MALAYSIA Law and Practice Contributed by: Rabindra S. Nathan, Rodney Gomez, K. Shanti Mogan and Alexius Lee, Shearn Delamore & Co
be given on oath or affirmation (see Section 21 of the AA 2005). 2.2 Changes to National Law The biggest recent development in Malaysian arbi - tration was the Arbitration (Amendment) Act 2024 proposing amendments to the AA 2005, which was gazetted on 1 November 2024. The amendments will come into force on a date to be determined. The 2024 Amendments provide the following notable changes: • A default provision has been introduced, where the law applicable to the arbitration agreement shall be the law of the seat of the arbitration in the absence of an agreement by the parties (Section 5 of the Arbitration (Amendment) Act 2024). • Digital and electronic signatures on arbitral awards are now expressly recognised (Section 8 of the Arbitration (Amendment) Act 2024). • An arbitration award shall now be recognised as binding without requiring an application to be made for its recognition (Section 9 of the Arbitra - tion (Amendment) Act 2024). • The common law against maintenance and cham - perty shall cease to apply in relation to third-party funding and shall not be treated as contrary to public policy (Section 10 of the Arbitration (Amend - ment) Act 2024). • A code of practice has been introduced, setting out the practices and standards relating to third-party funding in which third-party funders are expected to comply and disclosure requirements (Section 10 of the Arbitration (Amendment) Act 2024). • The term “Director of the Asian International Arbi - tration Centre (Malaysia)” has been substitied with the term “President” (which refers to the President of the Asian International Arbitration Centre Court of Arbitration (Sections 2 and 6 of the Arbitration (Amendment) Act 2024).
putes which have arisen or may arise between them in respect of a defined legal relationship, whether con - tractual or not (see Section 9 of the AA 2005). Forms of Arbitration Agreement An arbitration agreement may be in the form of an arbitration clause contained in an agreement, in a standalone agreement or in a reference to another agreement that contains an arbitration clause. Arbitration Agreement Must Be in Writing The arbitration agreement must be in writing (see Sec - tion 9 (3) of the AA 2005). This requirement of a written agreement may be met if its content is recorded in any form, including situations where the initial arbitra - tion agreement or contract has been concluded orally, by conduct, or by other means (see Section 9 (4) of the AA 2005). The requirement can also be met if the existence of an agreement is alleged by one party and not denied by the other in an exchange of statement of claim and defence. An arbitration agreement is deemed to be in writing if it is evidenced by any electronic communication that the parties make by means of a data message, if the information contained therein is accessible so as to be usable for future reference (see Section 9 (4A) of the AA 2005). The signature of the parties is not a prereq - uisite to an arbitration agreement being enforced (see Ajwa for Food Industries Co (MIGOP), Egypt v Pacific No specific words or form are required to be used to constitute an arbitration clause or an arbitration agreement; an electronic transmission referring to or implying the parties’ intention to submit to arbi - tration suffices, as long as there is an agreement to refer disputes to arbitration and the parties’ intention to arbitrate is clear and unequivocal (see the Malay - sian Court of Appeal’s decision in Albilt Resources Sdn Bhd v Casaria Construction Sdn Bhd [2010] 3 MLJ 656). 3.2 Arbitrability Any dispute the parties have agreed to submit to arbi - tration under an arbitration agreement may be deter - mined by arbitration, unless the arbitration agreement Inter-Link Sdn Bhd [2013] 5 MLJ 625). No Specific Words or Form Required
3. The Arbitration Agreement 3.1 Enforceability
An arbitration agreement must be an agreement by the parties to submit to arbitration all or certain dis -
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