1 PART I PRELIMINARY-1. Short title and commencement.

(1) This Act may be cited as the Arbitration Act 2005 .

(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette .

2 PART I PRELIMINARY-2. Interpretation.

(1) In this Act, unless the context otherwise requires:

  "award"  means a decision of the arbitral tribunal on the substance of the dispute and includes any final, interim or partial award and any award on costs or interest but does not include interlocutory orders;

  "High Court"  means the High Court in Malaya and the High Court in Sabah and Sarawak or either of them, as the case may require;

  "Minister"  means the Minister charged with the responsibility for arbitration;

  "State"  means a sovereign State and not a component state of Malaysia, unless otherwise specified;

  "presiding arbitrator"  means the arbitrator designated in the arbitration agreement as the presiding arbitrator or chairman of the arbit

3 PART I PRELIMINARY-3. Application to arbitrations and awards in Malaysia.

(1) This Act shall apply throughout Malaysia.

(2) In respect of a domestic arbitration, where the seat of arbitration is in Malaysia:

(a) Parts I, II and IV of this Act shall apply; and

(b) Part III of this Act shall apply unless the parties agree otherwise in writing.

(3) In respect of an international arbitration, where the seat of arbitration is in Malaysia:

(a) Parts I, II and IV of this Act shall apply; and

(b) Part III of this Act shall not apply unless the parties agree otherwise in writing.

(4) For the purposes of paragraphs (2) (b) and (3) (b) , the parties to a domestic arbitration may agree to exclude the application of Part III of this Act and the parties to an international arbitration may agree to apply Part III of this Act, in whole or in part.

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3A PART I PRELIMINARY-3A. Representation.

Unless otherwise agreed by the parties, a party to arbitral proceedings may be represented in the proceedings by any representative appointed by the party.

[Ins. Act A1569/2018]

4 PART I PRELIMINARY-4. Arbitrability of subject-matter.

(1) Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless the arbitration agreement is contrary to public policy.

(2) The fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration shall not, by itself, indicate that a dispute about that matter is not capable of determination by arbitration.

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5 PART I PRELIMINARY-5. Government to be bound.

This Act shall apply to any arbitration to which the Federal Government or the Government of any component state of Malaysia is a party.

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6 PART II ARBITRATION Chapter 1 General provisions-6. Receipt of written communications.

(1) Unless otherwise agreed by the parties:

(a) a written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; and

(b) where the places referred to in paragraph (a) cannot be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last known place of business, habitual residence or mailing address by registered post or any other means which provides a record of the attempt to deliver it.

(2) Unless otherwise agreed by the parties, a written communication sent electronically is deemed to have been received if it is sent to the electronic mailing address of the addressee.

(3) The communication is deemed to have been received on the day it is so delivered.

(4) This

7 PART II ARBITRATION Chapter 1 General provisions-7. Waiver of right to object.

A party who knows:

(a) of any provision of this Act from which the parties may derogate; or

(b) that any requirement under the arbitration agreement has not been complied with, and yet proceeds with the arbitration without stating its objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived its right to object.

8 PART II ARBITRATION Chapter 1 General provisions-8. Extent of court intervention.

No court shall intervene in matters governed by this Act, except where so provided in this Act.

[Subs. by Act A1395]

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9 Chapter 2 Arbitration Agreement-9. Definition and form of arbitration agreement.

(1) In this Act,   "arbitration agreement"  means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

(2) An arbitration agreement may be in the form of an arbitration clause in an agreement or in the form of a separate agreement.

(3) An arbitration agreement shall be in writing.

(4) An arbitration agreement is in writing where it is contained in:

(a) a document signed by the parties;

(b) an exchange of letters, telex, facsimile or other means of communication which provide a record of the agreement; or

(c) an exchange of statement of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

(5) A reference i

10 Chapter 2 Arbitration Agreement-10. Arbitration agreement and substantive claim before court.

(1) A court before which proceedings are brought in respect of a matter which is the subject of an arbitration agreement shall, where a party makes an application before taking any other steps in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed;

[Subs. by Act A1395]

(2) The court, in granting a stay of proceedings pursuant to subsection (1), may impose any conditions as it deems fit.

(2A) Where admiralty proceedings are stayed pursuant to subsection (1), the court granting the stay may, if in those proceedings property has been arrested or bail or other security has been given to prevent or obtain release from arrest:

(a) order that the property arrested be retainedas security for the satisfaction of any award given in the arbitrationin respect of that d

11 Chapter 2 Arbitration Agreement-11. Arbitration agreement and interim measures by High Court.

(1) A party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for:

(a) security for costs;

(b) discovery of documents and interrogatories;

(c) giving of evidence by affidavit;

(d) appointment of a receiver;

(e) securing the amount in dispute, whether by way of arrest of property or bail or other security pursuant to the admiralty jurisdiction of the High Court;

[Am. by Act A1395]

(f) the preservation, interim custody or sale of any property which is the subject-matter of the dispute;

(g) ensuring that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by a party; and

(h) an interim injunction or any other interim measure.

