1. ) Samalaju Industries Sdn Bhd v Malaysian Phosphate Venture Sdn Bhd (WA-24NCC(ARB)-17-05/2024)

Content

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA (COMMERCIAL DIVISION) ORIGINATING SUMMONS NO: WA-24NCC(ARB)-17-05/2024

Preamble

Pursuant to the terms of the Shareholders’ Agreement, 1st Plaintiff, Samalaju Industries Sdn Bhd (“SISB”) and AESB took up shares in MPAS for the purpose of implementing a joint venture project to construct and operate an integrated phosphate complex for manufacturing of food, feed and fertilizer phosphate products at the Samalaju Industrial Park in Sarawak (“Integrated Phosphate Project”).

Schedule

Schedule 4(B) - Reserved Matters requiring affirmative vote of SISB, MPVSB and AESB … (c) any issue or allotment of shares, debentures, convertible notes, options or other equity or debt securities in the Company, or the grant of any option or right to subscribe for any Shares, the making of calls on the Shares, the forfeiture of the Shares or other securities in the Company or convert any instrument into such shares. (d) any increase, reduction, conversion or other alteration in the authorized or issued and paid up share capital of the Company.” Alleged Breach of Shareholders’ Agreement by SISB and MPAS claimed by MPVSB 11. MPVSB also claims that the SISB had also breached the terms of the Shareholders’ Agreement based on the following allegations: - (i) MPVSB nominated directors were unlawfully removed from the Board of MPAS – breaches of clause 7.3, clause 7.2.1 clause 8.5.2 read together with Schedule 6(B), paragraph B of the Shareholders’ Agreement. (ii) Refusal to allow MPVSB to appoint its nominees on the Board of MPAS – breaches of clause 7.2.1 of the Shareholders’ Agreement. (iii) Unlawfully appointed Shahrudin bin Abd Rahmad as Managing Director of MPAS on 11-1-2023 without the approval of MPVSB – breaches of clause 6.1.5 and clause 8.5.2 read together with

Schedule

Schedule 6(B), paragraph (b) of the Shareholders’ Agreement. (iv) Transfer of MPAS shares by SISB to CMSMS – breaches of clause 20.1.1, clause 15.1 and clause 15.6 of the Shareholders’ Agreement. (v) Wrongful increase in the share capital and capital call of MPAS in August 2022 – breaches of 8.3, clause 8.5, clause 10.4, clause 10.7 of the Shareholders’ Agreement. (vi) Unlawful allotment and issuance of shares to SISB and CMSMS on 28-2-2023 – breaches of clause 10.7 read together with Schedule 4(B), paragraphs (c) and (d) of the Shareholders’ Agreement. (vii) Denied MPVSB’s right to access MPAS’ documents and information – breaches of clause 13.1 and clause 13.3 of the Shareholders’ Agreement. (viii) Commenced proceedings in the name of MPAS without the consent of MPVSB – breaches of clause 8.5.1 read together with Schedule 6(A), paragraph (d) of the Shareholders’ Agreement. 12. MPVSB also contends that the above breaches of the Shareholders’ Agreement also constitute oppressive conduct by SISB and that there is a breakdown of trust and confidence between MPVSB and SISB and that the affairs of MPAS have been unfairly dealt with by SISB. Notice to Arbitrate and Response 13. MPVSB has since issued a notice to arbitrate on SISB and MPAS dated 25-5-2023. 14. The remedies sought by MPVSB are inter alia as follows: - (i) A declaration that SISB and MPAS had breached the Shareholders Agreement in a manner oppressive towards MPVSB, unfairly discriminates against MPVSB, in disregard of MPVSB’s interest, and / or otherwise prejudicial to MPVSB. (ii) An order that SISB purchases MPVSB’s 86, 856,800 shares in MPAS at the price of RM 1.00 a share amounting to RM 86, 856, 800.00 or for such other sum as may be determined by the learned arbitrator. (iii) Damages to be assessed for MPVSB as against SISB and MPAS jointly and severally. 15. SISB issued its response to the arbitration as seen in the notice dated 25-6-2023. 16. In its response SISB states:- (i) That the issue in dispute did not fall within the scope of the agreement to arbitrate. (ii) That the claim is in substance a claim for oppression within the meaning of section 346, Companies Act 2016. (iii) That a claim for oppression falls exclusively within the jurisdiction of the High Court by virtue of section 346 of the Companies Act 2016. This is allegedly a statutory remedy that cannot be referred to arbitration and is contrary to public policy or otherwise pertains to a dispute that is not capable of settlement by way of arbitration under the laws of Malaysia and in particular section 4 of the Arbitration Act. (iv) That this intent was evident from the decision of the Federal Court in Auspicious Journey Sdn Bhd v Ebony Ritz Sdn Bhd & Ors [2021] 4 CLJ 721. (v) That the claim is misconceived as the breaches of the Shareholders’ Agreement is not a basis to bring a claim for oppression in reliance of Jet-Tech Materials Sdn Bhd & Anor v Yushiro Chemical Industry Co Ltd & Another appeal [2013] 2 CLJ 277 and Beh Chun Chuah v Paloh Medical Centre Sdn Bhd & Ors [1999] 7 CLJ 1. Application before the Arbitrator 17. Mr. Chan Leng Sun SC of Duxton Hill Chambers in Singapore was appointed as the sole arbitrator pursuant to the decision of the AIAC director on 7-9-2023. 18. SISB raised a preliminary objection on the jurisdiction and the scope of the agreement to arbitrate and parties agreed that this would be determined first as a preliminary question under section 18(7) of the Arbitration Act. 19. SISB argued that: - (i) The dispute was not arbitrable. (ii) The subject matter of the dispute was based on an alleged oppression against the MPVSB within the meaning of section 346 of the Companies Act. (iii) The legislative intent underlying section 346 of the Companies Act was allegedly to vest such issues to be within the exclusive jurisdiction of the High Court and only the High Court have the appropriate powers to determine such disputes and grant the appropriate remedies. This includes the remedy winding-up the company. (iv) The Federal Court had in its decision in Auspicious Journey Sdn Bhd v Ebony Ritz Sdn Bhd [2021] 4 CLJ 721 allegedly stated that section 346 of the Companies Act is a statutory remedy specifically enacted to protect minority members of companies and that involves public policy consideration that requires the determination of such dispute to fall within the sole jurisdiction of the Courts and not arbitration. (v) That section 346 of the Companies Act is different to that of those of other jurisdiction and therefore the decision of the Courts in Singapore seen in Tomolugen Holdings Ltd and another v Silica Investors and other appeals [2015] SCGA 17 should not be adopted in Malaysia. 20. After considering the objection raised by counsels for the SISB, the learned arbitrator decided that section 346 of the Companies Act does not preclude oppression claims from being arbitrated. The ruling of the learned arbitrator on the issue of jurisdiction and arbitrability of such claims was delivered on 19-4-2024. This Appeal under section 18(8) of the Arbitration Act 21. Dissatisfied with the decision of the learned arbitrator, SISB has since filed this appeal under section 18(8) of the Arbitration Act and under Order 69 of the Rules of Court 2012. B. Applicable Law 22. The challenge by SISB lies on the issue of whether the claims by MPVSB falls within the scope of the agreement to arbitrate and whether the subject matter is arbitrable. SISB contends that the issue of oppressive conduct as recognised by section 346 of the Companies Act 2016 cannot be arbitrated. The subject matter of this claim cannot be arbitrated and fall within the two exceptions recognised under section 4 of the Arbitration Act 2005 i.e. (i) an agreement to arbitrate such issues would be contrary to public policy; or (ii) that the subject matter of oppressive conduct is not capable of settlement by arbitration under the laws of Malaysia. 23. I reproduce section 4 of the Arbitration Act:- “Arbitrability of subject matter (1) Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless the arbitration agreement is contrary to public policy or the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia. (2) The fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration shall not, by itself, indicate that a dispute about that matter is not capable of determination by arbitration.” 