MALAYSIA Law and Practice Contributed by: Dhinesh Bhaskaran, Rabindra Nathan, Shanti Mogan and Lai Wai Fong, Shearn Delamore & Co
When a suit is filed, the court will usually raise the possibility of mediation with the parties dur- ing case managements. If parties agree, the mediation can be conducted either by the court or by an external mediator privately arranged by the parties. 12.3 ADR Institutions The main arbitral institution in Malaysia is the Asian International Arbitration Centre (AIAC), which was formerly known as the Kuala Lumpur Regional Centre for Arbitration (KLRCA). AIAC has a framework for arbitration, adjudication and mediation proceedings, including an internation- al panel of arbitrators, adjudicators and media- tors and rules to cater for these proceedings. The Malaysian Mediation Centre, established by the Bar Council of Malaysia, offers mediation services and has a panel of mediators. 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration The principal legislation that applies to both domestic and international arbitrations is the Arbitration Act 2005, which is based on the UNCITRAL Model Law on International Commer- cial Arbitration. Order 69 of the Rules of Court 2012 provides the procedural requirements for arbitration-related suits such as the enforcement of arbitral awards. 13.2 Subject Matters Not Referred to Arbitration Any dispute which the parties have agreed to submit to arbitration under an arbitration agree- ment may be determined 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 Malaysian law. See Section 4(1) of the Arbitra- tion Act 2005. 13.3 Circumstances to Challenge an Arbitral Award Pursuant to Section 6 of the Arbitration Act 2005, an award is final and binding and may be set aside only if one of the following circumstances in Section 37 is established: • a party to the arbitration agreement was under an incapacity; • the arbitration agreement is not valid under the law to which the parties have subjected it or under the laws of Malaysia; • the applicant was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party’s case; • the award deals with a dispute not contem- plated by or not falling within the terms of the submission to arbitration; • the award contains decisions on matters beyond the scope of the submission to arbi- tration; • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or was not in accordance with the Act; or • the award is in conflict with the public policy of Malaysia. 13.4 Procedure for Enforcing Domestic and Foreign Arbitration An award may be enforced by applying to the High Court under Section 38 of the Arbitration Act 2005. Under Order 69 Rule 8 of the Rules of Court 2012, the application shall be made by an originating summons accompanied by an affi- davit showing the written evidence which will be relied on, including the original arbitration agree-
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