MALAYSIA Law and Practice Contributed by: Rabindra S. Nathan, Rodney Gomez, K. Shanti Mogan and Alexius Lee, Shearn Delamore & Co
(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 time - line to submit pleadings, submissions, etc, where the parties fail to agree on these points. • 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 their possible appointment as an arbitrator, that person has a duty to disclose any circumstances that are likely to give rise to justifiable doubts as to their impartiality or independence. Once the person is appointed as an arbitrator, they have 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 Legal Profession Act 1976 provides that the restric - tions on non-Malaysian qualified lawyers from practis -
ing in Malaysia shall not apply to any person repre - senting 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 and 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 and Others v Mohamed Azahari bin Matia- sin and another appeal [2017] 2 MLJ 141 (Malaysian Federal 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 - 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. arbitral tribunal to do so. 8.2 Rules of Evidence
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