24. I first refer to the decision of the Federal Court in Arch Reinsurance Ltd v Akay Holdings Sdn Bhd [2019] 1 CLJ 305, where the Court had to deal with the issue of whether the charge registered under the National Land Code can be stayed and be referred to arbitration pursuant to an agreement to arbitrate. One of the issues posed to the Federal Court was whether a charge under the National Land Code is arbitrable in accordance with section 4 of the Arbitration Act. 25. Abu Samah Nordin FCJ had this to say on this issue:- “[57] We were informed that there are no decided cases on the issue of arbitrability under s. 4 of the Arbitration Act 2005. Both sides had to rely on several decisions in foreign jurisdictions on this issue in support of their respective contentions. The following are some of the cases referred to us. [58] In Larsen Oil & Gas Pte Ltd v. Petroprod Ltd the Singapore Court of Appeal held that arbitrability was an important factor which ought to be taken into consideration when determining whether to grant a stay under s. 6(2) of the Singapore Arbitration Act. It would be a waste of time to proceed by way of arbitration if the subject matter was not arbitrable as the arbitral award would be liable to be set aside under s. 48(1)(b)(i) of the Singapore Arbitration Act. [59] In that case the respondent, Petroprod Ltd and its four subsidiaries entered into a management agreement with the appellant, Larsen Oil and Gas Pte Ltd, wherein the latter would provide management services to the former. Petroprod Ltd, a company incorporated in Cayman Islands, was subsequently placed in compulsory liquidation in Singapore. Prior to that, Petroprod Ltd and its subsidiaries had made certain payments to Larsen Oil and Gas Pte Ltd. The payments were made within two years of its insolvency. The law presumed that such payments were made with an intention to prefer Larsen Oil and Gas Pte Ltd as a creditor. The liquidators of Petroprod Ltd in Singapore commenced action to avoid certain payments made by Petroprod Ltd and its four subsidiaries to Larsen Oil and Gas Pte Ltd on the grounds that: (i) Payments by Petroprod Ltd amounted to unfair preference under ss. 98 and 99 of Bankruptcy Act (Cap. 20) read with s. 329(1) of the Companies Act (Cap 50); and (ii) Payments by the four subsidiaries to Larsen Oil and Gas Pte Ltd were made with intent to defraud it as a creditor of the subsidiaries. Larsen Oil and Gas Pte Ltd applied for a stay of the action pending arbitration pursuant to an arbitration clause in the management agreement. The High Court dismissed it on the grounds, inter alia, that the issues were not arbitrable. Larsen Oil and Gas Pte Ltd appealed to the Court of Appeal. The Court of Appeal dismissed it and affirmed the decision of the High Court, holding that the courts should treat disputes arising from the operation of statutory provisions of the insolvency regime per se as non-arbitrable even if the parties expressly included them within the scope of the arbitration agreement. [60] Larsen Oil & Gas Pte Ltd was considered in Fulham Football Club Ltd v. Richards And Another. The English Court of Appeal held that the issue of arbitrability could be raised as a ground in challenging an application for stay of proceeding under the English Arbitration Act 1996. In that case the petitioner, Fulham Football Club Ltd, filed a petition under s. 994 of the Companies Act 2006 against the Football Association Premier League Ltd (FAPL) complaining of unfair prejudice. The complaint was directed against its chairman's involvement in facilitating the transfer of Mr Crouch from Portsmouth to Tottenham. Fulham alleged that it is an implied term of the FAPL rules that members of the board of FAPL will comply with their fiduciary obligations and not act so as to prefer the interests of one member club over another. FAPL and its chairman applied for a stay of the proceedings pending arbitration. Vos J granted the stay. It was affirmed by the Court of Appeal, holding that a claim alleging unfair prejudice did not involve the making of a winding-up order. At para. 92 of its judgment Patten CJ said: if... there is no statutory restriction or rule of public policy which prevents the parties from agreeing to submit such disputes to arbitration it is not possible to read into the language of arbitration clause the limitation contended for. [61] In Tomolugen Holdings Ltd and Another v. Silica Investors Ltd And Other Appeals [2015] SGCA 57, the Singapore Court of Appeal, in dealing with s. 11 of the Singapore International Arbitration Act, held that there will ordinarily be a presumption of arbitrability so long as the dispute falls within the scope of an arbitration clause but it can be rebutted where: (i) Parliament intended to preclude a particular type of dispute from being arbitrated (as evidenced by either the text or the Legislative history of the statute in question); or (ii) It would be contrary to the public policy considerations involved in that type of dispute to permit to be resolved by arbitration. [62] In Larsen Oil and Gas Pte Ltd v. Petroprod Ltd, supra, the above conditions were satisfied. Similarly, in Four Pillars Enterprises Co Ltd v. Beiersdorf Aktiengesellschaft [1999] 1 SLR (R) 382 and in A Best Floor Sanding Pty Ltd v. Skyer Australia Pty Ltd [1999] VSC 170 the courts held that reliefs in the form of winding-up orders were not arbitrable. [63] Under s. 4(1) of the Arbitration Act 2005 a dispute which the parties agree to submit to arbitration is not arbitrable on ground of public policy. There is no universally accepted test on what is public policy. Different courts and different tribunals might have different views as to enforceability of contracts on ground of public policy: See Westacre Investments Inc v. Jugoimport - SDPR Holding Go Ltd And Others [1993] 3 All ER 864. [64] Russel on Arbitration 24th edn, at p. 71 para. 2 makes the following observation: Limits on arbitrability. There is no agreed definition of arbitrability and none is provided in the Arbitration Act 1996, although the Act does recognise the right of the court to refuse recognition or enforcement of an award that is in respect of a matter which is not capable of settlement by arbitration. There are also well recognised categories of dispute that may not be capable of being resolved by arbitration and certain underlying principles that can be identified in determining whether a matter is arbitrable. In particular, a dispute will generally not be arbitrable if it involves an issue of public policy, public rights or the interests of third parties, or where the dispute in question is clearly covered by a statutory provision which provides for inalienable access to the courts. In these cases, as the Court of Appeal has confirmed, "even the most widely drafted arbitration agreement will have to yield". [65] In the instant appeal before us, there was a clear intention of the parties as manifested by the subscription agreement and the bonds conditions that the appellant could enforce the security under the charge in the event of default by the respondent. There is no provision in the subscription agreement and the bonds conditions that they agree to have the dispute to be determined by arbitration first before the appellant could enforce the security under the charge. [66] A registered chargee under the NLC acquires an indefeasible title to the charged security: NKM Properties Sdn Bhd v. Rakyat First Merchant Bankers Bhd [1984] 1 CLJ 231; [1984] 1 CLJ (Rep) 302; [1986] 1 MLJ 44; The Co-Operative Central Bank Ltd v. Y & W Development Sdn Bhd [1997] 4 CLJ 170; [1997] 3 MLJ 373. Under s. 340(2) of the NLC the title or interest of the chargee shall not be indefeasible only in the three circumstances specified therein. Section 256 of the NLC confers a right on the chargee to apply for an order for sale of the charged security to recover the sum secured by the charge when the chargor fails to comply with the notice of demand in Form 16D. On any such application, the court shall order the sale of the charged security unless it is satisfied of the existence of cause to the contrary: Low Lee Lian v. Ban Hin Lee Bank Bhd [1997] 2 CLJ 36; [1997] 1 MLJ 77. The statutory right of the chargee to indefeasible title and to sell the charged security in the event of default by the chargor cannot be taken away by private agreement between them. The right of a chargee under the NLC applies to all chargees. Any attempt to take away or curtail the rights of the chargee by way of a private agreement is, in our view, contrary to public policy. [67] The NLC is a complete and comprehensive code of law governing the tenure of land in Malaysia and the incidence of it as well as other important matters affecting land: United Malayan Banking Corp Bhd v. Pemungut Hasil Tanah, Kota Tinggi & Another Case [1984] 2 CLJ 146; [1984] 1 CLJ (Rep) 51; [1984] 2 MLJ 87. In Kimlin Housing Development Sdn Bhd v. Bank Bumiputera (M) Bhd, it was held that the provisions of the NLC setting out the rights and remedies of parties under a statutory charge over land comprised in Pt XVI are exhaustive and exclusive and any attempt at contracting out of those rights unless expressly provided for in the Code - would be void as being contrary to public policy. Hence, the dispute triggered by the statutory notice of demand in Form 16D is not arbitrable under s. 4(1) of the Arbitration Act 2005.” 