<

12 Chapter 3 Composition of Arbitrators-12. Number of arbitrators.

(1) The parties are free to determine the number of arbitrators.

(2) Where the parties fail to determine the number of arbitrators, the arbitral tribunal shall:

(a) in the case of an international arbitration, consist of three arbitrators; and

(b) in the case of a domestic arbitration, consist of a single arbitrator.

13 Chapter 3 Composition of Arbitrators-13. Appointment of arbitrators.

(1) Unless otherwise agreed by the parties, no person shall be precluded by reason of nationality from acting as an arbitrator.

(2) The parties are free to agree on a procedure for appointing the arbitrator or the presiding arbitrator.

(3) Where the parties fail to agree on the procedure referred to in subsection (2), and the arbitration consists of three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator as the presiding arbitrator.

(4) Where subsection (3) applies and:

(a) a party fails to appoint an arbitrator within thirty days of receipt of a request in writing to do so from the other party; or

(b) the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment or such extended period as the parties may agree, either party may apply to the Director of the Kuala Lumpur Regio

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Legal Commentary on Section 13 of the Arbitration Act 2005

Introduction

Section 13 of the Arbitration Act 2005 governs the appointment, challenge, and procedural aspects related to arbitrators in arbitration proceedings. It emphasizes the parties' autonomy in selecting arbitrators and provides mechanisms for challenging their appointment, ensuring the integrity of the arbitration process.

What does Section 13 Say

Section 13 details the procedures for:- The appointment of arbitrators, including default procedures when parties fail to agree.- The challenge to the appointment or continuing validity of an arbitrator based on circumstances affecting impartiality or independence.- The process for challenging arbitrators and the consequences of such challenges.

Essential Ingredients

• Party Agreement: Parties are free to agree on procedures for appointing and challenging arbitrators.
• Default Procedure: If no agreement exists, courts or appointing authorities may step in.
• Grounds for Challenge: Circumstances that give justifiable doubts about an arbitrator’s independence or impartiality.
• Challenge Timeline: Challenges must be made promptly, typically before the arbitral tribunal or within a specified period.
• Procedural Fairness: Arbitrators and parties must act fairly, and challenges are to be made in accordance with the prescribed procedures.

Scope of Section 13

• Applies to both domestic and international arbitrations.
• Covers appointment, replacement, and challenge of arbitrators.
• Ensures judicial oversight in cases of dispute over arbitrator appointment or conduct.
• Provides a framework to uphold the legitimacy and fairness of arbitration proceedings.

Punishment for Section (Misuse or Non-compliance)

• Nullification of Arbitrator’s Appointment: If appointment procedures are violated, the appointment can be declared invalid, rendering subsequent proceedings and awards null and void.
• Court Intervention: Courts have the authority to set aside or refuse to recognize arbitrators appointed contrary to statutory provisions.
• Invalid Awards: Awards can be challenged and set aside if arbitrators were improperly appointed or challenged without proper grounds.

Legal Comments

• Party Autonomy - Section 13 emphasizes parties’ freedom to agree on appointment procedures, promoting flexibility in arbitration. [Law, Practice and Procedure of Arbitration — The Arbitration Act 2005]
• Default Appointment - When parties fail to agree, courts or designated authorities can appoint arbitrators, ensuring arbitration can proceed without undue delay. [Section 13(5)]
• Grounds for Challenge - Circumstances that give rise to justifiable doubts about an arbitrator’s independence or impartiality are explicitly recognized, safeguarding fairness. [Section 13(3)]
• Timeliness - Challenges must be made promptly, typically before the arbitral tribunal, to prevent unnecessary delays. [Section 13(3A)]
• Challenge Procedure - The procedure for challenging an arbitrator is to be followed strictly, failure to do so may result in the challenge being invalid. [Section 13(2)]
• Court’s Role - Courts retain jurisdiction to decide on challenges and validity of arbitrator appointments, reinforcing judicial oversight. [Section 13(1)]
• Invalid Appointment - Arbitrator appointed without adherence to statutory procedures can be declared invalid, affecting the legitimacy of the arbitration process. [Para 12 of sources]
• Challenging Arbitrators - Parties can challenge arbitrators even with consent, if grounds such as lack of independence or impartiality exist. [Section 13(3A)]
• Impact of Improper Appointment - An improperly appointed arbitrator can render the entire arbitration proceedings and awards null and void. [Case references: 2005(8) SCC 618]
• Judicial Intervention - Courts can set aside arbitration awards if arbitrators were appointed in violation of statutory provisions or if procedural irregularities occurred. [AIR 2005 SC 214]
• Procedural Fairness - Ensuring that arbitrators disclose circumstances that may affect their independence is critical for procedural fairness. [Section 13(3)]
• Multiple Arbitrators - Section 13 allows for joint appointment of multiple claimants or respondents, promoting fairness in multi-party disputes. [Section 13(3A)]
• International Context - Section 13 aligns with international arbitration standards by allowing parties to determine appointment procedures, including for foreign arbitrators. [International Arbitration Laws and Regulations 2025]
• Court’s Discretion - Courts have discretion to dismiss challenges that are frivolous or not made in accordance with law, maintaining procedural discipline. [Section 13(2)]
• Legal Validity of Arbitrator’s Actions - Arbitrators must act within their scope; exceeding authority may lead to challenge and nullification of awards. [Section 13(5)]
• Relevance of Consent - Even with consent, arbitrators can be challenged if circumstances undermine their independence or impartiality. [Case: 2008(10) SCC 128]
• Procedural Safeguards - Section 13 provides safeguards to prevent arbitrary appointment or removal of arbitrators, reinforcing the integrity of arbitration. [Law, Practice and Procedure of Arbitration]
• Judicial Review - The scope of judicial review under Section 13 is limited to procedural irregularities and challenges related to appointment and independence. [Section 13 and relevant case law]

