Courts should minimally intervene in arbitration awards unless the jurisdiction is exceeded or procedural fairness is compromised, maintaining the principles of party autonomy.

[1] The subject matter of this appeal is an arbitration award which was challenged by the present respondent, Perwira Bintang Holdings Sdn Bhd, in the High Court on the basis of s 37(1)(a)(iv), 37(2)(b) and 37(3) of the Arbitration Act 2005 ("the Act") to set aside identified paragraphs in the Final Award dated 24 October 2012 ("the Award"). Altogether, the application under s 37 of the Act was to set aside ten paragraphs in the Award. These paragraphs are paras 117, 118, 120, 121, 122, 123, 124, 125, 139 and 140. As a further and alternative prayer, Perwira Bintang Holdings Sdn Bhd also applied to set aside or vary in part, or in whole, the Award under s 42 of the Act.

[2] The arbitration concerned a domestic arbitration in relation to a claim for "extra over" payment for piling work through "hard rock" in a design-and-build construction contract where Perwira Bintang Holdings was the main contractor, and the Government of Malaysia the owner/employer.

[3] Perwira Bintang Holdings Sdn Bhd was the claimant in the arbitration proceeding, and the plaintiff in the High Court action to set aside or vary the Award. Hence, the present appellant, the Government of Malaysia, was the respondent in the arbitration and the defendant in the High Court action.

[4] The sole arbitrator in fact found for the present respondent on the issue of liability, but dismissed its claim since it had not proven the quantum of damages.

[5] For clarity, we will refer to the parties by name, namely the Government of Malaysia ("Government") as the appellant and Perwira Bintang Holdings Sdn Bhd ("Perwira Bintang") as the respondent in this appeal. The respective positions of the parties are thus as follows:

Perwira Bintang: claimant (in the arbitration)/plaintiff/respondent

Government: respondent (in the arbitration)/defendant/appellant

B. Decision Of The High Court

[6] The High Court, for reasons to be stated later in this judgment, allowed Perwira Bintang's application and struck out the earlier mentioned paragraphs under s 37 and two other paragraphs (paras 152 and 153) under s 42 of the Act. Being dissatisfied with the High Court's decision, the Government brings this appeal. The Memorandum of Appeal rests on the basic grounds that the learned High Court Judge had erred as a whole, in law and on the facts, in allowing Perwira Bintang's application under s 37 and s 42 of the Act. More specifically, the learned judge is said to have erred in law and in fact when setting aside paras 117, 118, 120 to 125, 139 and 140 of the Award when deciding to vary para 152 of the Award to allow Perwira Bintang's claim for RM3,300,727.00, and when deciding to vary para 153 of the Award (which related to costs of the arbitration).

[7] It will be seen, therefore, that the application under s 37 was to set aside part of the Award, whereas the application under s 42 was to vary two paragraphs of the Award.

C. The Section 37 Argument

[8] Under the s 37 application, the argument centred on s 37(1)(a)(iv) on the basis that the arbitrator had decided on an award which dealt with a "dispute not contemplated by or not falling within the terms of the submission to arbitration." This is clearly a "jurisdiction" argument. Perwira Bintang also argued on the basis of s 37(2)(b), a procedural point on a breach of the rules of natural justice, and a point, as we understand it, which flowed from the basic jurisdiction point. The third ground under s 37 related to s 37(3), which is another procedural issue to allow the separation of the