26. The above approach remains good law as seen in the recent decision of Court of Appeal in Asia Pacific Higher Learning Sdn Bhd v Stamford College (Malacca) Sdn Bhd [2024] CLJU 1598 where one of the issues raised concerns whether the dispute between parties is arbitrable in light of section 4 of the Arbitration Act. Lim Chong Fong CJA delivering the judgment of the Court of Appeal decided to follow the above decision to determine whether the dispute between parties is arbitrable under Malaysian law. 27. I further refer to the decision of See Mee Chun JCA in Padda Gurtaj Singh v Tune Talk Sdn Bhd & Ors [2022] 5 CLJ 335. In that case, it was argued for the Appellant that the power to either accept or reject the registration of shares under sections 106 and 107 of the Companies Act fall within the absolute jurisdiction of the Courts. It was argued that section 107 of the Companies Act states that such powers to register such shares lie solely on an application made before the Courts. As such, the issue of refusal to register such shares cannot be arbitrated as recognised under section 4 of the Arbitration Act. 28. The Court of Appeal after considering the said statutory provisos rejected the said argument. See Mee Chun JCA held: - “[89] Then comes s. 107(2) of the CA 2016 which we find confers a discretion on the court whether or not to register the shares. This is evident from the words "may" and "well founded". Such discretion can only be exercised after due enquiry into the reasons for the respondents' non-registration of the shares which necessarily has to lead to the pre-emption rights in the articles of association and SHA. The pre-emption rights are as in cl. 9 of the SHA, and arts. to 52 of the articles of association. [90] The language employed in the aforesaid statutory provisions do not expressly exclude arbitration and there has been no evidence put forth that it was the legislative intent to so exclude. There are no wider interests of third parties involved such as creditors as this only involve parties within SHA. We, therefore, find the statutory provisions as per ss. 106 and 107 of the CA 2016 are not an exception to arbitrability. [91] There can therefore, also be no issue of a statutory right being taken away by a private agreement to arbitrate or such statutory right rendering the matter incapable of arbitration.” 29. Reference should also be had to the decision of the Court of Appeal in Peninsula Education (Setia Alam) Sdn Bhd v Biaxis (M) Sdn Bhd (In Liquidation) [2024] CLJU 1662. In that case, one of the issues that had to be dealt with by the Court of Appeal concerns the arbitrability of the claims against the Respondent. 30. Lee Swee Seng JCA found that the dispute did not fall within the exception to the right to have disputes arbitrated as provided for in section 4 of the Arbitration Act 2005. His Lordship held:- “[60] Liquidation does not change the mode of resolving a dispute, whether it is via a pre-agreed arbitration or absent that, litigation in Court. Neither is liquidation opposed to arbitration for arbitration is nothing more than a way of determining if liability is established arising from a matter the subject of the arbitration agreement and if so what is the quantum when damages are being assessed. The Privy Council in Sian Participation Corp (supra) has helpfully explained the two concepts of liquidation and arbitration as follows: “90. Nor are the policies underlying the arbitration legislation which implement the Model Law in any way offended or infringed by a party to an arbitration agreement seeking the liquidation of a debtor party which fails to pay the debt. There is a policy of insolvency legislation that the liquidation route should not be pursued, or even threatened, against a company which genuinely disputes the debt on substantial grounds. Where there is such a dispute, the policy is that the creditor should first establish his claim, by having that dispute resolved in its favour, either by a judgment in court or, if there is an applicable arbitration agreement, by an arbitral award. 91. The clearest legislative signal about the boundary of the policy that a party to an arbitration agreement should arbitrate is the extent of the mandatory stay provision which implements article 8 of the Model Law. That identifies the extent of the negative obligation: not to seek resolution of a dispute in court. A winding up petition or similar application lies outside both that boundary and therefore the extent of the underlying policy. 92. None of the general objectives of arbitration legislation (efficiency, party autonomy, pacta sunt servanda and non-interference by the courts) are offended by allowing a winding up to be ordered where the creditor's unpaid debt is not genuinely disputed on substantial grounds. To require the creditor to go through an arbitration where there is no genuine or substantial dispute as the prelude to seeking a liquidation just adds delay, trouble and expense for no good purpose. Party autonomy and pacta sunt servanda are not offended because seeking a liquidation is not something which the creditor has promised not to do. And by ordering a liquidation the court is not resolving anything about the debt, nor interfering with the resolution of any dispute about it. 93. Above all there is nothing anti-arbitration in this conclusion. In most agreements where one party is likely to be the creditor, (such as any typical loan agreement), it is that party which will generally have the whip-hand in choosing or vetoing the detailed terms of the agreement. Such a party is much more likely to agree to include an arbitration clause if it does not impede a liquidation where there is no genuine or substantial dispute about the debt. And where there is such a dispute, then arbitration will prevail as the means of resolution.” (emphasis added) … “[65] The AA 2005 in s 4 recognises that there are certain subject matters that are not arbitrable under the law or which arbitration agreement would be contrary to public policy. Some of these matters are those with respect to the grant of a dissolution of marriage, orders with respect to adoption, judicial review matters involving certiorari and mandamus, contempt of court, registration and expunging of patent and other Intellectual property rights, order for sale under the National Land Code, issues arising out of liquidation, judicial management or receivership under the Companies Act 2016, to mention but a few. [66] Thus, matters with respect to an order for sale would have to be canvassed in the Court though the security over land could be part of a facility agreement where there is an arbitration clause as was held in Arch Reinsurance Ltd v. Akcay Holdings Sdn Bhd [2019] 1 CLJ 305; [2018] MLJU 2117. [67] The Singapore Court of Appeal's decision in Larsen Oil & Gas Pte Ltd v. Petrograd Ltd [2011] SGCA 21 can be distinguished from the present case as there the liquidator sought the avoidance of payment it had made to the appellant on the grounds that these payments amounted to unfair preferences or transaction at an undervalue within the meaning of their Bankruptcy Act read with their Companies Act. The Court held that the claim was non-arbitrable as the disputes were arising from the operation of statutory provisions of the insolvency regime per se. [68] Our present dispute is one arising pre-insolvency and not an insolvency dispute which requires the Court's determination under the Companies Act 2016 where Parliament had carved out these issues from arbitration and made it non-arbitrable as a matter of public policy. See also the case of Tomolugen Holdings Ltd and another v. Silica Investors Ltd and other appeals [2015] SGCA 57. [69] Our section 4 AA 2005 reads as follows: 4. “Arbitrability of subject matter (1) Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless the arbitration agreement is contrary to public policy or the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia. (2) The fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration shall not, by itself, indicate that a dispute about that matter is not capable of determination by arbitration.” (emphasis added) [70] The parties are still at the very preliminary stage of the Contractor having filed its claim in Court and the Employer, upon entering Appearance had applied for a stay of the Court proceedings on ground of a valid arbitration agreement which is not null and void, inoperative or incapable of performance. In brief, both parties are at the stage of setting forth their claims against each other. The issue is purely on whether there are monies owing by the Employer to the Contractor under the PAM Contract and it so, what is the amount. [71] As and when the claim is brought the Employer may raise the defence of set-off and a counterclaim with respect to the delay and defects if any and the amount of the LAD claim as well as damages for the Contractor's failure to complete the Works under the PAM Contract as a result of a determination of its employment due to its insolvency. These are not issues peculiarly within the province of a winding-up Court but rather issues for the Arbitral Tribunal to decide and if there is no arbitration agreement, then it would be the civil Courts that would hear and decide the matter. [72] There are no issues that have encroached onto the winding-up Court for its decision, be it the issue of whether if a set-off is raised by the Employer, should it be allowed to reduce the Contractor's claim accordingly or whether the amount owing by the Contractor to the Employer should be treated as unsecured and falling into the general pool of unsecured creditors to be distributed pari passu. [73] As and when these issues have to be decided, the arbitral tribunal should be able to decide as matters falling within the terms of reference to arbitration as was so decided by the arbitrator in UDA Land case (supra). [74] This is not a matter where the issue is purely within the purview of the Winding-up Court as in involving other creditors that do not have an arbitration agreement with the Employer. Neither is it a matter that is not arbitrable as in whether for example Goods and Services Tax ("GST") collected or amount owing by the Contractor to the Royal Malaysian Customs would be treated as preferential debt or dispute on pari passu ranking of debts or whether certain sums of monies are held in trust.” 