Arbitration is a form of alternative dispute resolution based on agreement of parties. Courts conventionally choose not to intervene in arbitration proceedings because party autonomy prevails.

S 8 of the Arbitration Act 2005 (“AA 2005”) provides that “(no) court shall intervene in matters governed by this Act, except where so provided in this Act”. The underlying philosophy is that the court will assist but not interfere in arbitral proceedings.

Hence, in Kembang Serantau Sdn Bhd v Jeks Engineering Sdn Bhd (2015), the Court concluded that it had no jurisdiction to entertain applications for extension of time because there was no express provision in the AA 2005 for such purpose. Similarly, in Magnificient Diagraph Sdn Bhd v JWS Ariatektura Sdn Bhd (2009), the Court refused to decide on issues of costs and expenses as such matters fall within the jurisdiction of the arbitrator.

Attempts by parties to invoke the inherent jurisdiction of the Court to meddle with the jurisdiction of the arbitrator had also failed (Twin Advance (M) Sdn Bhd v Polar Electro Europe BV, 2013). Hence, so long as there is an arbitration clause, it is an almost certainty for a stay to be granted under s 10 AA 2005 (Sunway Damansara Sdn Bhd v Malaysia National Insurance Bhd & Anor, 2008).

In conclusion, the Malaysian courts have been consistent in minimising its intervention in arbitration matters, and have refrained from exercising general or residual powers consistent with the intention of s 8 AA 2005.

This write-up is prepared by Liew Xiang Yi ([email protected]), pupil in chambers, under the supervision of Chan Kheng Hoe ([email protected]).

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