kevin Prakash, former Council Member Mr JoshuaChong, and Council Member Ms Sharon Chong.

March 2016

Courtesy Visits to the Officesof MBAM, CIDB, and CIOB January 2016

Several Council Members of the MIArb visited the MasterBuilders Association Malaysia (MBAM) on 18 January 2016, theConstruction Industry Development Board (CIDB) on 6 May2016, and the Chartered Institute of Building Malaysia (CIOB)on 25 May 2016. The visits formed part of the MIArb’s continuedefforts in fostering good relations, with a view to creating greaterexposure of the work carried out by the MIArb and exploringpotential future collaborations. The MIArb is hopeful that moresuch visits will occur with regularity in the coming year.

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Held jointly with the KLRCA on 19April 2016, the talk was well-received with an attendance of40 participants who heard theMIArb’s Immediate PastPresident, Mr Lam Ko Luen andformer Council Member, Mr OoiHuey Min, speak at length onsection 37 of the MalaysianArbitration Act 2005 and thedevelopments of case law withregard to this particular section,which prompted spiriteddiscourse and a host ofthoughtful questions from areceptive audience.

Afternoon Talk on

“Finality to Awards inInternational Arbitrationseated in Malaysia –Arbitrators Beware!”April 2016

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The MIArb 3rd AnnualLaw ReviewMay 2016

The Annual Law Review is a favourite fixture on the MIArbcalendar, and this year proved to be no exception. TheReview was extended to a half day event, and featuredleading practitioners who led in-depth and insightfuldiscussions on recent cases in arbitration andadjudication in 2015.

The MIArb’s President, Mr Kevin Prakash opened theevent and the Honourable Dato' Mary Lim JCA deliveredthe keynote address. There were three distinct sessionsfor this Review. The discussion on arbitration was led byMr Ooi Huey Min and Mr Thayananthan Baskaran andmoderated by the MIArb’s Immediate Past President, Mr Lam Ko Luen. The adjudication trio comprised of theMIArb's Vice President, Ms Hor Shirley, Mr KamrajNayagam and Mr Anilraj Verdamanickam, with Mr IvanLoo moderating.

An enthusiastic discussion on the Future of Arbitration inMalaysia followed suit, ably conducted by MrMohanadass Kanagasabai, Mr Lim Chee Wee and MrNick White. A presentation on the newly launchedInternational Malaysian Society of Maritime Law by itspresident, Ms Sitpah Selvaratnam was also made,following which the participants adjourned for cocktailsand canapes; a most convivial end to another successfulReview.

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RAIFConferenceSydney, AustraliaNovember 2016

This year’s annual Regional Arbitral Institutes Forum (RAIF)Conference was hosted by the Resolution Institute inSydney, Australia on 25 November 2016. The RAIFConference: Building the future of arbitration throughinnovation was held in conjunction with Sydney ArbitrationWeek 2016. The MIArb is one of the founding members ofRAIF, a collaboration established in 2007 between thenational arbitral institutes in the region. Aside from theMIArb, the other members of RAIF are the ResolutionInstitute of Australia and New Zealand, the ArbitrationAssociation of Brunei Darussalam (AABD), the Hong KongInstitute of Arbitrators (HKIArb), the Indonesian ArbitratorsInstitute (IArbI), the Singapore Institute of Arbitrators(SIArb), and the Philippine Institute of Arbitrators (PIArb).RAIF has several objectives, all with the common threadof promoting the resolution of disputes by way ofarbitration and other forms of alternative disputeresolution. The main objectives of RAIF are to develop acommon arbitral culture, to enhance consistency inregional arbitration practice and to promote understandingand foster fellowship between the member institutes ofRAIF. The key event of RAIF is its annual conference thatits member institutes take turns to host.