31. It is also instructive for this Court to consider the decision of the Courts in Singapore when dealing with section 11 of the Singapore International Arbitration Act which is almost equivalent to our section 4 of the Arbitration Act 2005. For ease of reference, I again reproduce section 4 of our Arbitration Act and compare that to section 11 of the Singapore International Arbitration Act. (i) Section 4 of the Malaysian Arbitration Act (ii) Section 11 of the Singapore International Arbitration Act (1) Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless the arbitration agreement is contrary to public policy or the subject matter (1) Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless it is contrary to public policy to do so. of the dispute is not capable of settlement by arbitration under the laws of Malaysia. (2) The fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration shall not, by itself, indicate that a dispute about that matter is not capable of determination by arbitration. (2) The fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration does not, of itself, indicate that a dispute about that matter is not capable of determination by arbitration. 32. The Singapore Court of Appeal in Larsen Oil and Gas Pte Ltd v Petropod Ltd [2011] 3 SLR 414, had to consider the issue of whether a dispute that fall within the insolvency regime in particular sections 98 and 99 of the Bankruptcy Act was arbitrate. VK Rajah JA delivering the decision of the Singapore Court of Appeal, inter alia, held:- “[44] The concept of non-arbitrability is a cornerstone of the process of arbitration. It allows the courts to refuse to enforce an otherwise valid arbitration agreement on policy grounds. That said, we accept that there is ordinarily a presumption of arbitrability where the words of an arbitration clause are wide enough to embrace a dispute, unless it is shown that parliament intended to preclude the use of arbitration for the particular type of dispute in question (as evidenced by the statute's text or legislative history), or that there is an inherent conflict between arbitration and the public policy considerations involved in that particular type of dispute. … [45] .... Many of the statutory provisions in the insolvency regime are in place to recoup for the benefit of the company's creditors losses caused by the misfeasance and/or malfeasance of its former management. This is especially true of the avoidance and wrongful trading provisions. This objective could be compromised if a company's pre-insolvency management had the ability to restrict the avenues by which the company's creditors could enforce the very statutory remedies which were meant to protect them against the company's management. It is.... not [an] unimportant consideration that some of these remedies may include claims against former management who would not be parties to any arbitration agreement. The need to avoid different findings by different adjudicators is another reason why a collective enforcement procedure is clearly in the wider public interest.” 33. The Singapore Court of Appeal had the opportunity to consider whether a claim for oppressive conduct that is recognised under section 216 of the Singaporean Companies Act is arbitrable in Tomolugen Holdings Ltd and another v Silica Investors and other appeals [2015] SGCA 57. 34. Sundraresh Menon CJ delivering the judgment of the Singapore Court of Appeal had this to say on this issue:- “[84] In our judgment, a claim for relief under s. 216 of the Companies Act stands on a different footing from the liquidation of an insolvent company or avoidance claims that arise upon insolvency because the former generally does not engage the public policy considerations involved in the latter two situations. There is certainly nothing in the text of s. 216 to suggest an express or implied preclusion of arbitration. Nor does the legislative history and statutory purpose of the provision suggest that a dispute over minority oppression or unfair prejudice is of a nature which makes it contrary to public policy for the dispute to be adjudicated by an arbitral tribunal. … [103] In our judgment, the approach taken by the courts in England (see Fulham FC v. Richards) and in Hong Kong SAR (see Re Quiksilver Glorious Sun) commends itself to us because it seeks to strike a balance between, on the one hand, upholding the agreement of the parties as to how their disputes are to be resolved and, on the other, recognising that there are jurisdictional limitations on the powers that are conferred on an arbitral tribunal. We accept that this has the effect of enhancing the procedural complexity of a dispute which is covered by an arbitration agreement where one or more of the reliefs sought is beyond the arbitral tribunal's powers to grant, and such complexity will be further exacerbated if, in addition, the dispute concerns other parties who are not party to the arbitration agreement in question. It is to this that we turn next; but we are satisfied that an arbitral tribunal's inability to grant certain reliefs which may be sought would not in itself render the subject matter of the dispute non arbitrable.” 35. It would be remiss of me not to consider the decision of the English Court of Appeal in Fulham Football Club (1987) Ltd v Richards [2011] EWCA Civ 855 where the issue of whether a claim for unfair prejudice filed under section 994 of the UK Companies Act 2006 is arbitrable. 36. I first reproduce section 1 of the UK Arbitration Act 1996:- 1. General Principles The provisions of this Part are founded on the following principles, and shall be construed accordingly— (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; (c) in matters governed by this Part the court should not intervene except as provided by this Part. 37. Patten LJ stated as follows:- “[41] Not surprisingly, the source of such restrictions cannot be found in the AA 1996 or what might be termed the law of arbitration itself. The statements of principle set out in the textbooks referred to above are simply recognitions that the scope of even the most widely drafted arbitration agreement will have to yield to restrictions derived from other areas of the law. Sections 9(4) and 81 of the AA 1996 confirm this. But the source of those restrictions is to be found elsewhere. The judgment in the Exeter City case, which I will come to shortly, is based on a principle of inalienable access to the Companies Court which can only be derived from the CA 2006. One can point to a number of examples of statutory intervention designed to preserve a right of access to the courts. In the field of matrimonial law post-nuptial agreements dealing with maintenance on any subsequent separation were held to be unenforceable on grounds of public policy insofar as they purported to remove the right of the parties to apply to the Court for financial relief. This reservation is now statutory: see Hyman v Hyman [1929] AC 601 and ss.34-36 of the Matrimonial Causes Act 1973. In relation to employment and discrimination, there are statutory restrictions on the enforceability of any agreement which excludes or limits an employee's access to the employment tribunal: see Employment Rights Act 1996 s.203 and Equality Act 2010 s.144(1) as discussed in Clyde & Co LLP v Van Winkelhof [2011] EWHC 668 (QB). [42] These examples show that in a number of areas the right of the party to apply to the court or tribunal is expressly preserved. Such a provision is inconsistent with an agreement to submit the dispute to binding arbitration and would therefore defeat any application for a stay of the proceedings either under s.9 or under the inherent jurisdiction. Vos J at one point in his judgment (para. 8) adopted Mr Marshall's way of characterising the issue as whether a member of a company can agree to remove or diminish, by contract, his right to present a petition under s.994 based on unfair prejudice: i.e. to contract out of the Act. This may be an inaccurate way of formulating the question insofar as most arbitration agreements will not expressly exclude any reference to the Court. But the combined effect of an arbitration agreement which covers the dispute and s.9(4) of AA 1996 is that the agreement to refer the dispute to arbitration will exclude the parties' right to bring or continue legal proceedings covering the same subject matter unless one of the exceptions contained in s.9(4) is established. I will deal later in this judgment with the separate question of whether any stay should be a permanent one or should at least be the subject of re-consideration in a case where the arbitrators consider that the winding-up of the company is the appropriate relief but are, of course, themselves unable to make such an order. … [43] There are no provisions in the CA 2006 which correspond to those I have referred to in other areas of the law and if a company dispute about unfair prejudice is to be held to be non-arbitrable then Fulham has to rely on either an implied restriction in the statute or some equivalent rule of public policy based on the considerations referred to in paragraph 40. [44] Section 994 provides that: “(1) A member of a company may apply to the court by petition