MALAYSIA Law and Practice Contributed by: Rabindra S. Nathan, Rodney Gomez, K. Shanti Mogan and Alexius Lee, Shearn Delamore & Co
for security for costs in the High Court instead of the arbitral tribunal. This was opposed by the respond - ent, who argued that the application should have been made to the arbitral tribunal instead. The High Court held that in the absence of a prior agreement between the parties to exclude the arbitral tribunal’s jurisdiction to grant interim measures pursuant to Sec - tion 19 of the AA 2005, the parties must resort to the arbitral tribunal first to grant such interim measures notwithstanding the court’s parallel jurisdiction. The only exceptions which may justify bypassing the arbi - tral tribunal’s jurisdiction in granting interim relief are where (i) the interim measure is sought against a third party over whom the arbitral tribunal has no jurisdic - tion; (ii) the issue in question is very urgent; (iii) where the High Court’s coercive powers of enforcement are needed; or (iv) where the arbitral tribunal has not been constituted. Emergency Arbitrators The AA 2005 recognises the use of emergency arbitra - tors. The definition of “arbitral tribunal” under the AA 2005 includes an emergency arbitrator. Emergency arbitrators are prescribed the same pow - ers as the arbitral tribunal. Accordingly, pursuant to Section 19H of the AA 2005, decisions of emergency arbitrators are recognised as binding, and can be enforced upon application to the court, irrespective of the country in which they are issued (see CRCC Malaysia Bhd v DSG Projects Malaysia Sdn Bhd [2023] 9 MLJ 713). The AIAC Arbitration Rules provide additional powers to emergency arbitrators; virtual or documents-only emergency arbitration proceedings are permitted, as are ex parte proceedings. Emergency arbitrators are permitted to rule on their own jurisdiction. The Malaysian courts do not have the power to inter - vene in arbitration proceedings once an emergency arbitrator – who has the same powers as any arbitrator under the AA 2005 – has been appointed (see Sec - tion 19J(3) AA 2005), except in situations specifically provided by the AA 2005, such as determination of an appeal against the emergency arbitrator’s ruling of an unsuccessful challenge to the arbitral tribunal.
Interim relief by the courts is permissible both before and after an emergency arbitrator has been appointed. 6.3 Security for Costs Malaysian law confers concurrent jurisdiction on both courts and arbitral tribunals to make an order for secu - rity for costs as an interim measure upon an applica - tion for such. As outlined in 6.2 Role of Courts , an application for security for costs should be first made to the arbitral tribunal ( Malaysia Resources Corpo- ration Bhd v Desaru Peace Holdings Club Sdn Bhd [2023] 4 CLJ 91). The parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the arbi - tration (see Section 21 of the AA 2005). Such proce - dural rules can be ad hoc or institutional. The most commonly adopted institutional rules in Malaysia are the AIAC Arbitration Rules. If parties fail to agree on the procedural rules, the arbi - tral tribunal will become the master of the proceed - ings, upon which it will be empowered to determine matters such as the time and place of proceedings, the time limits for pleadings and written submissions as well as the taking of evidence (see Section 21 (2) AA 2005). 7.2 Procedural Steps Regardless of the applicable procedural rules, the claimant is in law required to submit a statement of claim containing the facts supporting its claim, the points in issue and the relief or remedy sought from the arbitration after the commencement of arbitration and within the period of time agreed by the parties or determined by the arbitral tribunal. The respondent to the arbitration shall then state its defence in respect of the particulars set out by the claimant. 7. Procedure 7.1 Governing Rules Together with the submissions of the parties’ state - ment of claim and defence, the parties may further submit any document they consider relevant or add a reference to the documents or other evidence that they may submit.
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