Litigation & Arbitration

Where a project is completed, would a demand on the performance bond be unconscionable? Can an employer withhold certification of completion on the basis of unpaid LAD by the contractor and thereafter make a demand on the performance bond?

The primary issue in this case is whether a foreign arbitral award that has been converted into a judgment in the seat country may be enforced in Malaysia under the Reciprocal Enforcement of Judgments Act 1958 (“REJA”), or whether enforcement is confined to the Arbitration Act 2005 (“MAA”).

Can contracting parties mutually agree to vary the terms of the agreement, specifically the agreement on consideration? If a variation of the consideration clause is executed with the agreement of contracting parties, can the varied clause nevertheless be rendered null and void under Section 26 of the Contracts Act 1950 (“CA 1950”)? Further, where a party alleges that consideration is absent, must consideration be proved solely within the four corners of the written agreement, or may it also be established through extrinsic evidence?

Where multiple arbitrations are commenced under the same contract, disputes may arise not only on the merits but also on jurisdiction, including whether certain claims are arbitrable or have already been decided. Can a party who had earlier argued that a claim was premature later take the opposite position, asserting that the same claim had already been decided?

While the derivative action under section 347 Companies Act 2016 (“CA 2016”) allows shareholders to sue on behalf of the company, the oppression remedy under section 346 CA 2016 enables them to sue in their own capacity, but only if the harm suffered is distinct and personal.

When a construction contract is silent on extensions of time, does this mean that time is no longer of the essence, or can the courts still imply an EOT clause to give effect to the parties’ intentions?

It is not uncommon for a group of companies to deploy multiple entities within the group to carry out a project undertaken by one of its companies (the “Principal Company”). This often occurs when assistance from other group entities is required to support the performance of a contract signed by the Principal Company. But what if the main agreement signed by the Principal Company contains an arbitration clause, while the other entities assisting in contract performance are not parties to that agreement?

What if the dispute resolution clause under the contract gives the parties the option to either arbitrate or litigate in Court? Can such a clause still be considered as an arbitration agreement? If so, would it be “null and void, inoperative or incapable of being performed” due to lack of certainty?

Could an application to set aside an award be sustained on the ground of a failure to provide reasons, assuming the parties had agreed to adopt the UNCITRAL or AIAC Rules? If on a reading of the award, it appears that the Tribunal had disregarded parties’ submissions or without considering the merits of parties’ submissions, would that tantamount to a breach of natural justice? Whilst natural justice does not require the Tribunal to respond to all of parties’ submissions, would the failure to address significant issues, which could have impacted the outcome of the award, constitute a breach of natural justice?

View PDF 30th April 2025ISSUESThe English Court of Appeal decision of Salford Estates (No 2) Ltd v Altomart Ltd (No 2) [2014] EWCA Civ 1575 (“Salford”) propounds a lower threshold…

View PDF 26th February 2025ISSUESAs long as there is a valid arbitration agreement that is capable of performance, a stay of proceedings pending reference to arbitration shall be granted pursuant…

View PDF 24th January 2025ISSUESUnder the Arbitration Act 2005 (“AA 2005”), an award made by the Arbitral Tribunal pursuant to an arbitration agreement shall be final and binding. In this…

View PDF 30th December 2024 ISSUES The arbitral tribunal may determine the disputes of the parties in 2 different tranches, where the first tranche will be a determination on liability…

View PDF 30th September 2024ISSUESSection 9(5) of the Arbitration Act 2005 (“AA 2005”) provides that, where a contract refers to a document containing an arbitration clause, such reference would constitute…

View PDF 28th August 2024ISSUESWhere the underlying contract in the disputes before the Court contains an arbitration clause / agreement, the Defendant may apply for a stay of proceedings pending…

View PDF 31st July 2024ISSUESPrior to presentation of a winding up petition, the creditor may serve a Statutory Notice of Demand, or what is commonly known as Winding Up Notice, on…

View PDF 28th June 2024 ISSUES For the purposes of computing limitation in arbitration, limitation stops running when the claimant commences arbitration by serving the respondent a written notice to…

View PDF 21st February 2024ISSUESIt is not uncommon for Defendants to request for extension of time to file their defence, especially when the nature of the Plaintiff’s claim is technical…

Often time, contracting parties would agree to refer their contractual disputes to arbitration and an arbitration clause would be inserted into the contract. Arbitration clauses are also commonplace in most standard form of construction contracts. These arbitration clauses are known as arbitration agreement and are treated as a standalone agreement which would survive termination of the main contract.