for an order under this Part on the ground— (a) that the company's affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least himself), or (b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial.” [45] If the petitioner establishes unfair prejudice to at least himself as a member, the Court has wide powers. Section 996 provides that: “(1) If the court is satisfied that a petition under this Part is well founded, it may make such order as it thinks fit for giving relief in respect of the matters complained of. (2) Without prejudice to the generality of subsection (1), the court's order may— (a) regulate the conduct of the company's affairs in the future; (b) require the company— (i) to refrain from doing or continuing an act complained of, or (ii) to do an act that the petitioner has complained it has omitted to do; (c) authorise civil proceedings to be brought in the name and on behalf of the company by such person or persons and on such terms as the court may direct; (d) require the company not to make any, or any specified, alterations in its articles without the leave of the court; (e) provide for the purchase of the shares of any members of the company by other members or by the company itself and, in the case of a purchase by the company itself, the reduction of the company's capital accordingly.” ….. [83] It is therefore open to us to decide whether the provisions of s.994 are to be construed as restricting the resolution of unfair prejudice disputes to the exclusive jurisdiction of the court free of any binding authority. I have already set out my own reasons for preferring the view that disputes of this kind which do not involve the making of any winding-up order are capable of being arbitrated. Although not necessary for the resolution of this appeal, I also take the view, as Austin J did in the ACD Tridon case, that the same probably goes for a similar dispute which is used to ground a petition under s.122(1)(g) to wind up the company on just and equitable grounds. In those cases the arbitration agreement would operate as an agreement not to present a winding-up petition unless and until the underlying dispute had been determined in the arbitration. The agreement could not arrogate to the arbitrator the question of whether a winding-up order should be made. That would remain a matter for the court in any subsequent proceedings. But the arbitrator could, I think legitimately, decide whether the complaint of unfair prejudice was made out and whether it would be appropriate for winding-up proceedings to take place or whether the complainant should be limited to some lesser remedy. It would only be in circumstances where the arbitrator concluded that winding-up proceedings would be justified that a shareholder would then be entitled to present a petition under s.122(1)(g). In these circumstances the court could be invited to lift any stay imposed on proceedings imposed under s.9(4). In much the same way, it would, I think, be open to an arbitrator who considered that the proper solution to a dispute between a shareholder and the company was to give directions for the conduct of the company's affairs to authorise the shareholder to seek such relief from the court under s.994. But such cases are likely to be rare in practice. If the relief sought is of a kind which may affect other members who are not parties to the existing reference, I can see no reason in principle why their views could not be canvassed by the arbitrators before deciding whether to make an award in those terms. Opposition to the grant of such relief by those persons may be decisive. Similarly if the order sought is one which cannot take effect without the consent of third parties then the arbitrators' hands will be tied. [84] But, as explained earlier in this judgment, these jurisdictional limitations on what an arbitration can achieve are not decisive of the question whether the subject-matter of the dispute is arbitrable. They are no more than the practical consequences of choosing that method of dispute resolution: see Société Commerciale de Réassurance v ERAS (International) Ltd [1992] 1 Lloyd's Rep 570; Wealands v CLC Contractors Ltd [1999] 2 Lloyd's Rep 739. [85] This leaves for consideration what amounts to the alternative argument that regardless of any general considerations of public policy, s.994 ("a member of a company may apply to the Court") should be construed as granting an unfettered right of access. This would have to be an implied restriction but, aside from the argument that it creates a class remedy which I have already dealt with, Mr Marshall also relies on a comparison between the treatment of s.994 relief in the context of companies and the equivalent provisions which apply to limited liability partnerships ("LLPs"). [86] Under the Limited Liability Partnership Act 2000 an LLP is given the status of a body corporate and the members are liable to contribute to its assets on a winding up: see s.1(1), (4). The Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009 ("the 2009 Regulations") which took effect on 1st October 2009 apply ss.994-996 of the CA 2006 to LLPs but in a modified form. As modified, s.994(3) provides that: “The members of an LLP may by unanimous agreement exclude the right contained in subsection (1) either indefinitely or for such period as is specified in the agreement. The agreement must be recorded in writing.” [87] Mr Marshall makes the point that no equivalent opt-out was given to the members of companies when s.994 of the CA 2006 came to be amended in 2008 by the insertion in the form of s.994(1A) of provisions dealing with the removal of a company's auditors. It is to be inferred from this, he says, that Parliament considered that the provisions of s.994 should be immutable in the case of companies. Similarly the recommendations of the Company Law Review Steering Group contained in its 2001 Report (Modern Company Law for a Competitive Economy) which favoured the promotion of ADR including arbitration for the resolution of shareholder disputes were not taken up. By 2008 Exeter City had been decided but Parliament chose to make no changes to the CA 2006 to counter its effect. [88] I am not persuaded that we should draw any inferences from these aspects of the legislative history of the CA 2006. The absence of any change to the provisions of s.994 following the decision in Exeter City cannot be taken as some kind of affirmation of the correctness of that decision, let alone a statutory embodiment of its effect. The Act remained unchanged throughout the period. The consequence is that if Exeter City was correctly decided then there has been no statutory change to displace it. Conversely if it was, as I believe, wrongly decided then we are free to overrule it unhindered by any alteration in the relevant legislation. Similarly, although the provisions of the 2009 Regulations in relation to LLPs are interesting, the absence of any opt-out provision in relation to companies merely confirms that this form of statutory relief remains available to contributories. Again, it cannot justify giving to the provisions of s.994 (which remain unchanged) a meaning which they cannot otherwise bear.” 38. It is also important to note what was said by Lord Justice Longmore in the same case: - “[96] In relation to the second question, it is clear that there is no express requirement in the CA 2006 that matters arising on an unfair prejudice petition under section 994 should not be referred to arbitration. Nor do I consider that there is any implied prohibition of arbitration. It is true that section 994(1) empowers a company member "to apply to the court by petition" and section 996(1) provides that "if the court is satisfied that a petition … is well-founded, it may make such order as it thinks fit for giving relief". But the fact that a statutory power, which a court would not have at common law apart from the statutory provision, is given to the court does not mean that an arbitrator, to whom a dispute is properly agreed to be referred, does not have a similar power. Power to make awards of monetary sums as between joint tortfeasors and between those who together have acted in breach of separate contracts are given to "the court" by various statutory provisions but it cannot be suggested that arbitrators are prohibited from making such awards: see Wealands v ICLC Contractors Ltd [1999] 2 Lloyd's Rep 739 paras. 