MALAYSIA Law and Practice Contributed by: Rabindra S. Nathan, Rodney Gomez, K. Shanti Mogan and Alexius Lee, Shearn Delamore & Co
tor by the High Court in this manner is final and non- appealable. Apart from the aforesaid procedure, the High Court does not have any power under the AA 2005 to inter - vene in the selection of arbitrators in any other man - ner. 4.4 Challenge and Removal of Arbitrators Grounds for Challenge of Arbitrators An arbitrator may be challenged in two situations: • if the circumstances give rise to justifiable doubts as to their impartiality or independence; or • if they do not possess the qualifications agreed by the parties (see Section 14 AA 2005). Challenge Procedure Under the default procedure governing the challenge or removal of arbitrators, any party who intends to challenge the appointment of an arbitrator must send a written statement of the reasons for the challenge to the arbitral tribunal, within 15 days of becoming aware of the constitution of the arbitral tribunal or of any of the reasons referred to above (see Section 15 AA 2005). In ZMSB v PSB [2025] 1 MLJ 120, the Court of Appeal held that the timeframe to challenge the appointment of an arbitrator set out above must be complied with; a party cannot reserve its right to chal - lenge the appointment until after the award has been delivered at the conclusion of the arbitration. Unless the challenged arbitrator withdraws from office or the other party agrees to the challenge, the arbi - tral tribunal shall decide on the challenge. Where the challenge is not successful, the challenging party may apply to the High Court to decide on the challenge, within 30 days of receiving notice of the decision rejecting the challenge. The High Court’s decision on the matter is final and non-appealable. 4.5 Arbitrator Requirements A person who is approached in connection with a pos - sible appointment as arbitrator is required to disclose any circumstances that are likely to give rise to justifi - able doubts as to their impartiality or independence under the AA 2005 without delay (see Section 14 (2) AA 2005).
In the case of Persatuan Kanak - Kanak Spastik Sel- angor and Wilayah Persekutuan v Low Koh Hwa and another appeal [2023] 1 CLJ 536, the Court of Appeal found that, although the arbitrator did not make the declaration promptly as required by Section 14 of the Arbitration Act (AA), the crucial information regard - ing his relationship with a witness was disclosed. This disclosure was enough to raise concerns about his impartiality or independence. The party’s decision not to object to the arbitrator’s continued appointment after this disclosure indicates confidence in the arbitrator’s impartiality. The disclo - sure averted a breach of public policy. The principle of competence-competence is applica - ble in Malaysia following the enactment of Section 18 (1) of the AA 2005 – ie, an arbitral tribunal can rule on a party’s challenge to the tribunal’s own jurisdiction. This was affirmed in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417. In discussing Section 18 of the AA 2005, the case of Tumpuan Megah Development Sdn Bhd v ING Bank NV and Another [2024] 3 CLJ 18 held that, while an arbitral tribunal may decide on its jurisdiction under the principle of competence-competence, its decision is not final and can be challenged in the court of the seat of arbitration or the enforcement court. 5.2 Circumstances for Court Intervention 5. Jurisdiction 5.1 Challenges to Jurisdiction Pursuant to Section 18 (7) AA 2005, the arbitral tribu - nal may rule on a plea that it does not have jurisdiction or is exceeding the scope of its authority either as a preliminary question or in an award on the merits. Positive Rulings on Jurisdiction Where the arbitral tribunal rules on such a plea as a preliminary question that it has jurisdiction, any party may appeal to the High Court within 30 days of receiv - ing a notice of that ruling (see Section 18 (8) AA 2005). A decision of the High Court thereon is final and non- appealable (see Section 18 (10) AA 2005).
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