An arbitration agreement can be formed through incorporation by reference, even if the main document is unsigned, as observed under the Arbitration Act 2005.

[1] In 2002, the appellant called for tenders for the long term supply of coal for its Tanjung Bin Power Project. The tender documentation provided to the respondent included the proforma Coal Purchase Contract, Bid Form, and Form of Bid Bond.

[2] On or about 4 December 2012, the respondent submitted its bid which included:

(i) A duly completed Bid Form to supply coal for 15 years. This form was signed by the respondent's Deputy Managing Director, Mr Pan Wanze;

(ii) A Bid Bond dated 2 December 2002, issued jointly by Standard Chartered Bank Malaysia Bhd and the respondent in the sum of RM500,000; and

(iii) Technical proposals for the supply of the coal.

[3] The joint bid bond submitted by the respondent was signed by one William Randall who was the lawful attorney of the respondent, pursuant to a Power of Attorney issued by the respondent on 26 November 2002 duly notarised in Hong Kong. This Power of Attorney authorised Randall to negotiate a contract on behalf of the respondent to supply coal to the appellant.

[4] The appellant accepted the respondent's bid and issued a letter of acceptance dated 18 November 2003 which included, inter alia, the following terms:

(1) That the terms and conditions of the supply shall be in accordance with the proforma Coal Purchase Contract;

(2) The respondent to provide a bond for the due and proper performance of the contract;

(3) The respondent to appoint a local agent; and

(4) The respondent to acknowledge acceptance of the terms and conditions in the letter of acceptance within fourteen days of the receipt of the letter of acceptance.

[5] By its letter of 18 December 2003 signed by one Zhou Dongzhou, the respondent accepted the terms of the award and at the same time appointed a company known as Fasa Galian Sdn Bhd, represented by its attorney William Randall and one PC Yong, as its local agent. After accepting the award of the contract, the respondent caused Standard Chartered Bank to furnish a pre-commencement bond dated 15 March 2004 for the amount of RM1 million in favour of the appellant. Standard Chartered Bank confirms on the face of this bond that it was issued "on behalf of and at the request of our client, China National Coal Group Corp", ie the respondent. This pre-commencement bond was extended twice by the respondent. Both extensions included reference to the extensions having been effected at the request of the respondent.

[6] According to the appellant, in breach of its obligations, the respondent then failed to supply the coal that it had promised the appellant for the said project citing changes in the policy of the Government of China. The appellant's response was to serve a notice of arbitration on the respondent on 13 August 2009. This caused the respondent to apply by way of Originating Summons to the High Court in Shah Alam OS No 24-281-2010 ('the first OS') for a declaration that no 'arbitration agreement' existed between the parties. It also applied and obtained an ex parte injunction order before YA Dato' Zaleha Yusof restraining the appellant from proceeding with the arbitration proceedings.

[7] The ex parte order was then confirmed inter partes after arguments before YA Dato' Zaleha binti Yusof on 29 July 2010. While the appellant's appeal to the Court of Appeal against the injunction order was pending, the first OS was struck off when the respondent failed to comply with an order for security for costs. Following the dismissal of the first OS, the arbitral tribunal was fully constituted on 12 July 2011. The respondent then filed a virtually identical originating summons in the High Court of Shah Alam on 27 July 2011 (OS 24-1925-2011- "the second OS") seeking similar orders as in its previous action and also an injunction application (encl 3) to once again injunct the arbitration proceedings. The appellant on the other hand filed a stay application (encl 13) under s 10 of the