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2025 MarsdenLR 4346
FEDERAL COURT PUTRAJAYA
ASIAN INTERNATIONAL ARBITRATION CENTRE – Appellant
Versus
ONE AMERIN RESIDENCE SDN BHD & ORS AND ANOTHER APPEAL – Respondent
[Civil Appeal Nos: 01(i)-31-12-2023(W) & 02(i)-66-12-2023(W)]
Important Points
Subject
Administrative Law - Judicial Review
Act Referred
International Organizations (Privileges and Immunities) Act 1992: S.First Schedule
Rules of Court 2012: S.O 53 r 3, S.O 12 r 10, S.O 15 r 6, S.O 92 r 4
Arbitration (Amendment) Act 2018: S.3
Construction Industry Payment and Adjudication Regulations 2014
Specific Relief Act 1950: S.54
Headnote
Facts of the case:
The case arises from a judicial review application filed by One Amerin against decisions made by the AIAC in the context of its statutory functions under the CIPAA, questioning the legality of its appointments and fees, ultimately leading to appeals concerning its immunity. (Paras 1, 20)
Findings of Court:
The immunity under IOPIA and CIPAA is applicable and extends to actions taken in good faith as part of its statutory functions. The AIAC is not liable to challenge in court regarding the performance of these statutory functions under CIPAA, including acts leading to judicial review. (Paras 155-179)
Issues: The central issue addressed was whether AIAC's immunity applies to judicial review concerning its functions as a statutory adjudication authority under CIPAA. The court also examined the legislative intent regarding immunity and its scope. (Paras 6, 30)
Ratio Decidendi: The court ruled that legislative provisions under the IOPIA and CIPAA confer immunity on the AIAC regarding judicial review of its statutory functions, emphasizing the need to respect the independence and functionality of the AIAC as an international organization. The jurisdiction is maintained unless acts are proven to be outside the scope of its authority. (Paras 41-155)
Result: Appeals allowed.
| Table of Content |
|---|
| 1. introduction to appeals and parties involved (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. background facts of the adjudication process (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19) |
| 3. judicial review applications and high court's rulings (Para 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 4. submissions by aiac regarding its immunities (Para 41 , 42 , 43 , 44 , 45) |
| 5. counterarguments by one amerin against aiac's claims (Para 49 , 50 , 51 , 52 , 53 , 54) |
| 6. analysis of legal immunity of international organizations (Para 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64) |
| 7. determination of aiac's immunities and actions (Para 104 , 105 , 106 , 107 , 108) |
| 8. conclusion on aiac's immunity from review (Para 154 , 155 , 156) |
Introduction
[1] There are two appeals before us. In the first, the appellant is the Asian International Arbitration Centre ('the AIAC'), formerly known as the Kuala Lumpur Regional Centre for Arbitration ('the KLRCA'). The AIAC is an independent and supranational arbitral institution established in 1978 under the auspices of the Asian-African Legal Consultative Organization ('the AALCO').
[2] The 1st respondent is One Amerin Residence Sdn Bhd ('One Amerin'), and the 3rd respondent is Ragawang Corporation Sdn Bhd ('Ragawang'). One Amerin and Ragawang are both private companies incorporated in Malaysia and were, respectively, the respondent and the claimant in an adjudication claim commenced by Ragawang against One Amerin pursuant to the Construction Industry Payment and Adjudication Act 2012 ('the CIPAA').
[3] The 2nd respondent, Choon Hon Leng, was the adjudicator appointed by the AIAC for the aforesaid adjudication proceedings under s 21(b)(i) of the CIPAA. The 4th and 5th respondents are respectively the Minister of Works and the Minister in the Prime Minister's Department (Law).
[4] In the second appeal, the AIAC is also the appellant, while One Amerin is the sole respondent.
[5] The appeals before us concern the extent of immunity enjoyed by an international organisation in Malaysia. More particularly, these appeals raise the issue of whether the legal immunity conferred on the AIAC in its capacity as an international organisation pursuant to the International Organizations (Privileges and Immunities) Act 1992 ('the IOPIA') applies in judicial review proceedings brought against the AIAC in relation to its domestic and statutory functions under the CIPAA.
[6] These appeals arise from a judicial review application filed in the High Court by One Amerin to challenge certain acts carried out by the AIAC in the performance of its functions as the statutory adjudication authority designated under the CIPAA. The High Court struck out the application on the grounds that the AIAC was clothed with immunity under both the IOPIA and the CIPAA from any Court proceedings including judicial review. On appeal, the Court of Appeal reversed the decision of the High Court, holding that the AIAC was only entitled to assert immunity pursuant to the IOPIA in its capacity as an international arbitral institution and not in its capacity as the statutory adjudication authority. The Court of Appeal further held that the legal immunity conferred on the AIAC by virtue of both the IOPIA and the CIPAA did not extend to judicial review proceedings.
[7] The matter came up before us on 29 August 2024. At the close of arguments, we reserved our judgment to be given at a later date. We do so now.
Background Facts
[8] The background facts leading to this appeal can be gleaned from the judgments of the Courts below, the submissions of the parties and the appeal records. We respectfully adopt the same with some modifications where necessary.
[9] By way of a letter of award dated 8 December 2014, One Amerin appointed Ragawang as the contractor for the construction of Amerin Mall and Residence in Seri Kembangan, Selangor. The project was carried out and completed by Ragawang.
[10] Subsequently, a dispute arose between
