MALAYSIA Law and Practice Contributed by: Rabindra S. Nathan, Rodney Gomez, K. Shanti Mogan and Alexius Lee, Shearn Delamore & Co
9. Confidentiality 9.1 Extent of Confidentiality
ing the approach to the collection and submission of evidence. In the submission of the statement of claim and the defence, the parties are free to submit with their statements any document that they consider to be relevant, or to add a reference to the documents or other evidence that they may submit. One of the examples of such procedural rules includes the Inter - national Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration. Unless otherwise agreed by the parties, the arbitral tri - bunal retains the power to decide whether to hold oral hearings for the presentation of evidence or oral argu - ments, or to conduct the proceedings on the basis of documents and other materials. However, if there is an application to hold oral hearings at an appropri - ate stage of the proceedings, it is mandatory for the The rules of evidence that apply to arbitral proceed - ings seated in Malaysia would depend on the appli - cable rules of evidence agreed between the parties. Where the parties fail to agree on the applicable rules of evidence, the arbitral tribunal may determine the rules of evidence regarding admissibility, relevance, materiality and weight in such manner as it considers appropriate. It is statutorily stipulated that the Evidence Act 1950 (rules of evidence in courts) does not apply to pro - arbitral tribunal to do so. 8.2 Rules of Evidence With the approval of the arbitral tribunal, the parties are empowered to make an application under Section 29 (2) of the AA 2005 to the High Court for assistance in taking evidence. The High Court has the power to order the attendance of a witness to give evidence or, where applicable, to produce documents on oath or before an officer of the High Court or any other person, including the arbitral tribunal. ceedings before an arbitrator. 8.3 Powers of Compulsion
Section 41A of the AA 2005 provides that no party may publish, disclose or communicate any informa - tion relating to the arbitral proceedings under the arbi - tration agreement or an award made in those arbitral proceedings. This would include all pleadings, evi - dence, documents and the award, which will remain confidential and cannot be disclosed in subsequent proceedings. There are three exceptions to this rule: • where the publication, disclosure or communica - tion is made to protect or pursue a legal right or interest of the party, or to enforce or challenge the award in legal proceedings before a court or other judicial authority; • 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 communica - tion; or • if the publication, disclosure or communication is made to a professional or any other adviser of any of the parties. The confidentiality obligation under Section 41A of the AA 2005 does not, however, extend to non-parties of an arbitration proceeding (see Dato’ Seri Timor Shah Rafiq v Nautilus Tug & Towage Sdn Bhd [2019] 10 MLJ 693).
10. The Award 10.1 Legal Requirements
The arbitral award must be made in writing, be signed by the arbitrator or a majority of all the members of the arbitral tribunal, state its date and seat of arbitra- tion and, unless the parties have agreed otherwise or it is an award pursuant to a settlement, also state the reasons upon which it is based (see Section 33 of the AA 2005). In Telekom Malaysia Berhad v Obnet Sdn Bhd [2024] 6 MLJ 293, the Federal Court held that Section 33 of the AA 2005 excludes the possibility of
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