JUDGMENT

Ahmadi Asnawi JC:-

[1] Both the usul pemula and saman pemula indicated above were agreed to be heard together. The two proceedings emanate from an award in an arbitration between the parties handed down by Dr Wong Kim Fatt. The arbitration commenced on 29 March 1995 and the arbitrator's award dated 29 October 2007 was published on 9 November 2007.

[2] Being dissatisfied with the said award, the Majlis Daerah Segamat Utara has referred certain questions of law to this court under s. 42 of the Arbitration Act 2005 (Act 646) (hereinafter referred to as "the 2005 Act") . They commenced to do so by way of originating summons by virtue of s. 50 of the same which provides the mode for making such application to court. Hence the Saman Pemula No. 24 (L)-990-2007.

[3] Segamat Parking Services Sdn Bhd being equally dissatisfied with the said award, also applied under ss. 23 and 24 of the Arbitration Act 1952 (hereinafter referred to as "the 1952 Act") to challenge the said award. The 1952 Act does not prescribe the mode to mount such challenge. Hence they go by way of O. 69 r. 4 of the Rules of the High 1980 ("RHC 1980) to pursue the same. Usul Pemula No. 25-45-2007 is their said application.

[4] The entire arbitral proceedings from its commencement on 29 March 1995 to its conclusion on 9 November 2007 was conducted under the purview of the 1952 Act .

[5] The court was thus requested to rule on a preliminary issue of whether the challenge by the parties to the said award ought to have been made under the 2005 Act which came into force on 15 March 2005 or under the 1952 Act .

[6] For the purposes of this judgment, Segamat Parking Services Sdn Bhd is to be referred to as the applicant and Majlis Daerah Segamat Utara is to be referred to as the respondent.

[7] It was the contention of learned counsel for the applicant that the general rule in the construction of a statute is that in the absence of a contrary intention, an enactment is presumed not to have retrospective effect. The 2005 Act is a new enactment altogether, replacing the old 1952 Act. By virtue of s. 30(1)(d) of the Interpretation Acts 1948 and 1967 , the repeal of a written law in whole or in part shall not affect any such right, privilege, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy maybe instituted, continued or enforced as if the repealing law had not been made. The remedies referred to in the present case are the remedies to challenge the award provided under the 1952 Act and not under the 2005 Act . This is a vested right which cannot be taken away by the 2005 Act . Additionally the savings clause offered by s. 51(2) of the 2005 Act expressly preserved the rights and remedies available to the applicant under the 1952 Act as if the 2005 Act had not been enacted.

[8] For the purpose of determining the issue at hand, in my view the most crucial provision in the 2005 Act is s. 51 . The said section provides:-

51. Repeal and savings

(1) The Arbitration Act 1952 and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985 are repealed.

(2) Where the arbitral proceedings were commenced before the coming into operation of this Act, the law governing the arbitration agreement and the arbitral proceedings shall be the law which would have applied as if this Act had not been enacted.

(3) Nothing in this Act shall affect any proceedings relating to arbitration which have been commenced in any court before the coming into operation of this Act.

[9] The key words in s. 51(2) is "the arbitral proceedings". However this term is not defined anywhere in the 2005 Act . But s. 34(1) of the 2005 Act provides that "the arbitral proceedings shall be terminated by a final award or by an order of the arbitral tribunal in accordance with subsection (2)". Subsection (2) provides as follows:-

(2) The arbitral tribunal shall order the termination of the arbitral proceedings where:-

(a) The claiman