Malaysia: International Arbitration (4th edition)

The In-House Lawyer Logo

This country-specific Q&A provides an overview of the legal framework and key issues surrounding international arbitration law in Malaysia.

This Q&A is part of the global guide to International Arbitration.

For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/international-arbitration-4th-edition/

  1. What legislation applies to arbitration in your country? Are there any mandatory laws?

    The Malaysian Arbitration Act 2005 as amended by the Arbitration (Amendment) (No.2) Act 2018 (Arbitration Act) governs domestic and international arbitration in Malaysia.

  2. Is your country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention?

    Malaysia is a signatory to the New York Convention. Malaysia has a declaration that ‘The Government of Malaysia will apply the Convention on the basis of reciprocity, to the recognition and enforcement of awards made only in the territory of another Contracting State. Malaysia further declares that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under Malaysian law’.

  3. What other arbitration-related treaties and conventions is your country a party to?

    Apart from the New York Convention, Malaysia is also a contracting state of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), given effect through the Convention on Settlement of Investment Disputes Act 1966.

    Additionally, Malaysia is also a signatory to the ASEAN Comprehensive Investment Agreement 2009.

  4. Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?

    The Arbitration Act is based substantially on the UNCITRAL Model Law, subject to some alterations.

    In this regard, some of the notable differences are as follows (not exhaustive):-

    1. Section 17 of the Arbitration Act provides that an order made prior to the replacement of an arbitrator shall not be invalid merely because there was a change in composition of the arbitral tribunal;
    2. the Arbitration Act makes a distinction between domestic and international arbitration when determining the number of arbitrators where parties could not agree on the appointment of such;
    3. Section 27(d) of the Arbitration Act provides that in the event the claimant fails to proceed with its claim, the arbitral tribunal may make an award dismissing the claim or give directions, for the speedy determination of the claim.
    4. Matters covered under Part III and IV of the Arbitration Act are not specifically dealt with under the UNCITRAL Model Law; and
    5. The Arbitration Act provides for an order for security for costs as an interim measure where no such provisions are accorded under the UNCITRAL Model Law.
  5. Are there any impending plans to reform the arbitration laws in your country?

    Currently, so far as we are aware, there are no impending plans to reform the arbitration laws in Malaysia.

  6. What arbitral institutions (if any) exist in your country? When were their rules last amended? Are any amendments being considered?

    The Asian International Arbitration Centre (AIAC), formerly known as the Kuala Lumpur Regional Center for Arbitration (KLRCA) is the leading arbitral institution in Malaysia. The latest arbitration rules revised by the AIAC is the AIAC Arbitration Rules 2018, which came into force on 9 March 2018 (AIAC Rules).

  7. What are the validity requirements for an arbitration agreement under the laws of your country?

    Section 9 of the Arbitration Act outlines the definition and form of an arbitration agreement. In this regard and in brief:-

    1. An arbitration agreement shall be in writing; and
    2. An arbitration agreement may be in the form of an arbitration clause in an agreement or in the form of a separate agreement

    Section 9(4) of the Arbitration Act provides that an arbitration agreement is in writing if :-

    1. its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means; or
    2. if it is contained in an exchange of statement of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other

    Section 4A of the Arbitration Act also states that the requirement that an arbitration agreement be in writing is met by any electronic communication that the parties make by means of data message if the information contained therein is accessible so as to be useable for subsequent reference.

  8. Are arbitration clauses considered separable from the main contract?

    Yes. Section 18(2)(a) of the Arbitration Act states that an arbitration clause which forms part of an agreement shall be treated as an agreement independent of the other terms of the agreement.

    Section 18(2)(b) of the Arbitration Act provides that a decision by the arbitral tribunal having the effect of rendering the main contract null and void shall not, by operation of law, result in an arbitration clause being invalid.

