Case Update: Court Can Grant Interim Measures against Non-Parties to Arbitration

The High Court in Padda Gurtaj Singh and others v Axiata Group Berhad and others (grounds of judgment dated 29 March 2022) granted an interim measure in the form of an injunction against Axiata Group Berhad, a non-party to an arbitration agreement. This was pending the arbitration between the parties to an arbitration agreement.

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Top 5 Arbitration Cases in Malaysia 2021

I feature the Top 5 Arbitration Cases in Malaysia for the year 2021. This follows the past editions of the 2020 cases and the 2019 cases.

This year-end review covers the issues on the seat of arbitration for West Malaysia and East Malaysia, the stay of arbitration proceedings, court reliefs after the issuance of the arbitral award, the availability of the Mareva injunction interim measure, and the grant of an anti-arbitration injunction.

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Federal Court Grants Anti-Arbitration Injunction to a Non-Party to the Arbitration

The Federal Court in its grounds of judgment dated 1 July 2019 in Jaya Sudhir a/l Jayaram v Nautical Supreme Sdn Bhd & Ors reinstated an anti-arbitration injunction in favour of a non-party to an arbitration. The anti-arbitration injunction was made against the parties to an ongoing arbitration to restrain them from proceeding and continuing with the arbitration proceedings, pending the parallel Court proceedings.

The Federal Court ruled on the questions of law that sections 8 and 10 of the Arbitration Act 2005 (AA 2005) would not apply to a party litigant who is not a party to the arbitration agreement and/or arbitration proceedings. Section 8 of the AA 2005 essentially states that no court shall intervene in matters governed by the AA 2005. Section 10 of the AA 2005 allows for the court to stay court proceedings and refer parties to arbitration.

In this decision, the Federal Court allowed a non-party to the arbitration to resort to the Court’s inherent jurisdiction to grant an anti-arbitration injunction to restrain the arbitrating parties from proceeding with the arbitration. The test to be applied is the American Cyanamid-like test of a serious issue to be tried (or as applied in Malaysia via the Keet Gerald Francis test) instead of a higher threshold in the English High Court decision in J Jarvis v Blue Circle Dartfort Estates [2007[ EWHC 1262 (TCC).

Where there are parallel court proceedings involving some parties in an arbitration and non-parties to an arbitration, this Federal Court decision appears to favour giving primacy to the court proceedings and to allow an injunction or stay of the arbitration proceedings. Continue reading

Case Update: Federal Court Rules on Seat of Arbitration and the Law of the Arbitration Agreement

The Federal Court in its grounds of judgment dated 17 August 2017 has ruled on the Thai-Lao Lignite v Government of the Lao People’s Democratic Republic appeal.

The Question of Law and the Determination

There was one critical question of law that was answered by the Federal Court:

Where the governing law of the contract is foreign law and the seat of arbitration [seat] is Malaysia, does the parties’ stipulation of Malaysia as the seat constitute an express agreement that the law governing the arbitration agreement is Malaysian law?

In answer to this question, the Federal Court answered as follows. Continue reading