MALAYSIA Law and Practice Contributed by: Rabindra S. Nathan, Rodney Gomez, K. Shanti Mogan and Alexius Lee, Shearn Delamore & Co
5.4 Standard of Judicial Review for Jurisdiction/Admissibility
On the other hand, if the arbitral tribunal decides to address such plea at the award stage, the parties may apply to the High Court under Section 37 of the AA 2005 to set aside such award made by the arbitral tribunal. The courts generally show a reluctance to intervene in issues regarding the jurisdiction of an arbitral tribunal. In Capping Corp Ltd and Others v Aquawalk Sdn Bhd and Others [2013] 6 MLJ 579, the Malaysian Court of Appeal held that under the AA 2005 the courts are obliged to take a minimal interference approach, and such approach is reflected in Section 18 of the AA 2005, where the arbitral tribunal is empowered to rule on its own jurisdiction. Negative Rulings on Jurisdiction The AA 2005 provides for an appeal against an arbitral ruling that it has jurisdiction. The converse (ie, a nega - tive ruling on jurisdiction) is not referenced as a ground for appeal under Section 18 (8). In PT Asuransi Jasa Indonesia ( Persero ) v Dexia Bank SA [2007] 1 SLR(R) 597, the Singapore Court of Appeal accepted that, pursuant to Article 16 (3) of the UNCI - TRAL Model Law, a negative jurisdictional ruling by a tribunal is intended to be a final and binding decision between the parties, and is not appealable. While the Singapore International Arbitration Act was amended in 2012 to allow appeals to the High Court on a nega - tive jurisdictional ruling, no such amendment has been made to the AA 2005. 5.3 Timing of Challenge Pursuant to Section 18 (8) of the AA 2005, if the arbi - tral tribunal rules on a plea as a preliminary question that it has jurisdiction, parties have the right to go to court to challenge the jurisdiction of the arbitral tribu - nal within 30 days of receiving a notice of the arbitral tribunal’s ruling on the issue. If the arbitral tribunal determines such plea in an award on the merits, the parties may, within 90 days from the date of receipt of the award, make an application to the High Court to set aside such award (see Section 37 (4) AA 2005).
In Malaysia, the standard of review by the courts on questions of arbitral jurisdiction is generally de novo. In Usahasama SPNB - LTAT Sdn Bhd v ABI Construc- tion Sdn Bhd [2016] 7 CLJ 275, the High Court held that an appeal under Section 18 (8) of the AA 2005 involves a full rehearing of all issues afresh and unin - fluenced by the prior decision of the arbitrator(s). 5.5 Breach of Arbitration Agreement When there are court proceedings brought in breach of an arbitration agreement, it is mandatory for the Malaysian courts to stay such proceedings in favour of arbitration, unless it is found that the agreement is null and void, inoperative or incapable of being performed The arbitral tribunal cannot assume jurisdiction over individuals or entities that are neither party to an arbi - tration agreement nor signatories to the contract con - taining the arbitration agreement. The AA 2005 does not apply to non-parties to an arbitration agreement (see the Malaysian Federal Court decision in Jaya Sudhir a / l Jayaram v Nautical Supreme Sdn Bhd and Others [2019] 5 MLJ 1). (see 3.3 National Courts’ Approach ). 5.6 Jurisdiction Over Third Parties Pursuant to Section 19 of the AA 2005, unless oth - erwise agreed by the parties, an arbitral tribunal is permitted to grant the following interim reliefs: • to order a party to maintain or restore the status quo pending determination of the dispute; • to take action that would prevent current or immi - nent harm or prejudice to the arbitral process itself, or to refrain from taking action that is likely to cause such harm or prejudice; • to provide a means of preserving assets out of which a subsequent award may be satisfied; • to preserve evidence that may be relevant and material to the resolution of the dispute; or • to provide security for the costs of the dispute. 6. Preliminary and Interim Relief 6.1 Types of Relief
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