The supervisory court for arbitration awards is the court of the seat of arbitration, which determines jurisdiction over applications to set aside the awards.

[1] The application in encl 11 is the application of the defendant to strike out the originating summons of the plaintiff under O 18 r 19(1)(a) and (3) and/or O 92 r 4 of the Rules of 2012.

Originating Summons Of Plaintiff

[2] The application of the plaintiff in this originating summons is under s 37(1)(a)(v) and/or 37(2)(b) of the Arbitration Act 2005 . It is an application to set aside in whole or in part an arbitration award that was made in favour of the defendant. The plaintiff has also in the alternative prayed under s 42 of for questions of law arising out of the said award to be determined by this Court.

Grounds Of The Application For Striking Out

[3] The application of the defendant in encl 11 to strike out the originating summons of the plaintiff is based on the main ground that the High Court of Malaya sitting in Kuala Lumpur is the supervisory Court in respect of the arbitration proceeding in question. The defendant deposed that the plaintiff had agreed for the arbitration to be presided by a Kuala Lumpur based arbitrator. The arbitration proceedings were wholly conducted at the Kuala Lumpur Regional Centre for Arbitration.

Background Facts To The Claim

[4] The plaintiff had appointed the defendant as its main contractor for 4- storey technology and commercial centre which is known as the ITTC project in the Penampang District of Sabah. The contract price was RM236,154,640.12. Disputes arose between the parties. On 31 October 2013, the plaintiff issued the Notice of Arbitration. On 16 June 2014, Ir Boon Che Wee was appointed as the arbitrator by the Malaysian Institute of Architects (PAM).

[5] At the arbitral proceedings held in Kuala Lumpur which lasted 27 days, 11 witnesses gave evidence. The arbitrator published his award on 12 October 2017. The arbitrator dismissed the claim of the plaintiff and allowed the counterclaim of the defendant in the sum of RM23,432,463.54. The plaintiff did not comply with the award.

[6] It must also be mentioned that the defendant had also sued the plaintiff in Kota Kinabalu Suit No BKI-22NCVC-42/5-2014 for the principal sum of RM44,187,526.87. But the said suit was stayed on 28 August 2014 by the High Court pending the arbitral proceedings in question.

[7] The defendant took enforcement proceedings in the Kuala Lumpur High Court via OS No WA-24C(ARB)-48-11/2017 on 8 November 2017 in respect of the arbitration award. The plaintiff filed the instant action in the Kota Kinabalu High Court to set aside the award on 10 November 2017.

Arguments Of The Defendant To Strike Out The Originating Summons

[8] The defendant's application to strike out the originating summons of the plaintiff is based on the argument that the Kuala Lumpur High Court is the supervisory Court in respect of the subject matter of the action and therefore this Court has no jurisdiction.