  9. Is there anything particular to note in your jurisdiction with regard to multi-party or multi-contract arbitration?

    Agreement of the parties to an arbitration agreement is required before a third party can be joined, given, inter alia, an arbitration agreement would be subject the doctrine of privity of contract. In this regard, the arbitral tribunal must be clearly and expressly conferred the power to allow a joinder of parties.

    As a general guiding principle, Section 40(2) of the Arbitration Act provides that the tribunal has no power to order consolidation of arbitration proceedings or concurrent hearings unless the parties agree to confer the tribunal with such powers. In this regard, the High Court in Lingkaran Luar Butterworth (Penang) Sdn Bhd v Perunding Jurutera Dah Sdn Bhd & Ors [2005] 6 CLJ 334 held, inter alia, that ‘While the court has the power to consolidate actions, it is not the same with arbitration. Under the Act, unless the parties agree, the arbitrator himself cannot order consolidation or concurrent hearing. The parties must confer such power on the arbitral tribunal before it can order consolidation or concurrent hearings’.

  10. In what instances can third parties or non-signatories be bound by an arbitration agreement?

    The general rule is that an arbitration agreement is not binding on a third party or non-signatory given, inter alia, that it would be contrary to the doctrine of privity of contract.

    Nevertheless, a person who is not a signatory to the arbitration agreement can be added as a party with the signatories’ consent.

  11. How is the law applicable to the substance determined? Is there a specific set of choice of law rules in your country?

    In respect to domestic arbitration, Section 30(1) of the Arbitration Act provides that unless otherwise agreed by parties, where the seat of arbitration is in Malaysia, the arbitral tribunal shall decide the dispute in accordance with the substantive law of Malaysia.

    As for international arbitration, Section 30(2) of the Arbitration Act states that the arbitral tribunal shall decide the dispute in accordance with the substantive law agreed upon by parties.

  12. Are any types of dispute considered non-arbitrable? Has there been any evolution in this regard in recent years?

    Previously, Section 4(1) of the Arbitration Act provided that any dispute which parties have agreed to submit and/or refer to arbitration may be determined by arbitration unless the arbitration agreement is contrary to public policy.

    However, amendments to the Arbitration Act has been made and post amendments, under section 4(1) of the Arbitration Act, another category of dispute which may not be “arbitrable”, aside from public policy, are matters where the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia.

    See for example the Federal Court decision in Arch Reinsurance Ltd v Akay Holding Sdn Bhd [2019] 1 CLJ 305 where the Federal Court held that a private agreement to curtail a statutory right of a charge to an indefeasible title of land and to sell charged security in the event of default by a chargor was contrary to public policy on the basis that the National Land Code of Malaysia which sets out the rights and remedies of parties under a statutory charge over land, are exhaustive and exclusive. In this respect, the Federal Court held as follows:-

    [67] The NLC is a complete and comprehensive code of law governing the tenure of land in Malaysia and the incidence of it as well as other important matters affecting land: United Malayan Banking Corp Bhd v. Pemungut Hasil Tanah, Kota Tinggi & Another Case [1984] 2 CLJ 146; [1984] 1 CLJ (Rep) 51; [1984] 2 MLJ 87. In Kimlin Housing Development Sdn Bhd v. Bank Bumiputera (M) Bhd, it was held that the provisions of the NLC setting out the rights and remedies of parties under a statutory charge over land comprised in Pt XVI are exhaustive and exclusive and any attempt at contracting out of those rights unless expressly provided for in the Code - would be void as being contrary to public policy. Hence, the dispute triggered by the statutory notice of demand in Form 16D is not arbitrable under s. 4(1) of the Arbitration Act 2005

  13. In your country, are there any restrictions in the appointment of arbitrators?

    No, there are no restrictions in the appointment of arbitrators. In this respect, Section 13(2) provides that parties are free to agree on a procedure for appointing the arbitrator.

    Additionally, Section 13(1) of the Arbitration Act also states that, unless otherwise agreed by parties, no person shall be precluded from acting as an arbitrator by reason of nationality.

