An arbitrator must decide disputes within the agreed terms of arbitration, and challenges based on merits are impermissible under the Arbitration Act.

Introduction

[1] These appeals are against the High Court's enforcement of an arbitration award in respect of a dispute that arose from a shareholder agreement as well as the High Court's refusal to set aside the arbitration award.

[2] The parties will hereinafter be addressed as TG & Others and PGS respectively.

Background

[3] TG & Ors and PGS are shareholders of the company Tune Talk Sdn Bhd ("Company") by virtue of a shareholder agreement dated 23 December 2008 ("Agreement"). The Agreement contained an arbitration clause that reads as follows:

"16.1 If any controversy, claim or dispute arises out of or in relation to this Agreement (including any question regarding its existence, validity or termination) or with respect to any breach thereof, the Parties shall seek to resolve the matter amicably through discussions between the Parties or by way of mediation. Only if the Parties fail to or compromise within sixty (60) days from the date of written notice of dispute, the aggrieved Party shall seek arbitration as set forth in this cl 16.

16.2 Any such controversy, claim or dispute shall be finally settled by arbitration by the Regional Centre for Arbitration Kuala Lumpur ("RCAKL") in accordance with the UNCITRAL Rules.

16.3 The number of arbitrators shall be one (1), to be mutually agreed upon by the parties, failing which the arbitrator shall be appointed by the Director of the RCAKL.

16.4 All arbitration proceedings shall take place at the RCAKL, in accordance with the Rules of the RCAKL and the language to be used in the arbitral proceedings shall be English. The decision of the arbitrators is final and is binding on the Parties and the Parties agree to exclude any right of application or appeal to any courts of competent jurisdiction in connection with any question of low arising in the course of the arbitration or in respect of any award made."

[4] There was subsequently a dispute that arose between the parties on the alleged sale of 850,934 shares in the Company by TG & Others to PGS.

[5] The dispute was referred to arbitration in accordance with the Agreement.

[6] PGS who is the claimant in the arbitration sought specific performance but was opposed by TG & Others who are the respondents that there was no concluded contract.

[7] After hearing the parties, the arbitrator who was appointed by the Asian International Arbitration Centre by way of a final award dated 24 March 2022 and a Correction to Final Award dated 24 March 2022 (collectively "Award") ruled in favour of PGS.

[8] The dispositive decision in the Award reads as follows:

"i) A declaration that there is a concluded contract for the Claimant to purchase from the Respondents 850,934 shares in Tune Talk Sdn Bhd at RM3.00 per share as follows:

a) Tune Group Sdn Bhd: 666,563 units of TTSB shares for RM1,999,689.00;

b) Kalimullah Masheeral Hassan: 83,568 units of TTSB shares for RM250,704.00;

c) Lim Kian Onn: 83,568 units of TTSB shares for RM250,704.00; and

d) Christopher Mark Anthony Lankester: 17,235 units of TTSB shares for RM51,705.00.

ii) Specific performance of the contract between the Claimant and the Respondents as set out in (i) above in that the Respondents are to transfer the requisite number of shares as set out above to the Claimant and that the Claimant is required to furnish payment for the same, such acts to take place within 15 days from 8 March 2022 (the date of the publication of the award) to the Respondents or such other date as may be mutually agreed or as ordered by the High Court of Malaya in the event an application is made pursuant to s 38(1) of the Arbitration Act 2005 .

iii) Costs to the Claima