Note: This commentary synthesizes legal principles from the provided sources, emphasizing the importance of procedural adherence, fairness, and judicial oversight in arbitration under Section 13 of the Arbitration Act 2005.

14 Chapter 3 Composition of Arbitrators-14. Grounds for challenge.

(1) A person who is approached in connection with that person's possible appointment as an arbitrator shall disclose any circumstances likely to give rise to justifiable doubts as to that person's impartiality or independence.

(2) An arbitrator shall, without delay, from the time of appointment and throughout the arbitral proceedings, disclose any circumstances referred to in subsection (1) to the parties unless the parties have already been informed of such circumstances by the arbitrator.

(3) An arbitrator may be challenged only if:

(a) the circumstances give rise to justifiable doubts as to that arbitrator's impartiality or independence; or

(b) that arbitrator does not possess qualifications agreed to by the parties.

(4) A party may challenge an arbitrator appointed by that party, or in whose appointment that party has participated, only for reasons which that party

15 Chapter 3 Composition of Arbitrators-15. Challenge procedure.

(1) Unless otherwise agreed by the parties, any party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or of any reasons referred to in subsection 14(3), send a written statement of the reasons for the challenge to the arbitral tribunal.

(2) Unless the challenged arbitrator withdraws from office or the other party agrees to the challenge, the arbitral tribunal shall make a decision on the challenge.

(3) Where a challenge is not successful, the challenging party may, within thirty days after having received notice of the decision rejecting the challenge, apply to the High Court to make a decision on the challenge.

(4) While such an application is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.

(5) No appeal shall lie against the decision of the High Court under su

16 Chapter 3 Composition of Arbitrators-16. Failure or impossibility to act.

(1) Where an arbitrator becomes in law or in fact unable to perform the functions of that office, or for other reasons fails to act without undue delay, that arbitrator's mandate terminates on withdrawal from office or if the parties agree on the termination.

(2) Where any party disagrees on the termination of the mandate of the arbitrator, any party may apply to the High Court to decide on such termination and no appeal shall lie against the decision of the High Court.

(3) Where, under this section or subsection 15(2), an arbitrator withdraws from office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or subsection 14(3).

17 Chapter 3 Composition of Arbitrators-17. Appointment of substitute arbitrator.

(1) A substitute arbitrator shall be appointed in accordance with the provisions of this Act where:

(a) the mandate of an arbitrator terminates under section 15 or 16;

(b) an arbitrator withdraws from office for any other reason;

(c) the mandate of the arbitrator is revoked by agreement of the parties; or

(d) in any other case of termination of mandate.

(2) Unless otherwise agreed by the parties:

(a) where a single or the presiding arbitrator is replaced, any hearings previously held shall be repeated before the substitute arbitrator; or

(b) where an arbitrator other than a single or the presiding arbitrator is replaced, any hearings previously held may be repeated at the discretion of the arbitral tribunal.

(3) Unless otherwise agreed by the parties, any order or ruling of the arbit

18 Chapter 4 Jurisdiction of Arbitral Tribunal-18. Competence of arbitral tribunal to rule on its jurisdiction.

(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

(2) For the purposes of subsection (1):

(a) an arbitration clause which forms part of an agreement shall be treated as an agreement independent of the other terms of the agreement; and

(b) a decision by the arbitral tribunal that the agreement is null and void shall not ipso jure entail the invalidity of the arbitration clause.