16-18. Such awards are frequently made. If, therefore, one looks at the actual wording of the relevant sections of the CA 2006, there is no ground for supposing that there is any implicit prohibition on agreeing to refer an allegation of unfair prejudice to arbitration. [97] Thirdly, does public policy prohibit or invalidate an agreement to refer to arbitration the question whether a company's affairs are being (or have been) conducted in a manner that is unfairly prejudicial to the interest of at any rate some of its members? If public policy does prohibit such an agreement, there could of course be no question of the court staying any petition seeking relief under sections 994-996 of the CA 2006 because the court would be satisfied (within the meaning of section 9(4) of the AA 1996) that the arbitration agreement would, to the extent that it purported to apply to unfair prejudice petitions, be "null and void" or, perhaps, "inoperative". [98] It is this question that is at the heart of the appeal and I would, for my part, derive some guidance from the principle set out in section 1(b) of the AA 1996 namely "the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest". To the extent therefore that public policy has a part to play it can only be as a "safeguard … necessary in the public interest". [99] This is a demanding test and I cannot see that it is necessary in the public interest that agreements to refer disputes about the internal management of a company should in general be prohibited; nor can I see any reason why it is necessary to prohibit arbitration agreements to the extent that they, in particular, apply to disputes whether a company's affairs are being (or have been) conducted in a manner unfairly prejudicial to the interests of its members. …. [101] For my part I find it difficult to see why an arbitrator should feel any such inhibition as Mr Marshall suggested since there is no reason why any member of the FAPL who considered that its interests might be affected should not be able to give such evidence to the arbitrator as it wanted to. But even if any inhibition did exist, that could not amount to a reason why in the public interest an agreement to refer an unfair prejudice dispute should be prohibited. It would just be an incident of the agreement and an example of a reason why in some circumstances arbitration could be less satisfactory than court proceedings. The risk of that occurring cannot mean that it is necessary in the public interest to prohibit such agreements. [102] The second reason is likewise somewhat fanciful but, again, the risk that an award might ineffectively purport to affect parties other than the immediate parties to the arbitration and, to that extent, be unenforceable cannot render it necessary that agreements to refer unfair prejudice allegations should be banned as a matter of public policy. [103] It is well settled that the fact that an arbitrator cannot give all the remedies which a court could does not afford any reason for treating an arbitration agreement as of no effect, see Eras Eil Actions [1992] 1 Lloyd's Rep 570, 610. The inability to give a particular remedy is just an incident of the agreement which the parties have made as to the method by which their disputes are to be resolved. The reason put forward by Mr Marshall for regarding the FAPL Rules and FA Rules as inapplicable to unfair prejudice petitions (because of the effect any award might have or might not have on third parties) is of even less substance than the supposed inability of an arbitrator to give any particular remedy. [104] For these reasons and those given by Patten LJ I agree the judge reached the right conclusion. I would also commend his reluctance to treat the hearing before him as a foregone conclusion in the light of the decision of Exeter City merely because it was a second decision of a judge at first instance which had taken into account (and differed from) an earlier decision of a first instance judge. First instance judges have the luxury (which we do not) of not being bound by each other's decisions and, particularly in a specialist jurisdiction, it is usually useful to this court to have a considered view even if it is at variance with the latest first instance decision. I must confess to being much assisted by the views of Vos J in coming to my own conclusion in this case.” 39. I have also had the opportunity to consider the decision of the Hong Kong Court in Dickson Valora Group (Holdings) Co Ltd and another v Fan Ji Qian [2019] HKCFI 482. 40. In that case, a shareholder applied to stay an unfair prejudice proceeding brought by another shareholder in favour of arbitration. The Hong Kong Court after considering the agreement to arbitrate found that the dispute did not fall within the scope of the agreement to arbitrate and that the claim did not fall within the scope of the shareholders’ agreement. Instead, the petitioner who filed the claim of unfair prejudice is based solely on the Hong Kong company law and the articles of association of the said company. 41. I further refer to the decision of the Privy Council in FamilyMart China Holding Co Ltd v Ting Chuan (Cayman Islands) Holding Corporation [2023] UKPC 33. In that case, as summarised by Lord Hodge: “[1] This appeal raises the question whether an agreement to settle disputes arising out of a shareholders’ agreement by arbitration may prevent a party to that agreement from pursuing a petition to wind up the company whose management is the focus of those disputes. The other side of the coin is whether an application to the Grand Court to wind up that company on the just and equitable ground makes all matters which are the subject matter of those court proceedings are non-arbitrable, thereby rendering inoperative the agreement to resolve such disputes by arbitration.” 42. Section 3 (3) of the Cayman Islands Arbitration Act is as follows:- “(3) The provisions of this Law are founded on the following principles, and shall be construed accordingly – (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial arbitral tribunal without undue delay or undue expense; (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; and (c) in matters governed by this Law the court should not intervene except as provided in this Law.” 43. The Privy Council went through substantial case law on this area and found the following where Lord Hodge held: - “[58] The court in considering such an application adopts a two-stage process. First, the court must determine what the matters are which the parties have raised or foreseeably will raise in the court proceedings, and, secondly, the court must determine in relation to each such matter whether it falls within the scope of the arbitration agreement. (See Tomolugen, para 42 above; WDR Delaware, para 47 above and Sodzawiczny, para 50 above). [59] The court must ascertain the substance of the dispute or disputes between the parties. This involves looking at the claimant’s pleadings but not being overly respectful to the formulations in those pleadings which may be aimed at avoiding a reference to arbitration. It involves also a consideration of the defences, if any, which may be skeletal as the defendant seeks a reference to arbitration, and the court should also take into account all reasonably foreseeable defences to the claim or part of the claim. (See Lombard North Central, para 37 above; Quiksilver, para 38 above, Tomolugen, para 42 above, WDR Delaware, para 47 above; and Sodzawiczny, para 53 above). …. [69] …The Board is concerned with the exception that the agreement is inoperative. The essence of the dispute between the parties on this appeal turns on this question. It is whether the arbitration agreement is inoperative or, in other words, the matters at issue between the parties are incapable of being settled by arbitration or the remedies sought are unavailable to an arbitral tribunal. [70] On the authorities there are two broad circumstances in which an arbitration agreement may be inoperative. The first is where certain types of dispute are excluded by statute or public policy from determination by an arbitral tribunal. The second is where the award of certain remedies is beyond the jurisdiction which the parties can confer through their agreement on an arbitral tribunal. The Board refers to the first type as “subject matter non-arbitrability” and to the second as “remedial non-arbitrability”. [71] Subject matter non-arbitrability can arise where the state intervenes by statute to preserve a right of access to the courts. Examples of such in English law in the field of employment and discrimination can be found in section 203 of the Employment Rights Act 1996 and section 144(1) of the Equality Act 2010, which, subject to specified exceptions, prevent parties by agreement from contracting out of an employee’s right to have access to an employment tribunal, or in the latter Act the courts. Subject matter non-arbitrability may also arise as a result of public policy considerations. In the Singaporean case of Larsen Oil and Gas Pte Ltd v Petropod Ltd [2011] 3 SLR 414, (“Larsen”) V K Rajah JA, delivering the judgment of the Singapore Court of Appeal, at para 44 recognised two grounds for excluding from arbitration a dispute which fell within the scope of an arbitration agreement. The first was where the legislature had precluded the use of arbitration to determine the particular type of dispute and the second was where “there is an inherent conflict between arbitration and the public policy considerations involved in that particular type of dispute”. Larsen was concerned with claims by the liquidator of an insolvent company for the avoidance of unfair preferences and payments made with an intention to defraud a creditor which arose only on the onset of insolvency and could be pursued by the liquidator of the insolvent company for the benefit of the company’s creditors. The court refused the application by Larsen, the recipient of the alleged preference, to stay the legal proceedings for arbitration of the dispute on grounds of public policy, namely that it would affect the substantive rights of the company’s creditors and undermine the policy aims of the insolvency regime. ….. [74] It would be wrong, however, to