  14. Are there any default requirements as to the selection of a tribunal?

    Where the arbitration consists of three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator pursuant to Section 13(3) of the Arbitration Act. However, either party may apply to the Director of the AIAC for the appointment of an arbitrator in the event:-

    1. a party fails to appoint an arbitrator within 30 days of receipt of a request in writing to do so; or
    2. the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment or such extended period as the parties may agree.

    Where the arbitration is to be presided by a single arbitrator, either party may apply to the Director of the AIAC for the appointment of an arbitrator where:-

    1. the parties fail to agree on a procedure to appoint an arbitrator; and
    2. the parties fail to agree on an arbitrator.
  15. Can the local courts intervene in the selection of arbitrators? If so, how?

    In the event the Director of the AIAC is unable to act or fails to act within 30 days from the request to appoint an arbitrator, any party may apply to the High Court for such appointment.

  16. Can the appointment of an arbitrator be challenged? What are the grounds for such challenge? What is the procedure for such challenge?

    Section 14(3) of the Arbitration Act provides that an arbitrator may only be challenged where there are circumstances that give rise to justifiable doubts as to the arbitrator’s impartiality or independence, or where the arbitrator does not possess qualifications agreed to by parties.

    Section 15 of the Arbitration Act outlines the procedure for challenging an arbitrator’s appointment. A challenge may be initiated within 15 days after becoming aware of the constitution of the tribunal, or of any reasons referred to in Section 14(3), by sending a written statement of the reasons for the challenge to the tribunal.

    If the challenge is unsuccessful, the challenging party may, within 30 days after having received notice of the decision rejecting the challenge, apply to the court to make a decision on the challenge.

  17. What happens in the case of a truncated tribunal? Is the tribunal able to continue with the proceedings?

    Section 16(1) of the Arbitration Act provides that where an arbitrator becomes in law or in fact unable to perform its functions, or for other reasons fails to act without undue delay, that arbitrator’s mandate is terminated on withdrawal from office or if the parties agree on such termination.

    Consequently, a substitute arbitrator shall be appointed in accordance with Section 17(1) of the Arbitration Act.

  18. Are arbitrators immune from liability?

    Section 47 of the Arbitration Act states that the arbitrator shall not be liable for any act or omission in respect to anything done or omitted in the discharge of his functions as an arbitrator unless the act or omission is shown to have been in bad faith.

  19. Is the principle of competence-competence recognised in your country?

    Yes. Section 18(1) of the Arbitration Act provides that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

  20. What is the approach of local courts towards a party commencing litigation in apparent breach of an arbitration agreement?

    In the event a party commences litigation in breach of an arbitration agreement, Section 10 of the Arbitration Act allows the aggrieved party to apply for a stay of the court proceedings and refer the dispute to arbitration, unless the agreement is null and void, inoperative or incapable of being performed, or if the party applying for a stay has taken steps in the proceedings.

    The Malaysian Federal Court in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 held, inter alia, that ‘The court should lean more towards granting a stay pending arbitration under s 10(1) of the 2005 Act, even in cases where the court is in some doubt about the validity of the arbitration clause or where it is arguable whether the subject matter of the claim falls within or outside the ambit of the arbitration clause.

    The general principles set out in the Press Metal case were followed by the Federal Court in the case of Far East Holdings Bhd & Anor v Majlis Ugama Islam dan Adat Resam Melayu Pahang & Other Appeals [2018] 1 CLJ 693.

  21. How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods or time bars of which the parties should be aware?

    Based on Section 23 of the Arbitration Act, unless otherwise agreed by parties, arbitral proceedings are deemed to be commenced on the date a request in writing for a dispute to be referred to arbitration is received by the respondent.

    Nevertheless, Section 30(1) of the Limitation Act 1953 (Limitation Act) provides that the Limitation Act and any other written law relating to limitation of actions shall apply to arbitrations.