(3) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence.

(4) A party is not precluded from raising a plea under subsection (3) by reason of that party having appointed or participated in the appointment of the arbitrator.

(5) A plea that the arbitral tribunal is exceeding the scope of its auth

19 Chapter 4 Jurisdiction of Arbitral Tribunal-19. Power of arbitral tribunal to order interim measures.

(1) Unless otherwise agreed by the parties, a party may apply to the arbitral tribunal for any of the following orders:

(a) security for costs;

(b) discovery of documents and interrogatories;

(c) giving of evidence by affidavit;

(d) the preservation, interim custody or sale of any property which is the subject-matter of the dispute.

(2) The arbitral tribunal may require any party to provide appropriate security in connection with such measure as ordered under subsection (1).

(3) Unless otherwise agreed by the parties, sections 38 and 39 shall apply to orders made by an arbitral tribunal under this section as if a reference in those sections to an award were a reference to such an order.

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19A Chapter 4 Jurisdiction of Arbitral Tribunal-19A. Conditions for granting interim measures.

(1) The party requesting for the interim measures order under paragraphs 19(2)(a), (b) or (c) shall satisfy the arbitral tribunal that:

(a) harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and

(b) there is a reasonable possibility that the requesting party will succeed on the merits of the claim.

(2) The determination on the reasonable possibility referred to in paragraph (1)(b) shall not affect the discretion of the arbitral tribunal in making any subsequent determination relating to the dispute.

(3) In respect of the request for an interim measure order under paragraph 19(2)(d), the conditions in subsections (1) and (2) shall apply only to the extent the arbitral tribunal co

19B Chapter 4 Jurisdiction of Arbitral Tribunal-19B. Application for preliminary orders and conditions for granting preliminary orders.

(1) Unless otherwise agreed by the parties, a party may,without notice to any other party, make a request for an interim measure together with an application for a preliminary order directing a party not to frustrate the purpose of the interim measure requested.

(2) The arbitral tribunal may grant a preliminary order provided that the arbitral tribunal considers that prior disclosure of the request for the interim measure to the party against whom the measure is directed risks frustrating the purpose of the interim measure.

(3) The conditions specified in section 19A shall apply to any preliminary order provided that the harm to be assessed under paragraph 19A(1)(a)is the harm that is likely to result from the order being granted or not.

[Ins. Act A1569/2018]

19C Chapter 4 Jurisdiction of Arbitral Tribunal-19C. Specific regime for preliminary orders.

(1) Immediately after the arbitral tribunal has made adetermination in respect of an application for a preliminary order, the arbitral tribunal shall:

(a) give notice to all parties of the request for the interim measure, the application for the preliminary order, the preliminary order, if any, and all other communications, including by indicating the content of any oral communication, between any party and the arbitral tribunal in relation thereto; and

(b) give an opportunity to any party against whom a preliminary order is directed to present its case at the earliest practicable time.

(2) The arbitral tribunal shall decide immediately on any objection to the preliminary order.

(3) A preliminary order shall expire after twenty days from the date on which the order was issued by the arbitral tribunal.

(4) Notwithstanding subsection (3), the arbitral tribunal may issue a

19D Chapter 4 Jurisdiction of Arbitral Tribunal-19D. Modification, suspension or termination.

The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, upon an application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal's own initiative.

[Ins. Act A1569/2018]

19E Chapter 4 Jurisdiction of Arbitral Tribunal-19E. Provision of security.

(1) The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.

(2) The arbitral tribunal shall require the party applying for a preliminary order to provide security in connection with the order unless the arbitral tribunal considers it inappropriate or unnecessary to do so.

[Ins. Act A1569/2018]

19F Chapter 4 Jurisdiction of Arbitral Tribunal-19F. Disclosure.

(1) The arbitral tribunal may require any party to immediately disclose any material change in the circumstances on the basis of which the interim measure or preliminary order was requested or applied or granted.

(2) The party applying for a preliminary order shall disclose to the arbitral tribunal all the circumstances that are likely to be relevant to the arbitral tribunal's determination on whether to grant or maintain the order and such obligation shall continue until the party against whom the order has been requested has had an opportunity to present its case.

19G Chapter 4 Jurisdiction of Arbitral Tribunal-19G. Costs and damages.

(1) The party requesting for an interim measure or applying for a preliminary order shall be liable for any costs and damages caused by the interim measure or the preliminary order to any party if the arbitral tribunal later determines that, in the circumstances, the interim measure or the preliminary order should not have been granted.

(2) The arbitral tribunal may award such costs and damages referred to in subsection (1) at any point during the proceedings.

[Ins. Act A1569/2018]

19H Chapter 4 Jurisdiction of Arbitral Tribunal-19H. Recognition and enforcement.

