Member Article

Dear valued clients, colleagues and friends,

Our Arbitration and Mediation partners Rabindra S. Nathan, Rodney Gomez and K. Shanti Mogan have co-authored the Malaysian chapter of The Legal 500 Country Comparative Guides: International Arbitration 2021.

The Arbitration Act 2005 (“AA 2005”) applies to arbitration in Malaysia. Parts I, II and IV of the AA 2005, comprising sections 1 to 5, sections 6 to 39 and sections 47 to 51, are of mandatory application in respect of both domestic and international arbitrations where the seat of arbitration is in Malaysia.

Examples of mandatory legislative provisions that apply in Malaysia are as follows:

• Any dispute on which parties have agreed to arbitrate under an arbitration agreement can be determined by arbitration unless it is contrary to public policy or the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia (section 4, AA 2005).
• Parties must be treated with equality and each party must be given a fair and reasonable opportunity of presenting that party’s case (section 20, AA 2005).
• Provisions which are aimed to promote the freedom of choice enjoyed by the parties. For example, the parties are free to:

- determine the number of arbitrators (section 12(1), AA2005);

- agree on a procedure for the appointment of the arbitrator(s) (section 13(2), AA 2005);

- agree on the procedure to be followed by the arbitral tribunal in conducting the arbitration (section 21(1), AA 2005).

• A court must stay proceedings that are the subject of an arbitration agreement and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed (section 10(1), AA 2005).

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