The court upheld that judicial intervention in arbitration is confined to clear cases of injustice arising from the arbitral process.

[1] We heard this appeal on 17 September 2015 and after hearing the respective parties, we reserved our decision to a date to be notified to the parties by the court. We now append our grounds for our decision today. This Grounds of Judgment has been seen by my learned sister YA Rohana Yusuf JCA who has agreed to the same. My learned brother YA Hamid Sultan Abu Backer JCA will deliver a separate judgment. We will refer to parties as they were described in the High court, ie appellant as the plaintiff and the respondent as the defendant.

Facts Germane To Be The Appeal

[2] In dealing with the defendants counterclaim, the Arbitral Tribunal in this case found that the defendant was not entitled to recover any loss or damages arising from the termination of the contract. The Arbitral Tribunal found absence of evidence to support its counterclaim. The Arbitral Tribunal then went on to say that it would proceed to use the factor of inflation set at 20% being a reasonable sum and the Arbitral Tribunal proceeded to find on the following basis. The balance of 30% of the contract price RM260,470.20 add with 20% inflation RM52,094.04 = RM312,564.24.

[3] This issue was not brought up by the parties nor were the parties alerted to it nor invited to address that point and therefore the award in our view contains decisions on matters beyond the scope of the submission to arbitration in breach of s 37(1)(a)(v) and 37(1)(b) of the Arbitration Act 2005 and raises question of law under s 42 of the said Act.

[4] The learned judge dealt fairly exhaustively and methodically with the challenge mounted by the plaintiff in particular relation to s 37 and s 42 of the said Act. Section 34 (art 34(1) of the Model Law) which allows recourse to court against an Arbitral Award may only be made by an application to set aside the same. We agree with the learned judge that s 37(1)(a)(v) would constitute the relevant provision to apply in the light of the challenge being mounted by plaintiff. It is our view that s 37 only allows the court to set aside the award save for the limited exception under s 37(3) of the said Act. As the learned judge exercised her powers to vary the Arbitral Award, the court could only proceed under s 42 of the said Act (see the decision of this court in Kerajaan Malaysia v. Perwira Bintang Holdings Sdn Bhd , 2014 MarsdenLR 2294 ). The learned judge dealt with s 42 of the said Act and the approach of the learned judge was to treat applications under both sections as not being mutually exclusive. We refer to the decision of the New Zealand court of Appeal in Amaltal Corporation Ltd v. Maruha (N3) Corporation Ltd [2004] 2 NZLRG 614 where the court held and we quote:

"Held: 1 The processes under cl 5 of the Second Schedule to the Arbitration Act 1996 (appeals on questions of law) and art 34 of the First Schedule (applications to set aside) were not mutually exclusive. There was no reason why an appeal under cl 5 could not put in issue errors of process by the arbitrator as well as errors of substantive law (both grounds for setting aside under art 34). However, questions of abuse of process or issue estoppel might arise if a party seeks successively to argue the same error of law under both art 34 and cl 5."

We are therefore in agreement with the views of the learned judge expressed on this point.

[5] Turning to s 42 which we