(1) Subject to the provisions of section 19I, an interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued.

(2) The party who is seeking or has obtained recognition or enforcement of an interim measure shall immediately inform the court of any termination, suspension or modification of that interim measure.

(3) The court where recognition or enforcement is sought may, if it considers it proper, order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security or where such a decision is necessary to protect the rights of third parties.

[Ins. Act A1569/2018]

19I Chapter 4 Jurisdiction of Arbitral Tribunal-19I. Grounds for refusing recognition or enforcement.

(1) Recognition or enforcement of an interim measure may be refused only:

(a) at the request of the party against whom it is invoked if the High Court is satisfied that:

(i)such refusal is warranted on the grounds set forth in subparagraph 39(1)(a)(i), (ii), (iii), (iv), (v) or (vi);

(ii)the arbitral tribunal's decision with respect to the provision of security in connection with the interim measure issued by the arbitral tribunal has not been complied with; or

(iii)the interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the State in which the arbitration takes place or under the law of which that interim measure was granted; or

(b) if the High Court finds that:

(i)the interim measure is incompatible with the powers conferred upon the Court, but the Court may decide to reformu

19J Chapter 4 Jurisdiction of Arbitral Tribunal-19J. Court-ordered interim measures.

(1) The High Court has the power to issue an interim measure in relation to arbitration proceedings, irrespective of whether the seat of arbitration is in Malaysia.(2) The High Court shall exercise the power referred to in subsection (1) in accordance with its own procedures in consideration of the specific features of international arbitration.

[Ins. Act A1569/2018]

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20 Chapter 5 Conduct of arbitral proceedings-20. Equal treatment of parties.

The parties shall be treated with equality and each party shall be given a fair and reasonable opportunity of presenting that party's case.

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21 Chapter 5 Conduct of arbitral proceedings-21. Determination of rules of procedure.

(1) Subject to the provisions of this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(2) Where the parties fail to agree under subsection (1), the arbitral tribunal may, subject to the provisions of this Act, conduct the arbitration in such manner as it considers appropriate.

(3) The power conferred upon the arbitral tribunal under subsection (2) shall include the power to:

(a) determine the admissibility, relevance, materiality and weight of any evidence;

(b) draw on its own knowledge and expertise;

(c) order the provision of further particulars in a statement of claim or statement of defence;

(d) order the giving of security for costs;

(e) fix and amend time limits within which various steps in the arbitral proceedings must be completed;

(f) order

22 Chapter 5 Conduct of arbitral proceedings-22. Seat of arbitration.

(1) The parties are free to agree on the seat of arbitration.

(2) Where the parties fail to agree under subsection (1), the seat of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

(3) Notwithstanding subsections (1) and (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.

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This latter issue is governed by the AA. Put shortly,

23 Chapter 5 Conduct of arbitral proceedings-23. Commencement of arbitral proceedings.

Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute shall commence on the date on which a request in writing for that dispute to be referred to arbitration is received by the respondent.

24 Chapter 5 Conduct of arbitral proceedings-24. Language.

(1) The parties are free to agree on the language to be used in the arbitral proceedings.

(2) Where the parties fail to agree under subsection (1), the arbitral tribunal shall determine the language to be used in the arbitral proceedings.

(3) The agreement or the determination referred to in subsections (1) and (2) respectively shall, unless otherwise specified in the agreement or determination, apply to any written statement made by a party, any hearing and any award, decision or other communication by the arbitral tribunal.

(4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language agreed upon by the parties or determined by the arbitral tribunal.

25 Chapter 5 Conduct of arbitral proceedings-25. Statements of claim and defence.

(1) Within the period of time agreed by the parties or, failing such agreement, as determined by the arbitral tribunal, the claimant shall state:

(a) the facts supporting his claim;

(b) the points at issue; and

(c) the relief or remedy sought, and the respondent shall state his defence in respect of the particulars set out in this subsection, unless the parties have otherwise agreed to the required elements of such statements.

(2) The parties may:

(a) submit with their statements any document the parties consider relevant; or

(b) add a reference to the documents or other evidence that the parties may submit.

(3) Unless otherwise agreed by the parties, either party may amend or supplement the claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inap

26 Chapter 5 Conduct of arbitral proceedings-26. Hearings.

(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or oral arguments, or whether the proceedings shall be conducted on the basis of documents and other materials.

(2) Unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall upon the application of any party hold oral hearings at an appropriate stage of the proceedings.

(3) The parties shall be given reasonable prior notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents.

(4) All statements, documents or other information supplied to the arbitral tribunal by one party shall be communicated to the other party.

(5) Any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.