    In this respect, Section 30(3) of the Limitation Act provides that an arbitration shall be deemed to commence when one party to the arbitration serves on the other party a notice requiring the other party to appoint an arbitrator or agree to the appointment of an arbitrator, or where the submission provides that the reference to arbitration shall be to a person named or designated in the submission, requiring the other party to submit the dispute to the person named or designated.

  22. In what circumstances is it possible for a state or state entity to invoke state immunity in connection with the commencement of arbitration proceedings?

    Section 5 of the Arbitration Act provides that the Arbitration Act shall apply to any arbitration to which the Federal Government of Malaysia or the Government of any component state of Malaysia, is a party.

    However, in respect to foreign state parties, it is worth noting that the Supreme Court in Commonwealth of Australia v Midford (Malaysia) Sdn Bhd [1990] 1 MLJ 475 held that Malaysia subscribes to the doctrine of restrictive state immunity. As such, governmental actions which are commercial or private in nature are not afforded with state immunity. However, state immunity is available for public and sovereign actions of a state.

  23. What happens when a respondent fails to participate in the arbitration? Can the local courts compel participation?

    In the event a respondent fails to communicate its statement of defence in accordance with Section 25(1) of the Arbitration Act, the arbitral tribunal shall continue the proceedings without treating such failure as an admission of the claimant’s allegations and/or claims.

    It also worth noting that Section 27(c) of the Arbitration Act also provides that in the event a party to an arbitration proceeding fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it.

  24. Can local courts order third parties to participate in arbitration proceedings in your country?

    There are no provisions under the Arbitration Act which confers local courts the power to compel/order third parties to participate in arbitration proceedings.

  25. What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?

    Section 11(1) provides that a party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for the party to:-

    1. Maintain or restore the status quo pending the determination of the dispute;
    2. Take action that would prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process;
    3. Provide a means of preserving assets out of which a subsequent award may be satisfied, whether by way of arrest of property or bail or other security pursuant to the admiralty jurisdiction of the High Court;
    4. Preserve evidence that may be relevant and material to the resolution of the dispute; or
    5. Provide security for the costs of the dispute.
  26. Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence? Can local courts compel witnesses to participate in arbitration proceedings?

    The Evidence Act 1950 (Evidence Act), which is the principal legislation governing rules of evidence in Malaysia, does not apply to proceedings before an arbitrator (see Section 2 of the Evidence Act). Section 21(3) of the Arbitration Act states that an arbitral tribunal is conferred with the power to, inter alia, determine the admissibility, relevance, materiality and weight of any evidence.

    In respect to the court’s role in obtaining evidence, Section 29 (1) of the Arbitration Act allows any party, with the approval of the arbitral tribunal, apply to the High Court for assistance in taking evidence. In this respect, Section 29(2) provides that the High Court may order the attendance of a witness to give evidence, or where applicable, produce documents on oath or affirmation before an officer of the High Court or any other person, including the arbitral tribunal.

  27. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your country?

    Although there are no specific set of legislation and/or rules to govern counsels in conducting arbitration proceedings, advocates and solicitors in Malaysia are expected to abide by the Legal Profession (Practice and Etiquette) Rules 1978.

    However, as for arbitrators, the AIAC has produced its own Code of Conduct that governs arbitrators.

  28. In your country, are there any rules with respect to the confidentiality of arbitration proceedings?

    Generally, Section 41A(1) provides that unless otherwise agreed by parties, no party may publish, disclose or communicate any information relation to the arbitral proceedings under the arbitration agreement or an award made in those arbitral proceedings.

