MALAYSIA Law and Practice Contributed by: Rabindra S. Nathan, Rodney Gomez, K. Shanti Mogan and Alexius Lee, Shearn Delamore & Co
The arbitral tribunal will then decide whether to hold oral hearings for the presentation of evidence or oral arguments, or to conduct the proceedings on the basis of documents and other materials. If any party applies for the arbitral tribunal to hold oral hearings at an appropriate stage of the proceedings, it is manda - tory for the arbitral tribunal to hold such oral hearings (see Section 26 of the AA 2005). 7.3 Powers and Duties of Arbitrators Powers of Arbitrators In Malaysia, arbitrators are granted the following pow - ers: • to rule on their own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement; • to order interim measures as described in 6.1 Types of Relief ; • to conduct the arbitration in such manner as they consider appropriate if no procedure is agreed upon by the parties (as described in 7.1 Governing Rules ), which includes the powers to: (a) determine the admissibility, relevance, materi - ality and weight of any evidence; (b) draw on their own knowledge and expertise; (c) order the provision of further particulars in a statement of claim or statement of defence; (d) order the provision of security for costs; (e) fix and amend the time limits within which vari - ous steps in the arbitral proceedings must be completed; (f) order the discovery and production of docu - ments or materials within the possession or power of a party; (g) order the interrogatories to be answered; (h) order that any evidence be given on oath or affirmation; and (i) make any such orders as the arbitral tribunal considers appropriate (see Section 21 (3) AA 2005); • to determine the seat of arbitration, the language to be used in arbitration proceedings and the timeline to submit pleadings, submissions, etc, where the parties fail to agree on these points; and • to appoint one or more experts to report on specific issues to be determined by the arbitral tribunal, and to require a party to give the expert
any relevant information or to produce or provide access to any relevant documents, goods or other property for the expert’s inspection. Duties of Arbitrators When a potential arbitrator is approached in connec - tion with his or her possible appointment as an arbi - trator, that person has a duty to disclose any circum - stances that are likely to give rise to justifiable doubts as to his or her impartiality or independence. Once the person is appointed as an arbitrator, he or she has a duty to treat the parties with equality, and to give the parties a fair and reasonable opportunity to present their case. The arbitrator is also under a duty to act in good faith at all times of the arbitration. In making an award, arbitrators are also duty-bound to state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given, or if the award is on agreed terms pursuant to a settlement. 7.4 Legal Representatives Generally, parties to arbitral proceedings are permit - ted to be represented in arbitral proceedings by any representative appointed by the party. Section 37A of the Legal Profession Act 1976 provides that the restrictions on non-Malaysian qualified lawyers from practising in Malaysia shall not apply to any person representing any party in arbitral proceedings. However, it must be noted that the above principle is only applicable to arbitrations taking place in West Malaysia. In respect of arbitration proceedings in East Malaysia (Sabah & Sarawak), Sabah and Sarawak advocates are conferred exclusive right to practise in East Malaysia, and such exclusivity includes repre - sentation in arbitration proceedings (see Samsuri bin Baharuddin & Ors v Mohamed Azahari bin Matiasin and another appeal [2017] 2 MLJ 141 (Malaysian Fed - eral Court)). 8. Evidence 8.1 Collection and Submission of Evidence In arbitration, the parties are free to agree on the pro - cedure to be followed by the arbitral tribunal, includ -
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