MALAYSIA Law and Practice Contributed by: Rabindra S. Nathan, Rodney Gomez, K. Shanti Mogan and Alexius Lee, Shearn Delamore & Co
standalone agreement or in a reference to another agreement that contains an arbitration clause (see Section 9 (2) of the AA 2005). 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 is contrary to public policy or the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia (see Section 4 of the AA 2005). The fact that any written law confers jurisdiction in respect of a matter on any court of law but does not refer to the determination of that matter by arbitration Inter - Link Sdn Bhd [2013] 5 MLJ 625). No Specific Words or Form Required
does not indicate that a dispute about that matter is incapable of determination by arbitration. Public Policy There is no universally accepted test on what public policy is; different courts and different tribunals may have different views as to the enforceability of con - tracts on the ground of public policy (see the Malay - sian Federal Court judgment in Arch Reinsurance Ltd v Akay Holdings Sdn Bhd [2019] 1 CLJ 305). The AA 2005 does not identify any specific subject matter that cannot be referred to arbitration. Matters that may have public interest elements have been identified as being non-arbitrable in the Court of Appeal case of Peninsula Education ( Setia Alam ) Sdn Bhd ( previously known as Segi International Learning Alliance Sdn Bhd ) v Biaxis ( M ) Sdn Bhd ( in liquidation ) [2024] 5 MLJ 388, such as: • the grant of a dissolution of marriage; • orders with respect to adoption; • judicial review matters involving certiorari and mandamus; • contempt of court; • registration and expunging of patent and other intellectual property rights; • order for sale under the National Land Code; • issues arising out of liquidation; and • judicial management or receivership under the Companies Act 2016. In Arch Reinsurance Ltd v Akay Holdings Sdn Bhd [2019] 1 CLJ 305, the Malaysian Federal Court held that the provisions of the National Land Code setting out the rights and remedies of parties under statu - tory charge over land are exhaustive and exclusive, and any attempt to contract out of these rights is void as being contrary to public policy; hence a dispute triggered by a statutory notice of demand under the National Land Code is not arbitrable under the AA 2005. Based on this decision, the Malaysian courts have taken the position that, where there are statutory provisions that exhaustively set out procedures involv - ing the rights and remedies of parties, that subject matter will most likely not be arbitrable.
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