    However, there are exceptions provided in Section 41A(2) of the Arbitration Act which reads as follows:-

    1. (2) Nothing in subsection (1) shall prevent the publication, disclosure or communication of information referred to in that subsection by a party –
      1. if the publication disclosure or communication is made –
        1. to protect or pursue a legal right or interest of the party; or
        2. to enforce or challenge the award referred to in that subsection

        In legal proceedings before a court or other judicial authority in or outside Malaysia

      2. if the publication, disclosure or communication is made to any government body, regulatory body, court or tribunal and the party is obliged by law to make the publication, disclosure or communication; or
      3. if the publication, disclosure or communication is made to a professional or any other adviser of the parties’

  29. How are the costs of arbitration proceedings estimated and allocated?

    The estimated costs of an arbitration proceedings would normally depend on, amongst others, the arbitral institution chosen by parties.

    In respect to the allocation of costs, although the general principle is that ‘costs follows the event’, Section 44 of the Arbitration Act provides that unless otherwise agreed by parties, the costs and expenses of an arbitration shall be in the discretion of the arbitral tribunal. In this respect, the arbitral tribunal can apportion costs in any manner it determines reasonable taking into consideration the circumstances of each case (see Court of Appeal decision in SDA Archtiects (sued as a firm) v Metro Millenium Sdn Bhd [2014] 2 MLJ 627)

  30. Can pre- and post-award interest be included on the principal claim and costs incurred?

    In light of the amendments to the Arbitration Act through the Arbitration (Amendment) (No.2) Act 2018, Section 33 has been amended to include subsection 33(8) which provides that ‘where an award directs a sum to be paid, that sum shall, unless the award otherwise directs, carry interest as from the date of the award and at the same rate as a judgment debt

  31. What legal requirements are there in your country for the recognition and enforcement of an award? Is there a requirement that the award be reasoned, i.e. substantiated and motivated?

    Section 38 of the Arbitration Act outlines the general requirements for the enforcement of an award. An arbitration award made in respect to an arbitration where the seat of arbitration is in Malaysia or an award from a state which is a party shall be recognised as binding and be enforced by entry as a judgment in terms of the award or by action upon an application in writing to the High Court. In this respect, the applicant shall:-

    1. produce the duly authenticated original award or a duly certified copy of the award;
    2. produce the original arbitration agreement or a duly certified copy of the agreement; and
    3. in the event the award or arbitration agreement is neither in the English language nor the national language i.e. Malay, the applicant must provide a duly certified translation of the award or arbitration agreement in the English language.

    In respect of the form and content of an arbitration award, pursuant to Section 33(3) of the Arbitration Act, an award shall state the reasons upon which it is based unless parties have agreed that no reasons are to be given or if parties have reached a settlement, whereby the terms of settlement would then be recorded in the form of an award.

  32. What is the estimated timeframe for the recognition and enforcement of an award? May a party bring a motion for the recognition and enforcement of an award on an ex parte basis?

    Enforcement of awards would fall under the jurisdiction of the High Court and it would typically take three to nine months for an arbitration award to be enforced.

    Order 69 Rule 4 of the Rules of Court 2012 (ROC) provides that the originating summons for an arbitration claim (as defined under Order 64 Rule 2 of the ROC) may be made on an ex parte basis, but when it is served, it must be served together with the supporting affidavit within 30 days.

  33. Does the arbitration law of your country provide a different standard of review for recognition and enforcement of a foreign award compared with a domestic award?

    No.

  34. Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts?

    The Arbitration Act does not provide any limitations in relation to the types of remedies available in arbitration.

  35. Can arbitration awards be appealed or challenged in local courts? What are the grounds and procedure?

    Courts generally do not exercise appellate jurisdiction over arbitration awards. In this respect, please note the Court of Appeal decision in Pembinaan LCL Sdn Bhd v SK Styrofoam (M) Sdn Bhd [2007] 4 MLJ 113 where the Court of Appeal held, inter alia, that ‘It is the unanimous view of all the authorities that the High Court in exercising its statutory jurisdiction under the Arbitration Act 1952 does not enjoy appellate jurisdiction’. Although this case was decided under the repealed Arbitration Act 1952, currentlly, the position of law remains the same.

