(1) This Act may be cited as the Arbitration (amendment) (No. 2) Act 2018 .

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

The Arbitration Act 2005 [Act 646] , which is referred to as the "principal Act" in this Act, is amended in section 2 in the definition of "arbitral tribunal", by inserting after the word "means" the words "an

1 -1. Short title and commencement.

(1) This Act may be cited as the Arbitration (Amendment) (No. 2) Act 2018 .

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

2 -2. Amendment of section 2.

The Arbitration Act 2005 [Act 646] , which is referred to as the "principal Act" in this Act, is amended in section 2 in the definition of "arbitral tribunal", by inserting after the word "means" the words "an emergency arbitrator,".

3 -3. New section 3A.

The principal Act is amended by inserting after section 3 the following section:

" 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.".

4 -4. Amendment of section 4.

Subsection 4(1) of the principal Act is amended by inserting after the words "public policy" the words "or the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia".

5 -5. Amendment of section 9.

Section 9 of the principal Act is amended-

(a) by substituting for subsection (4) the following subsection:

"(4) An arbitration agreement is in writing-

(a) if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means; or

(b) if it is contained in 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.";

(b) by inserting after subsection (4) the following subsection:

"(4A) The requirement that an arbitration agreement be in writing is met by any electronic communication that the parties make by means of data message if the information contained therein is accessible so as to be useable for subsequent reference."; and

6 -6. Amendment of section 11.

Subsection 11(1) of the principal Act is amended-

(a) by substituting for the words "for:" the words "for the party to-"; and

(b) by substituting for paragraphs (a) to (h) the following paragraphs:

" (a) maintain or restore the status quo pending the determination of the dispute;

(b) take action that would prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process;

(c) provide a means of preserving assets out of which a subsequent award may be satisfied, whether by way of arrest of property or bail or other security pursuant to the admiralty jurisdiction of the High Court;

(d) preserve evidence that may be relevant and material to the resolution of the dispute; or

(e) provide security for the costs of the dispute.".

7 -7. Amendment of section 19.

Section 19 of the principal Act is amended-

(a) in subsection (1)-

(i) by substituting for the words "a party may apply to the arbitral tribunal for any of the following orders:" the words "the arbitral tribunal may, at the request of a party, grant interim measures."; and

(ii) by deleting paragraphs (a) to (d) ;

(b) by substituting for subsection (2) the following subsection:

"(2) An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to-

(a) maintain or restore the status quo pending the determination of the dispute;

(b) take action that would prevent or refrain from taking action that is likely to cause

8 -8. New sections 19A, 19B, 19C, 19D, 19E, 19F, 19G, 19H, 19I and 19J.

The principal Act is amended by inserting after section 19 the following sections:

" 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

9 -9. Amendment of section 30.

Section 30 of the principal Act is amended-

(a) by substituting for subsection (1) the following subsection:

"(1) The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute.";

(b) by deleting subsection (2);

(c) in subsection (3), by substituting for the words "Any designation by the parties of the law" the words "Any designation of the law or legal system";

(d) by substituting for subsection (4) the following subsection:

"(4) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable."; and

(e) by inserting after subsection (4) the following subsection:

"(4A) The arbitral tri

10 -10. Amendment of section 33.

Section 33 of the principal Act is amended-

(a) by substituting for subsection (6) the following subsection:

"(6) Subject to subsection (8), unless otherwise agreed by the parties, the arbitral tribunal may, in the arbitral proceedings before it, award simple or compound interest from such date, at such rate and with such rest as the arbitral tribunal considers appropriate, for any period ending not later than the date of payment of the whole or any part of-

(a) any sum which is awarded by the arbitral tribunal in the arbitral proceedings;

(b) any sum which is in issue in the arbitral proceedings but is paid before the date of the award; or

(c) costs awarded or ordered by the arbitral tribunal in the arbitral proceedings."; and

(b) by inserting after subsection (6) the following subsections:

11 -11. New sections 41A and 41B.

The principal Act is amended by inserting after section 41 the following sections:

" 41A. Disclosure of information relating to arbitral proceedings and awards prohibited

(1) Unless otherwise agreed by the parties, no party may 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 judic

12 -12. Deletion of section 42.

The principal Act is amended by deleting section 42.

13 -13. Deletion of section 43.

The principal Act is amended by deleting section 43.