The theme for RAIF 2016 was Building the future ofarbitration through innovation. The MIArb's DeputyPresident, Mr Sudharsanan Thillainathan and CouncilMember, Ms Sharon Chong, attended on behalf of MIArb.The conference started off with welcome speeches byDonna Ross, Chair of the Conference Organising Committee, Gadigall people of the Eora nation and Mark Beech,Deputy Chair of the Resolution Institute. The openingaddress was delivered by the Supreme Court Justice ofNew South Wales Robert McDougall. In keeping with atradition that goes to the very heart of RAIF, the presidentsor representatives of the RAIF member institutes presentedon the developments in arbitration in their respectivejurisdictions during the session on ‘Promotion, growth andpractice of arbitration in the region’. Sudhar spoke aboutthe Malaysian experience on ‘Appeals on Questions ofLaw’ in this session. This was followed by three round tablediscussions on ‘Thinking outside the box – innovation inarbitration’, a very interesting session ‘Arbitration – the

untapped potential in family law’ and ‘Controlling costs inarbitration – from beginning to end’. There were alsosessions on ‘Innovation in arbitration – the Singaporeexperience’ and ‘Navigating the minefields of corporatedisputes – to litigate or arbitrate’, presented by Sharon.

The MIArb thanks the Resolution Institute of Australia fortheir very warm welcome and the hospitality extended tothe delegates. It was indeed a pleasure meeting with the representatives from the other RAIF membercountries, listening to the latest developments in each of these member countries in their Country Reports and exchanging views and ideas with them on arbitration.

By: Sudharsanan Thillainathan and Sharon Chong

New Members/Upgrades for SessionDecember 2015 to November 2016

Upgraded from Member to Fellow M/No. Date Approved1.Ms Chu Ai Li F/118 21-4-20162.Ms Victoria Loi Tien Fen F/119 27-7-2016

Member M/No. Date Approved1.Ms Yap Pei Ying M/446 15-10-20152.Ms Ayesha Zia M/447 15-10-20153.Dr Chan Yuan Eng M/448 17-12-20154.Ms Patricia Chung Wei Leng M/453 21-4-20165.Mr Nicholas William White M/457 26-5-20166.Ms Tay Hwee Hoon, Janice M/459 27-7-20167.Mr Pathmanathan Ramasamy M/460 27-7-20168.Ms Chew Swee Wei M/461 27-7-20169.Mr Iain Cameron Potter M/462 27-7-201610.Mr Vineet Shrivastava M/464 25-8-201611.Dr Chan Chee Ching M/465 27-10-2016

Upgraded from Associate to Member M/No. Date Approved1.Ms Nur Hidayah binti A Suhaimi M/449 21-4-20162.Ms Poh Hwee Yin M/450 21-4-20163.Mr Kim Tien Yuen M/451 21-4-20164.Mr Chan Nam Onn M/452 21-4-20165.Ms Nahzatul Ain binti Mohd Khalid M/454 21-4-20166.Mr Neo Chi Siong M/455 21-4-20167.Mr Lee Chee Leong, James M/456 21-4-20168.Mr Gregory Vinesh Das M/458 26-5-20169.Mr Verghese Aaron Mathews M/463 25-8-2016

Associate M/No. Date Approved1.Ms Michelle Ng Po Yi A/231 18-2-20162.Mr Kwan Wing Sin A/232 18-2-20163.Ms Ong Siew Mun, Kelly A/236 21-4-20164.Ms Tie Ling Lin, Avelyn A/237 21-4-20165.Ms Khoo Sin Lay A/238 27-7-20166.Dato’ Sri Sri Padmaraja a/l Varatharajah A/239 27-7-20167.Ms Dawn Wong Keng Jade A/240 27-7-20168.Ms Norhafizah Ahmad Powzi A/242 25-8-20169.Mr Ong Hing Huat A/243 25-8-201610.Ms Wong Jian Bei A/244 27-10-2016

Upgraded from Affiliate to Associate M/No. Date Approved1.Ms Koveladavei a/p Perumal A/241 27-7-2016

The Malaysian Institute of Arbitrators extendsa warm welcome to our new Fellows,Members, Associates and Affiliates.

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23 February 2017A talk on “Keeping Financial Experts Objective in ArbitralProceedings” Speaker: Mr Iain Cameron Potter

February 2017Diploma in International Arbitration(in collaboration with Brickfields Asia College)

February 2017 The MIArb Membership Upgrade Course

March 2017 Workshops on Alternative Dispute Resolution

19 April 2017 A talk by Mr Ben Olbourne

18 May 2017 The MIArb Annual Review and Conference

June 2017 The MIArb Annual General Meeting

For more information about the events on this page andother upcoming events organised by or participated inby the MIArb, visit our website: www.miarb.com.

UpcomingEvents

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