    Nevertheless, Section 37 of the Arbitration Act provides that a party to an arbitration proceeding may make an application to the High Court for an order to set aside an arbitration award. Pursuant to Section 37(4) of the Arbitration Act, an application to set aside an arbitration award must be made within 90 days of the date the aggrieved party has received the arbitration award.

    The grounds to set aside an arbitration award are also set out under Section 37 of the Arbitration Act, which include but are not limited to the following:-

    1. The award is in contrary to public policy;
    2. The subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia;
    3. There was a breach of the rules of natural justice;
    4. The making of the award was induced or affected by fraud or corruption;
    5. The aggrieved party was not given proper notice of the appointment of an arbitrator or was otherwise unable to present its case;
    6. The award deals with a dispute not falling within the terms of the submission to arbitration;
    7. The award contains decision on matters beyond the scope of the submission to arbitration.
  36. Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)?

    An award is final and binding, subject to it being set aside, and generally, there is no right to appeal.

    In Malaysia, it appears that parties to an arbitration proceeding may not waive its rights to set aside an award, which is provided under Section 37 of the Arbitration Act, even by consent, given, inter alia, that Section 37 falls under Part II of the Arbitration Act which mandatorily governs domestic and international arbitrations in Malaysia pursuant to Section 3 of the Arbitration Act.

  37. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    As indicated above, the Supreme Court in Commonwealth of Australia v Midford (Malaysia) Sdn Bhd [1990] 1 MLJ 475 held that Malaysia subscribes to the doctrine of restrictive state immunity. As such, governmental actions which are commercial or private in nature are not afforded with state immunity. However, state immunity is available for public and sovereign actions of a state.

  38. In what instances can third parties or non-signatories be bound by an award? To what extent might a third party challenge the recognition of an award?

    An award does not bind third parties as it operates in personam between parties, except where such third party has agreed to be bound by it.

    Additionally, it appears that a third party may not challenge the recognition of an award. In this regard, Section 39(1) of the Arbitration Act provides that the recognition or enforcement of an award, may be refused only at the request of the party against whom it is invoked.

  39. Have courts in your jurisdiction considered third party funding in connection with arbitration proceedings recently?

    The High Court in Measat Broadcast Netowk Systems Sdn Bhd v AV Asia Sdn Bhd [2014] MLJU 1860 considered third party funding in arbitration and held that the apparent impecuniosity of a company despite third party funding is a relevant factor to be taken into consideration in a security for costs application. In this respect, the High Court held as follows:-

    [63] …Suffice to state that on the facts of this case it appears that AV Asia will not be able to pay Measat’s costs if they lose their counterclaim and costs are awarded against them in favour of Measat. The third party, Chew Weng Kit, who has assisted by substantially funding AV Asia, will not be legally bound to pay such costs. This means that Measat will be deprived of the advantage of having an order for costs made in its favour against AV Asia, even if it succeeds in its counterclaim. It is also apparent from the entire factual matrix that Measat has been forced to initiate an arbitration (which is not inexpensive) by AV Asia, which appears to be impecunious, but has been able to fund proceedings thus far with the assistance of a third party. This to my mind, is a significant and relevant factor to be taken into consideration in this application.
    [64] I am supported in arriving at this conclusion by, inter alia, an excerpt from a text, namely ‘Provisional Measures in International Arbitration by Gary B. Born (see Chapter 16) where the author states as follows:-
    “Where security for costs may be ordered, tribunals typically consider the financial state of the party from whom security is requested, the extent to which third parties are funding that party’s participation in the arbitration (while arguably remaining insulated from a final costs award) and the likely difficulties in enforcing a final costs award. Where a party appears to lack assets to satisfy a final costs award, but is pursuing claims in an arbitration with the funding of a third party, then a strong prima facie case for security for costs exists. It is doubtful that the likelihood of a party’s success on the merits plays a significant role in determining whether it is appropriate to order security for costs.”’

