Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 MarsdenLR 1284

FEDERAL COURT PUTRAJAYA
AJWA FOR FOOD INDUSTRIES CO (MIGOP) EGYPT – Appellant
Versus
PACIFIC INTER-LINK SDN BHD – Respondent
[Civil Appeals No: 02-03-01/2012 (W) & 02-02-01/2012 (W)]

Petitioner Advocates:Elaine Yap,Eddie Chuah ,Respondent Advocate: Arun Krishnalingam,Mathew Kurien

An arbitration agreement may be established by reference to a document containing an arbitration clause without the need for signatures, provided the agreement meets writing requirements per the Arbitration Act 2005.

Headnote:(A) Arbitration Act 2005 - Sections 9(3), 9(4), and 9(5) - Jurisdiction of arbitral tribunal - Written agreement and incorporation of arbitration clauses - The court affirms that an arbitration agreement can be constituted by reference to a document containing an arbitration clause, fulfilling writing requirements without the need for signatures (Paras 15-28).

(B) Arbitration proceedings - Validity of agreements without signatures - Court rules that the absence of signatures does not invalidate the agreement if the terms are otherwise established (Paras 22-25).

(C) Conduct of parties - The historical dealings between parties can serve as evidence of acceptance of arbitration procedures implicating knowledge of terms (Paras 23-27).

Facts of the case:
The appellant contested the jurisdiction of the PORAM arbitral tribunal, arguing no valid arbitration agreement existed due to the lack of a signed document, despite past commercial dealings underpinning the transactions. The tribunal ruled it had jurisdiction and awarded damages, which the High Court upheld.

Findings of Court:
The tribunal's ruling on jurisdiction was affirmed, confirming the existence of an implied arbitration agreement based on previous conduct and the contents of sales contracts referencing standard terms and conditions.

Issues: Whether a reference to a document containing an arbitration clause constitutes a valid arbitration agreement under the Act and the necessity of such documents being signed.

Ratio Decidendi: The court concludes that sufficient evidence supports the incorporation of arbitration clauses into the sales contracts and that the lack of a requirement for signatures does not negate the binding nature of agreements.

Result: Appeals dismissed with costs awarded to the respondent.

Table of Content
1. agreements to arbitrate are binding. (Para 1 , 2)
2. background facts of the dispute. (Para 3)

[1] There are two appeals before this court. They are in respect of two related appeals by the appellant against the decision of the court of Appeal in dismissing the appellant's appeal against the decision of the High court based on common issues. Before us the parties have agreed to refer to the Records of Appeal filed under Civil Appeal No: 02-03-01/2012(W) and our decision in Civil Appeal No: 02-03-01/2012(W) will bind the parties in respect of the other Civil Appeal No: 02-02-01/2012(W).

[2] Leave to appeal was granted by this court in respect of both appeals and the questions of law framed for determination are as follows:

Question 1

Whether for the purpose of s 9(5) of the Arbitration Act 2005 , the agreement in writing where a reference is said to be made to a document containing an arbitration clause must satisfy the conditions of an agreement in writing as set out in s 9(4) of the .

Question 2

Whether an arbitration agreement in writing in respect of specific transactions, can be constituted by reference in an agreement to a document containing an arbitration clause pursuant to s 9(5) of the Arbitration Act 2005 , where:

(i) the document containing an arbitration agreement is not attached to the purported agreement or otherwise published; and/or

(ii) notice of the document containing an arbitration clause is purportedly founded on past conduct of the parties in referring to arbitration disputes arising out of unrelated transactions.

Background Facts

[3] The relevant background facts of the case may be summarised as follows:

(1) The respondent had initiated the two arbitration proceedings against the appellant alleging that the appellant had failed to take delivery of palm oil products which the appellant had ordered from the respondent pursuant to written contracts which contained arbitration clauses.

(2) Before the High court the appellant filed two separate applications to set aside or vary two arbitration awards dated 13 April 2010 made by tribunals constituted under the Palm Oil Refiners Association of Malaysia ("PORAM") Rules of Arbitration and Appeal. The said PORAM awards are:

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2013 MarsdenLR 1284

FEDERAL COURT PUTRAJAYAAJWA FOR FOOD INDUSTRIES CO (MIGOP) EGYPT – AppellantVersusPACIFIC INTER-LINK SDN BHD – Respondent[Civil Appeals No: 02-03-01/2012 (W) & 02-02-01/2012 (W)]

An arbitration agreement may be established by reference to a document containing an arbitration clause without the need for signatures, provided the agreement meets writing requirements per the Arbitration Act 2005.

FEDERAL COURT PUTRAJAYA
AJWA FOR FOOD INDUSTRIES CO (MIGOP) EGYPT – Appellant
Versus
PACIFIC INTER-LINK SDN BHD – Respondent
[Civil Appeals No: 02-03-01/2012 (W) & 02-02-01/2012 (W)]