[End. 5 and End. 31]

On 25.4.2008 I granted an ex parte injunction order applied by the plaintiff on an urgency certificate [End.5] to restrain the defendant from initiating, proceeding or continuing any arbitration proceeding against the plaintiff in respect of or for the sum of RM3,337,029 or any other sum or debt alleged to be due to the defendant from the plaintiff in respect of letter of award dated 4.5.2005, the purchase order dated 14.7.2005 and purchase order dated 22.7.2005 issued by the plaintiff/POSCON/Special Triump JV to the defendant and I ordered that the inter parte hearing be held on 12.5.2008. However due to circumstances beyond the control of the parties and at times with the consent of the parties the inter parte hearing had been 5 adjourned several times. Finally on 25.9.2008 the inter parte hearing was heard. This is the ruling on that inter parte hearing.

In the affidavit affirmed by Ian Graham Stadler on 21.4.2008 filed by the plaintiff in support of the ex parte injunction application, the plaintiff averred that the defendant's claim of a contract between the plaintiff and the defendant is without merits and unjustified. The plaintiff on the other hand had averred that the contract was between the defendant and a joint venture formed by the plaintiff, defendant and one Special Triump Sdn Bhd. Therefore the plaintiff contended that the defendant's claim is frivolous and vexatious and an abuse of process. And that the arbitration proceedings would put the plaintiff to unnecessary loss, damage and inconvenience. The plaintiff also gave the usual undertaking as to damages.

At the inter parte hearing, counsel for the defendant tendered a chart Exhibit A that shows the relationship between the parties relevant to this suit for ease of reference. From the chart in Exhibit A it shows that Assar Chemicals Sdn Bhd awarded a contract ('the project') to Chiyoda Malaysia Sdn Bhd/PPES Works (Sarawak) Sdn Bhd. Up to this point there is no dispute. However the chart shows that Chiyoda Malaysia then awarded the subcontract to a certain party. The plaintiff's contention is that the subcontract was awarded to CMS Energy Sdn Bhd/Poscon Corporation/Special Triumph Sdn Bhd JV. But the defendant's contention is that the subcontract was awarded to the plaintiff alone; there was no JV company as bandied by the plaintiff. The issue as to whom was the subcontract awarded is the contentious issue - hence whether there is or is not JV company formed for the purpose of the subcontract. Looking at the chart Exhibit A, it shows that whoever had the subcontract later further subcontracted the subcontract to the defendant. This is where the divergence in contention of the parties occurs. The plaintiff contended that the sub-sub-contract was between the JV company and the defendant. Whereas the defendant contended the sub-sub-contract was between the defendant and the plaintiff only; the defendant said that the arbitration was based on this sub-sub-contract.

The defendant is a Korean company based in Korea. The defendant contended that the purchase orders purportedly issued by the JV company were in fact issued by the plaintiff to the defendant in Korea. Each of the purchase orders contains an arbitration clause. This fact is not disputed. The defendant is relying on this arbitration clause in commencing the arbitration proceedings.

Perusal of the defendant's brief chronology of event, it shows that the defendant, through the firm of Allen & Overy in Hong Kong had commenced the arbitration proceedings. This is evident by Exhibits IGS-6, IGS-7 and IGS-8. This was before the granting of the ex parte order which was on the 24.5.2008 and before the plaintiff filed their writ of summons and statement of claim which was on 28.4.2008. Then on 30.5.2008 the defendant entered conditional appearance followed by the filing of Summons In Chambers - End. 31 on 15.7.2008 for stay of the present action pending the outcome of the arbitration p