27 Chapter 5 Conduct of arbitral proceedings-27. Default of a party.

Unless otherwise agreed by the parties, if without showing sufficient cause:

(a) the claimant fails to communicate the statement of claim in accordance with subsection 25(1), the arbitral tribunal shall terminate the proceedings;

(b) the respondent fails to communicate the statement of defence in accordance with subsection 25(1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant's allegations;

(c) any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it; or

(d) the claimant fails to proceed with the claim, the arbitral tribunal may make an award dismissing the claim or give directions, with or without conditions, for the speedy determination of the claim.

28 Chapter 5 Conduct of arbitral proceedings-28. Expert appointed by arbitral tribunal.

(1) Unless otherwise agreed by the parties, the arbitral tribunal may:

(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; or

(b) require a party to give the expert any relevant information or to produce or to provide access to any relevant documents, goods or other property for the expert's inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of a written or oral report, participate in a hearing where the parties have the opportunity to put questions to the expert and to present other expert witnesses in order to testify on the points at issue.

29 Chapter 5 Conduct of arbitral proceedings-29. Court assistance in taking evidence.

(1) Any party may with the approval of the arbitral tribunal, apply to the High Court for assistance in taking evidence.

(2) The High Court may order the attendance of a witness to give evidence or, where applicable, produce documents on oath or affirmation before an officer of the High Court or any other person, including the arbitral tribunal.

30 Chapter 6 Making of Award and Termination of Proceedings-30. Law applicable to substance of dispute.

(1) Unless otherwise agreed by the parties, in respect of a domestic arbitration where the seat of arbitration is in Malaysia, the arbitral tribunal shall decide the dispute in accordance with the substantive law of Malaysia.

[Am. by Act A1395]

(2) In respect of an international arbitration, the arbitral tribunal shall decide the dispute in accordance with the law as agreed upon by the parties as applicable to the substance of the dispute.

(3) Any designation by the parties of the law of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules.

(4) Failing any agreement under subsection (2), the arbitral tribunal shall apply the law determined by the conflict of laws rules.

(5) The arbitral tribunal shall, in all cases, decide in accordance with the terms of the agreement and shall take int

31 Chapter 6 Making of Award and Termination of Proceedings-31. Decision making by panel of arbitrators.

(1) Unless otherwise agreed by the parties, in any arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made by a majority of all its members.

(2) Where so authorized by the parties or by all the members of the arbitral tribunal, questions of procedure may be decided by the presiding arbitrator.

32 Chapter 6 Making of Award and Termination of Proceedings-32. Settlement.

(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an award on agreed terms.

(2) An award on agreed terms shall be made in accordance with the provisions of section 33 and shall state that it is an award. (3) An award made under subsection (1) shall have the same status and effect as an award on the merits of the case.

33 Chapter 6 Making of Award and Termination of Proceedings-33. Form and contents of award.

(1) An award shall be made in writing and subject to subsection (2) shall be signed by the arbitrator.

(2) In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall be sufficient provided that the reason for any omitted signature is stated.

(3) An award shall state the reasons upon which it is based, unless:

(a) the parties have agreed that no reasons are to be given; or

(b) the award is an award on agreed terms under section 32.

(4) An award shall state its date and the seat of arbitration as determined in accordance with section 22 and shall be deemed to have been made at that seat.

(5) After an award is made, a copy of the award signed by the arbitrator in accordance with subsections (1) and (2) shall be delivered to each party.

(6) Unless otherwise provided in the arbitration

34 Chapter 6 Making of Award and Termination of Proceedings-34. Termination of proceedings.

(1) The arbitral proceedings shall be terminated by a final award or by an order of the arbitral tribunal in accordance with subsection (2).

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

(a) the claimant withdraws the claim, unless the respondent objects to the withdrawal and the arbitral tribunal recognises the respondent's legitimate interest in obtaining a final settlement of the dispute;

(b) the parties agree on the termination of the proceedings; or

(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

(3) Subject to the provisions of section 35 and subsection 37(6), the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings.

(4) Unless otherwise provided by any written law, the death o

35 Chapter 6 Making of Award and Termination of Proceedings-35. Correction and interpretation of award or additional award.

(1) A party, within thirty days of the receipt of the award, unless any other period of time has been agreed upon by the parties:

(a) upon notice to the other party, may request the arbitral tribunal to correct in the award any error in computation, any clerical or typographical error or other error of similar nature; or

(b) upon notice to and with the agreement of the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

(2) Where the arbitral tribunal considers the request made under subsection (1) to be justified, it shall make the correction or give the interpretation within thirty days of the receipt of the request and such interpretation shall form part of the award.