overstate the differences of approach in the commercial sphere between jurisdictions which share the same common law heritage. In the Board’s view, the jurisprudence of the courts of other common law jurisdictions in this sphere can provide the generally accepted principles for the commercial law of the Cayman Islands. It is also relevant to bear in mind, when considering these commentaries, the relatively granular meaning of “matter” in the FAAEA, which the Board discussed in paras 61-63 above, when addressing the question whether a matter is excluded from arbitral determination by subject matter non-arbitrability. [75] The second circumstance in which an arbitration agreement may be inoperative, ie where there is remedial non-arbitrability, is concerned with the circumstance in which the parties have the power to refer matters to arbitration but cannot confer on the arbitral tribunal the power to give certain remedies. In the common law world there appears to be a general consensus that an arbitration agreement cannot confer on an arbitral tribunal the power to make an order to wind up a registered company on the application of a creditor where the company is insolvent and there is strong authority in support of such an exclusion when the application is by a contributory where the company is solvent. This is because the power to wind up a company lies within the exclusive jurisdiction of the courts, which alone have the discretion as to whether to make such an order. See in English law, Fulham at paras 76 and 83, in Hong Kong, Quiksilver para 14, in Singapore, Tomolugen para 83 (in relation to a creditor’s application), in Australia, WDR Delaware para 26. In Quiksilver and WDR Delaware the inability of an arbitral tribunal to make a winding up order was common ground; it is also common ground between the parties on this appeal. [76] There is a general consensus that an arbitral tribunal has the power to grant inter partes remedies, such as ordering a share buy-out in proceedings for relief for unfairly prejudicial conduct in the management of a company under section 994 of the Companies Act 2006 in the United Kingdom and similar legislation in other jurisdictions. See Fulham, Patten LJ at paras 77-78, Longmore LJ at paras 96 and 99; Tomolugen, Sundaresh Menon CJ at paras 88-89 and 103; WDR Delaware, Foster J at para 147 quoting para 194 of Tridon. Although the court is given the power by statute to make such orders, an arbitral tribunal may also grant such a remedy because third parties, who are not involved in the dispute, do not have a legal interest in the dispute and there is no public element in a dispute of that nature. [77] Similarly, in an application to wind up a company on the just and equitable ground there may be matters in dispute between the parties, such as allegations of breaches of a shareholders’ agreement, which can be referred to an arbitral tribunal for a determination, which is binding on the parties, notwithstanding that only a court can make a winding up order: Fulham, Patten LJ at para 76; Quiksilver, Harris J at paras 14, 21- 22; Tomolugen, Sundaresh Menon CJ at paras 96-103; WDR Delaware, Foster J at paras 161-164. The researches by the appellants’ counsel demonstrate that a similar approach can be found in case law in Quebec, Canada (Capital JPEG Inc v Corporation Zone B4 Ltd [2019] QCCS 2986) in relation to mediation, Cyprus (In re Kissonerga Development Co Ltd (Application no 7/20) (unreported) 9 July 2020 which was an interim decision, Jersey (Consolidated Resources Armenia v Global Gold Consolidated Resources Ltd [2015] JCA 061 (“Consolidated Resources”), and Zambia (Vedanta Resources Holdings Ltd v ZCCM Investment Holdings plc [2020] ZMCA 104). See also in Hong Kong China Europe International Business School v Chengwei Evergreen Capital LP [2021] HKCFI 3513 (“China Europe”). Counsel did not address these cases in any detail, but they are consistent with the main cases which the Board has discussed above and support a conclusion that there is substantial agreement among common law jurisdictions as to the correct approach. [78] In WDR Delaware Foster J summarised his conclusion on this matter at para 164: “With the exception of that part of the present proceeding which involves the Court forming an opinion as to whether the plaintiffs are entitled to a winding up order, the questions of fact and law which mark out the substantive controversy between the parties in this proceeding are all matters which are capable of resolution by arbitration. Any award or awards which determine those matters will be taken into account when the Court comes to consider whether a winding up order should be made. If, at the end of the arbitral process, the award or awards do not address satisfactorily or comprehensively all of the grounds relied upon by the plaintiffs in support of their claims for relief made in the present proceeding, then it will be open to them to supplement or explain the terms of the relevant award or awards by evidence. The process by which that would be done is the everyday process of applying the law of evidence.” The Board agrees as a general rule with this approach to discrete matters which involve inter partes disputes in the context of a winding up application. Matters, such as whether one party has breached its obligations under a shareholders’ agreement or whether equitable rights arising out of the relationship between the parties have been flouted, are arbitrable in the context of an application to wind up a company on the just and equitable ground and the arbitration agreement is not inoperative because the arbitral tribunal cannot make a winding up order.” 44. It is also instructive that I consider statutes that have specifically remove the issues raised in those legislation from being arbitrated. This can be seen in section 203 of the UK Employment Rights Act 1996 and Section 144 of the Equality Act 2010:- (i) UK Employment Rights Act 1996 203 Restrictions on contracting out. (1) Any provision in an agreement (whether a contract of employment or not) is void in so far as it purports— (a) to exclude or limit the operation of any provision of this Act, or (b) to preclude a person from bringing any proceedings under this Act before an employment tribunal. (ii) UK Equality Act 2010 144 Contracting out (1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act. (2) A relevant non-contractual term (as defined by section 142) is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act, in so far as the provision relates to disability. (3) This section does not apply to a contract which settles a claim within section 114. (4) This section does not apply to a contract which settles a complaint within section 120 if the contract— (a) is made with the assistance of a conciliation officer, or (b) is a qualifying settlement agreement. 45. The jurisprudence of the Indian Courts on this issue is slightly different to those referred to earlier. This can be seen in the decision of Indian Supreme Court in Booz Allen & Hamilton Inc v SBI Home Finance and Others [2011] 5 SCC 532 where the Court drew a distinction between adjudication of rights in rem and rights in personam. The Indian Supreme Court opined that all disputes that deals with rights in personam are arbitrable whereas those that relate to rights in rem must be adjudicated by Courts. 46. R. V Raveendran J in delivering the judgment of the Indian Supreme Court held: - “23. It may be noticed that the cases referred to above relate to actions in rem. A right in rem is a right exercisable against the world at large, as contrasted from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. Correspondingly, judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and Judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide : Black's Law Dictionary). Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to sub-ordinate rights in personam arising from rights in rem have always been considered to be arbitrable.” 47. This position was affirmed in the subsequent decision of the Indian Supreme Court in Vidya Drolia v Durga Trading Corporation [2021] 2 SCC 1. Also refer to Haryana Telecom Ltd v Sterlite Industries (India) Ltd [1999] 5 SCC 688. 48. I however opine that the position in India should not be adopted in Malaysia. The intention of the Arbitration Act is to ensure that the intention of parties to have the subject matter of the dispute arbitrated be respected and enforced. It is only when it is plain and clear that the subject matter is not subject to arbitration, or it is not arbitrable by virtue of written law, or it is against public policy should the said right be ousted. I refer to the decision of the Federal Court in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 9 CLJ 1 where it was held: - “[90] The court held that the question as to whether a matter is the subject of an arbitration clause is the very threshold to the application of s 6 of the IAA; and it is only in the clearest of cases that the court ought to make a ruling on the inapplicability of an arbitration clause. [91] In determining what is the dispute or difference the parties intended to submit to arbitration, the arbitration clause ought to be interpreted widely, based on its express terms and the intention of the parties, taking into consideration the commercial reality and the purpose for which the contract or agreement was made. A proper approach to construction requires the court to give effect, so far as the language used by the parties in the arbitration clause will permit, to the commercial purpose of the arbitration clause. This principle was adopted in Fiona Trust & Holding Corporation & Ors v. Privalov & Ors [2007] 4 All ER 951.” 