Azimah Omar JCA:

A. Introduction

[1] The two Appeals before us primarily concern preliminary issues as to the applicability and the proper interpretation of an Arbitration Clause as well as an Exclusive Jurisdiction Clause as against a third-layer subcontractor who was assigned the rights and terms of a subcontract Agreement which was entered into by 1st and 2nd-layer subcontractors.

[2] In essence, the third and final-layer subcontractor was the contractor who eventually performed the work package for the project and is now claiming for unpaid work allegedly done against the 1st-layer subcontractor via court litigation.

[3] The substance and merit of the claim was not yet determined by the High court. Instead, the parties are now before us in view of the Learned High court Judge's ("Learned Judge") dismissal of the 1st-layer subcontractor's Stay Application to refer the dispute to arbitration under s 10 of the Arbitration Act 2005.

[4] Despite there being two Appeals filed by the respective parties, the two Appeals impugn the sole decision to dismiss the Stay Application (albeit against different portions and points of the same decision).

[5] In any case, it is only apt for us to first appreciate and lay down the factual matrix that had culminated in the Appeals before us. Considering the parties are both appellants and respondents in their respective two Appeals, it is only practical to refer to their original capacities before the High court.

B. Factual Background

[6] For a swift and easy appreciation of the underlying facts we have prepared Table A below:

C. The Appeals Before Us

[7] We have perused the Memoranda of Appeal, the High court's Grounds of Judgment, the Records of Appeal and the parties' respective written submissions and we are of the view that the two Appeals before us can be decided by determining the following 3 issues:

a. Issue 1: Whether the Learned Judge was correct in finding that the Arbitration Clause and Exclusive Jurisdiction Clause within the 2nd Subcontract were enforceable against SKSB in view of the express incorporation and adoption of the 2nd Subcontract within the IESB LA;

b. Issue 2: Whether the Learned Judge was correct in its reading and interpretation of both the Arbitration Clause and the Exclusive Jurisdiction Clause and concluding that the reference to arbitration was only optional (not mandatory); and

c. Issue 3: Whether the Learned Judge was correct to find that Apex's requests for extensions of time did NOT effectively denote that Apex had abandoned its right to refer the dispute to arbitration.

D. Issue 1: Whether the Learned Judge Was Correct in Finding That the Arbitration Clause and Exclusive Jurisdiction Clause Within the 2nd Subcontract Were Enforceable Against SKSB in View of the Express Incorporation and Adoption of the 2nd Subcontract Within the IESB LA.

[8] At this early juncture, we are minded to set the record straight regarding the peculiar 'switch' or 'replacement' between SVSB and SKSB as the 3rd-layer Subcontractor. Fact of the matter is the subject 2nd Subcontract was a bipartite or bilateral agreement between IESB (2nd-layer Subcontractor) and SVSB (not SKSB / Plaintiff). It was gleaned from the pleadings that somehow both parties were in mutual agreement that the 2nd Subcontract effectively appointed SKSB (and not SVSB).

[9] We have examined parties' respective submissions and were curious to identify that neither the plaintiff nor the defendant was fully clear as to the manner, method, and history in which SKSB suddenly came into the picture. There appears to be an inexplicable 'gap' between the express appointment of SVSB and the subsequent mutual admission and acknowledgment by both parties that somehow SKSB was the party mutually accepted as the 3rd-layer Subcontractor (despite the IESB LA expressly naming SVSB). We thus understand the Learned Judge's predicament and ultimately, error in assuming that SKSB had come into the picture via a novation (or novation agreemen