(3) The arbitral tribunal may correct any error of the type referred to in paragraph (1) (a) on its own initiative within thirty days of t

36 Chapter 6 Making of Award and Termination of Proceedings-36. An award is final and binding.

(1) An award made by an arbitral tribunal pursuant to an arbitration agreement shall be final and binding on the parties and may be relied upon by any party by way of defence, set-off or otherwise in any proceedings in any court.

(2) The arbitral tribunal shall not vary, amend, correct, review, add to or revoke an award which has been made except as specifically provided for in section 35.

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37 Chapter 7 Recourse Against Award-37. Application for setting aside.

(1) An award may be set aside by the High Court only if:

(a) the party making the application provides proof that:

(i) a party to the arbitration agreement was under any incapacity;

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of Malaysia;

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party's case;

(iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

(v) subject to subsection (3), the award contains decisions on matters beyond the scope of the submission to arbitration; or

(vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance wi

38 Chapter 8 Recognition and Enforcement of Awards-38. Recognition and enforcement.

(1) On an application in writing to the High Court, an award made in respect of an arbitration where the seat of arbitration is in Malaysia or an award from a foreign State shall, subject to this section and section 39 be recognised as binding and be enforced by entry as a judgment in terms of the award or by action.

[Am. by Act A1395]

(2) In an application under subsection (1) the applicant shall produce:

(a) the duly authenticated original award or a duly certified copy of the award; and

(b) the original arbitration agreement or a duly certified copy of the agreement.

(3) Where the award or arbitration agreement is in a language other than the national language or the English language, the applicant shall supply a duly certified translation of the award or agreement in the English language.

(4) For the purposes of this Act,

39 Chapter 8 Recognition and Enforcement of Awards-39. Grounds for refusing recognition or enforcement.

(1) Recognition or enforcement of an award, irrespective of the State in which it was made, may be refused only at the request of the party against whom it is invoked:

(a) where that party provides to the High Court proof that:

(i) a party to the arbitration agreement was under any incapacity;

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of the State where the award was made;

[Am. by Act A1395]

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party's case;

(iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

(v) subject to subsection (3), the award

40 PART III ADDITIONAL PROVISIONS RELATING TO ARBITRATION-40. Consolidation of proceedings and concurrent hearings.

(1) The parties may agree:

(a) that the arbitration proceedings shall be consolidated with other arbitration proceedings; or

(b) that concurrent hearings shall be held, on such terms as may be agreed.

(2) Unless the parties agree to confer such power on the arbitral tribunal, the tribunal has no power to order consolidation of arbitration proceedings or concurrent hearings.

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41 PART III ADDITIONAL PROVISIONS RELATING TO ARBITRATION-41. Determination of preliminary point of law by court.

(1) Any party may apply to the High Court to determine any question of law arising in the course of the arbitration:

(a) with the consent of the arbitral tribunal; or

(b) with the consent of every other party.

(2) The High Court shall not consider an application under subsection (1) unless it is satisfied that the determination:

(a) is likely to produce substantial savings in costs; and

(b) substantially affects the rights of one or more of the parties.

(3) The application shall identify the question of law to be determined and, except where made with the agreement of all parties to the proceedings, shall state the grounds that support the application.

(4) While an application under subsection (1) is pending, the arbitral proceedings may be continued and an award may be made.

41A PART III ADDITIONAL PROVISIONS RELATING TO ARBITRATION-41A. Disclosure of information relating to arbitral proceedings and awards prohibited.

(1) Unless otherwise agreed by the parties, no partymay publish, disclose or communicate any information relating to:

(a) the arbitral proceedings under the arbitration agreement; or

(b) an award made in those arbitral proceedings.

(2) Nothing in subsection (1) shall prevent the publication, disclosure or communication of information referred to in that subsection by a party:

(a) if the publication, disclosure or communication is made:

(i) to protect or pursue a legal right or interest of the party; or

(ii)to enforce or challenge the award referred to in that subsection,

in legal proceedings before a court or other judicial authority in or outside Malaysia;

(b) if the publication, disclosure or communication is made to any government body, regulatory body, court or tribunal and the party is o

41B PART III ADDITIONAL PROVISIONS RELATING TO ARBITRATION-41B. Proceedings to be heard otherwise than in open court.

(1) Subject to subsection (2), court proceedings underthis Act are to be heard otherwise than in an open court.

(2) Notwithstanding subsection (1), the court may order the proceedings to be heard in an open court:

(a) on the application of any party; or

(b) if, in any particular case, the court is satisfied that those proceedings ought to be heard in an open court.

(3) An order of the court under subsection (2) is final.

[Ins. Act A1569/2018]

42 PART III ADDITIONAL PROVISIONS RELATING TO ARBITRATION-42. Reference on questions of law.

1) Any party may refer to the High Court any question of law arising out of an award.

(1A) The High Court shall dismiss a reference made under subsection (1) unless the question of law substantially affects the rights of one or more of the parties.

