IN A MATTER of ARBITRATION

WHAT IS ARBITRATION

Arbitration, a form of alternative dispute resolution (ADR), is a way to resolve disputes outside the courts. The dispute will be decided by one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), which renders the “arbitration award”. An arbitration award is legally binding on both sides and enforceable in the courts. Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that one party imposes on the other, in which the parties agree to hold all existing or future disputes to arbitration, without necessarily knowing, specifically, what disputes will ever occur) and can be  binding.  – Wikipedia

ARBITRATION IN MALAYSIA

The Malaysian Arbitration Act 2005 (AA) is modeled on the UNCITRAL Model Law on International Commercial Arbitration 1985 (with amendments as adopted in 2006) (Model Law) and the New Zealand Arbitration Act 1996. Malaysia is a common law jurisdiction, and the Malaysian courts regard decisions by Commonwealth courts as highly persuasive, particularly in commercial matters. The Malaysian courts have repeatedly held that an arbitral award is conclusive and can only be challenged in exceptional circumstances. In particular, international awards (which include any award where one party is not Malaysian) can only be challenged on the grounds set out in the New York Convention. An award will not be set aside merely because of the failure of an arbitrator to draw correct inferences of fact. In 2018, the Act has been amended again by removing s.42 for minimal court intervention on the question of law.

AIAC NEWS ON AA2018

PAM Arbitration Regime

PAM since its publication of the PAM Form, has maintained an arbitration regime for the appointment of arbitrators to arbitrate matters arising from the administration of the PAM Form. It has since remained one of the technically competent arbitration regimes along side the IEM and ISM respectively, where arbitrators were among the most technically qualified professionals in the construction industries to arbitrate matters concerning construction works and payments. Its forte in providing technically trained arbitrators had also contributed to the field of arbitration in the country where most of the members had instrumentally established the Malaysian Institute of Arbitrators MIArb. Till this date, PAM has remained the sole survivor of Technical Arbitration regime providing its services to the stakeholders at large.

PAM Arb RULES 2019

AIAC Arbitration Regime

Formerly known as the KLRCA, was formed by an agreement with the Asian-African Legal Consultative Organization AALCO, among one of the arbitration center in Asia alongside the more popular arbitration service providers such as the Singapore Arbitration Center and the HongKong Arbitration Center. It has since made its mark in Asean by championing the role of Construction Adjudication and opening up Arbitration to international players notably from the Chartered Institute of Arbitrators CIArb. It has since become the preferred choice for arbitration with its seat in Kuala Lumpur, Malaysia.

HOW TO APPOINT US?

Arbitration is a mutual agreement between parties to resolve any dispute arising between them by an independent 3rd party tribunal, called an Arbitrator. Either party could write in to us, for an ad-hoc arbitration,  specifying  their nature of their disputes and their intention of the dispute to be heard and we shall henceforth, forward our term of appointment for the parties to agree and appoint. There must be an agreement between the parties that arbitration shall be their choice of dispute resolution, prior to this. Failing to agree on an appointment of  arbitrator, the parties could write in to any of the arbitration regime such as to the President of PAM or the Director of AIAC for an institutional initiated arbitration to take place.

TERM OF APPOINTMENT

Advantages

  1. Legally enforceable as a high court decision and internationally recognized as Malaysia is a signatory of UNCITRAL 
  2. Minimum court intervention on both the question of law and the question of facts, repealed of s.42 Arbitration Act 2018
  3. Level playing fields.
  4. Private and confidential
  5. Parties had a wide option to agree on the appointment of the arbitrator, the number of tribunals, rules and procedures to be adopted, venue and time for arbitration.
  6. Is a mutual affair via an arbitration agreement.
  7. Relatively faster compared to litigation.
  8. Parties had option to choose technical, non legal representative as counsels.
  9. Granting of interim measures.
  10. Allowed pre and post award interest.
  11. Wide choices to choose from document only to hearing and fast track arbitration.

Disadvantages

  1. Getting more costlier due to engagement of lawyers, expert witness and others
  2. Depending on the parties and time of the arbitrator, it could consume considerable time.
  3. With the omission of s42, lawyers had no grounds to challenge the arbitration awards on ground of a question of law. 
  4. Maybe abused to set aside adjudication decision as a stay pending arbitration.
Scroll to Top