  40. Is emergency arbitrator relief available in your country? Is this frequently used?

    Yes, it is available under the AIAC Rules (see Schedule 3 of the AIAC Rules). However, we have yet to see such relief being frequently used in arbitration proceedings in Malaysia.

  41. Are there arbitral laws or arbitration institutional rules in your country providing for simplified or expedited procedures for claims under a certain value? Are they often used?

    Although the expedited procedures in arbitral proceedings in Malaysia are not contingent on the quantum involved, the AIAC has introduced its own Fast Track Arbitration Rules to expedite straightforward cases as well as disputes where the amount in dispute is small.

  42. Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?

    AIAC took the initiative to promote transparency when it adopted the ‘UNCITRAL Rules on Transparency in Treatybased Investor-State Arbitration’ through the AIAC Rules 2018.

  43. Is diversity in the choice of arbitrators and counsel (e.g. gender, age, origin) actively promoted in your country? If so, how?

    The AIAC and members of the Malaysian Bar have continuously promoted diversity in the arbitration industry.

    Additionally, it is worth noting that Section 3A of the Arbitration Act allows for parties to arbitration proceedings to be represented by any legal representative of their own choice.

  44. Have there been any recent court decisions in your country considering the setting aside of an award that has been enforced in another jurisdiction or vice versa?

    Generally, the Courts in Malaysia are reluctant to set aside an arbitration award made in another jurisdiction. In this respect, the High Court in Twin Advance(M) Sdn Bhd v Polar Electro Europe BV [2013] 7 MLJ 811 held that ‘the principle of law that the seat of arbitration is the place where challenges to an award are made remains applicable and good law. Any challenge including an application to strike out or set aside an arbitral award where the seat is outside Malaysia is to be at the seat of the arbitration.

  45. Is corruption an issue that is regularly raised in your jurisdiction? What standard do local courts apply for proving of corruption?

    In general, in Malaysia, like in many other jurisdictions, any act of corruption is prohibited and if proven, can be a criminal offence. In this regard and in general, the standard of proof in criminal proceedings is ‘beyond reasonable doubt’.

  46. Have there been any recent court decisions in your country considering the definition and application of “public policy” in the context of enforcing or setting aside an arbitral award?

    Recently, the Federal Court in Jan De Nul (Malaysia) Sdn BHd & Anor. v. Vincent Tan Chee Yioun & Anor. [2019] 1 CLJ 1 dealt with the scope and application of public policy and held as follows:-

    [58] The scope of public policy ground for setting aside an arbitral award could only be invoked in deserving case ie, in instances where it appears a violation of the most basic notions of morality and justice. It covers fundamental principles of law and justice in substantive as well as procedural respect. Instances where the upholding of an arbitral award would shock the conscience, or clearly injurious to the public good, or wholly offensive to the ordinary reasonable and fully informed member of the public, had been held by courts in various jurisdiction to fall within the category of public policy ground for setting aside an arbitral award.

  47. Have there been any recent court decisions in your country considering the judgment of the Court of Justice of the European Union in Slovak Republic v Achmea BV (Case C-284/16) with respect to intra-European Union bilateral investment treaties or the Energy Charter Treaty? Are there any pending decisions?

    There are no recent court decisions which considered the judgment of the Court of Justice of the European Union in Slovak Republic v Achmea BV (Case C-284/16)

  48. Have there are been any recent decisions in your country considering the General Court of the European Union’s decision Micula & ors (Joined Cases T-624/15, T-694/15 and T-694.15), ECLI:EU:T:2019:423, dated 18 June 2019? Are there any pending decisions?

    There are no recent court decisions which considered the General Court of the European Union’s decision Micula & ors (Joined Cases T-624/15, T-694/15 and T-694.15), ECLI:EU:T:2019:423, dated 18 June 2019