[Ins. by Act A1395]

(2) A reference shall be filed within forty-two days of the publication and receipt of the award, and shall identify the question of law to be determined and state the grounds on which the reference is sought.

(3) The High Court may order the arbitral tribunal to state the reasons for its award where the award:

(a) does not contain the arbitral tribunal's reasons; or

(b) does not set out the arbitral tribunal's reasons in sufficient detail.

(4) The High Court may, on the determination of a reference:

(a) confirm the award;

(b

43 PART III ADDITIONAL PROVISIONS RELATING TO ARBITRATION-43. Appeal.

A decision of the High Court under section 42 shall be deemed to be a judgment of the High Court within the meaning of section 67 of the Courts of Judicature Act 1964 [Act 91] .

44 PART III ADDITIONAL PROVISIONS RELATING TO ARBITRATION-44. Costs and expenses of an arbitration.

(1) Unless otherwise agreed by the parties:

(a) the costs and expenses of an arbitration shall be in the discretion of the arbitral tribunal who may:

(i) direct to and by whom and in what manner those costs or any part thereof shall be paid;

(ii) tax or settle the amount of such costs and expenses; and

(iii) award such costs and expenses to be paid as between solicitor and client;

(b) any party may apply to the High Court for the costs to be taxed where an arbitral tribunal has in its award directed that costs and expenses be paid by any party, but fails to specify the amount of such costs and expenses within thirty days of having being requested to do so; or

(c) each party shall be responsible for its own legal and other expenses and for an equal share of the fees and expenses of the arbitral tribunal and any other expenses relating to th

45 PART III ADDITIONAL PROVISIONS RELATING TO ARBITRATION-45. Extension of time for commencing arbitration proceedings.

Where an arbitration agreement provides that arbitral proceedings are to be commenced within the time specified in the agreement, the High Court may, notwithstanding that the specified time has expired, extend the time for such period and on such terms as it thinks fit, if it is of the opinion that in the circumstances of the case undue hardship would otherwise be caused.

46 PART III ADDITIONAL PROVISIONS RELATING TO ARBITRATION-46. Extension of time for making award.

(1) Where the time for making an award is limited by the arbitration agreement, the High Court may, unless otherwise agreed by the parties, extend that time.

(2) An application under subsection (1) may be made:

(a) upon notice to the parties, by the arbitral tribunal; or

(b) upon notice to the arbitral tribunal and the other parties, by any party to the proceedings.

(3) The High Court shall not make an order unless:

(a) all available tribunal processes for obtaining an extension of time have been exhausted; and

(b) the High Court is satisfied that substantial injustice would otherwise be done.

(4) The High Court may exercise its powers under subsection

(1) notwithstanding that the time previously fixed by or under the arbitration agreement or by a previous order has expired.

47 PART IV MISCELLANEOUS-47. Liability of arbitrator.

An arbitrator shall not be liable for any act or omission in respect of anything done or omitted to be done in the discharge of his functions as an arbitrator unless the act or omission is shown to have been in bad faith.

48 PART IV MISCELLANEOUS-48. Immunity of arbitral institutions.

The Director of the Kuala Lumpur Regional Centre for Arbitration or any other person or institution designated or requested by the parties to appoint or nominate an arbitrator, shall not be liable for anything done or omitted in the discharge of the function unless the act or omission is shown to have been in bad faith.

49 PART IV MISCELLANEOUS-49. Bankruptcy.

(1) Where a party to an arbitration agreement is a bankrupt and the person having jurisdiction to administer the property of the bankrupt adopts the agreement, the arbitration agreement shall be enforceable by or against that person.

(2) The High Court may direct any matter in connection with or for the purpose of bankruptcy proceedings to be referred to arbitration if:

(a) the matter is one to which the arbitration agreement applies;

(b) the arbitration agreement was made by a person who has been adjudged a bankrupt before the commencement of the bankruptcy proceedings; and

(c) the person having jurisdiction to administer the property does not adopt the agreement.

(3) An application under subsection (2) may be made by:

(a) any other party to the arbitration agreement; or

(b) any person having jurisdiction to admi

50 PART IV MISCELLANEOUS-50. Mode of application.

Any application to the High Court under this Act shall be by an originating summons as provided in the Rules of the High Court 1980 [P.U.(A) 50/1980] .

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Refer to where the application was by way of originating motion in breach of s 50.

51 PART IV MISCELLANEOUS-51. Repeal and savings.

(1) The Arbitration Act 1952 [Act 93] and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985 [Act 320] 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.

(4) Any court proceedings relating to arbitration commenced after the commencement of this Act shall be governed by this Act notwithstanding that such proceedings arose out of arbitral proceedings commenced before the commencement of this Act.

[Ins. by Act A1395]

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