49. Such approach can be seen in MTU Services (Malaysia) Sdn Bhd v Boustead Naval Shipyard Sdn Bhd [2022] CLJU 2521, where Nadzarin Wok Nordin JC in relation to a petition to wind-up the respondent company agreed to stay the said petition and have the matter referred to arbitration in accordance with the dispute resolution mechanism agreed by the litigants. The fact that the winding-up process is a remedy only available to a petitioner through the Courts in accordance with section 465 of the Companies Act, the High Court found that the dispute fell within the scope of the arbitration agreement and that it was not a subject matter that is solely within the sole jurisdiction of the Courts. The dispute must be put in context and differentiate with the remedy available to the arbitrator and the Court. The reality is that the dispute deals with the amount claimed by the Petitioner and whether the said debt is due and payable. 50. Nadzarin JC (as he then was) stated:- “[46] It is also important to highlight that Her Ladyship Wong Chee Lin J in Awangsa Bina Sdn Bhd (supra) had applied the 'new' test founded by the Hong Kong Court of First Instance ("CFI") in Lasmos Limited v. Southwest Pacific Bauxite (HK) Limited [2018] HKCFI 426 where the CFI held that a winding up petition issued on the ground of insolvency should generally be dismissed if there is an arbitration clause contained in an agreement giving rise to a debt relied on to support the petition, where Wong Chee Lin J then stated that "the CFI concluded that the proper nature of a winding up petition is for a creditor to recover its debt, rather than out of "some altruistic concern for the creditors of the company generally" as it would be "the most efficacious method of obtaining payment". The CFI noted that requiring a creditor to arbitrate a dispute without first determining whether the company has a bona tide defence on substantial grounds would, in fact. Be holding a creditor to his contractual bargain-namely, to resolve any dispute by arbitration (emphasis mine). The CFI found comfort in the fact that doing so would not deprive a creditor of an advantage that it has under the existing authorities, as there are circumstances in which a creditor whose debt is disputed would be justified in issuing a petition before an arbitration had been concluded. By way of an example, if a creditor can demonstrate a prima facie case for a winding up and a risk of misappropriation of assets or some other matter, a petition could be issued and stayed other than for applications relevant to the provisional liquidation pending determination of the arbitration." [47] My decision to follow Awangsa Bina Sdn Bhd (supra), would apart from the reasoning above, thus also be more in line with the Federal Court's ratio in Press Metal Sarawak (supra). [48] I was also referred to by counsel for the Respondent to the English Court of Appeal case of Salford Estates (No. 2) Ltd v. Altomari Ltd [2014] EWCA Civ 1575 which had held:- “[41] There is no doubt that the debt mentioned in the Petition falls within the very wide terms of the arbitration clause in the Lease. The debt is not admitted. In accordance with the decision in Halki Shipping, that is sufficient to constitute a dispute within the 1996 Act, irrespective of the substantive merits of any defence, and, were there proceedings on foot to recover the debt, to trigger the automatic stay provision in s 9(1) of the 1996 Act. For the reasons I have given, I consider that, as a matter of the exercise of the court's discretion under IA 1986 s 122(1)(f), it was right for the court either to dismiss or to stay the Petition so as to compel the parties to resolve their dispute over the debt by their chosen method of dispute resolution rather than require the court to investigate whether or not the debt is bona fide disputed on substantial grounds.” [49] From the above line of authorities, it is thus this Court's decision that since the parties have chosen their method of dispute resolution to be by way of arbitration, and the arbitration clauses have been proven to be contained in the said Contracts, this winding up court should not hear the Petition any further. It is also this Court's view that the Petitioner should not circumvent or bypass the arbitration clause.” 51. It has been noted that the shift in presumption in favour of the right to arbitrate can be seen in KNM Process Systems Sdn Bhd v Mission Biofuels Sdn Bhd [2012] MLJU 839 where the Court held: - “It is also evident with the amendment that it is now mandatory on the court to grant stay where the matter before it is the subject of an arbitration agreement unless the arbitration agreement is, in the words of the statute, 'null and void, inoperative or incapable of being performed'. It is now no longer possible to argue that in respect of the controversy between the parties there is no 'dispute' with regard to the matter to be referred to arbitration, which is a test which invites unnecessary ambiguity and requires the court to determine whether there is a 'dispute' between the parties not dissimilar to the function performed by the court in determining whether there is a triable issue in a summary judgment application. The test is now simpler test of whether the matter before the court is the subject of an arbitration agreement or otherwise. To decide on the simpler test, if will become a matter of construction of the relevant arbitration agreement, where it exists.” 52. The position in the England, Wales and Singapore have also been quoted with approval by our Federal Court in Arch ReInsurance Ltd v Akay Holdings Sdn Bhd (supra) and by the Court of Appeal in Padda Gurtaj Singh v Tune Talk Sdn Bhd & Ors (supra) and Peninsula Education (Setia Alam) Sdn Bhd v Biaxis (M) Sdn Bhd (supra). Therefore, I prefer the jurisprudence as explained by the Courts in England and Wales as well as Singapore concerning any challenges as to the arbitrability of the dispute. 53. To understand the application of section 4 of the Arbitration Act, it is also instructive for this Court to consider the International Council for Commercial Arbitration Guide to the Interpretation of the 1958 New York Convention – a guide for judges. Concerning the issue of (a) non arbitrate issues – (Article V (2) (a)) the learned authors of the said guide had this to say: - “In summary, the “not arbitrable” ground for refusal under Article V(2)(a) is available where the dispute involves a subject matter reserved for the courts. For example, clearly criminal cases are non-arbitrable; similarly, cases reserved exclusively for the courts of a jurisdiction are non-arbitrable, including: – domestic relations, such as divorce and custody of children; – property settlements; – wills; – bankruptcy; and – tax controversies. The modern trend is towards a smaller category of disputes being reserved solely to the jurisdiction of courts, as the result of a number of factors, including the trend toward containing costs, a greater openness of many courts to accept that the parties’ agreement to arbitrate should be respected and the support of international arbitration by national legislation. In this respect it should also be noted that “not arbitrable” has a different meaning in an international as opposed to a domestic context (see this Chapter below at E.2 for the distinction between international and domestic public policy). (See also Chapter 2 at C.3 on subject matters “capable of settlement by arbitration”.) As an example of this trend, in 2023, the Belgian Supreme Court overturned decades old jurisprudence on the arbitrability of disputes concerning the termination of exclusive distribution agreements. It ruled that disputes about the termination of exclusive distribution agreements can be settled through arbitration, even where such an agreement is governed by foreign substantive law, regardless of whether such foreign law offers protections similar to those under Belgian law. Whether a subject matter of an arbitration is non-arbitrable is a question to be determined under the law of the country where the application for recognition and enforcement is being made. The non arbitrability should concern the material part of the claim and not merely an incidental part. Few cases of refusal of enforcement under Article V(2)(a) have been reported….” 54. Touching on the issue of public policy, the said guide states: - “Article V(2)(b) permits a court in which recognition or enforcement is sought to refuse to do so if it would be “contrary to the public policy of that country”. However, Article V(2)(b) does not define what is meant by “public policy”. Nor does it state whether domestic principles of public policy or the international concept of public policy should apply to an application for recognition and enforcement under the New York Convention. The international concept of public policy is generally narrower than the domestic public policy concept. As seen in this Chapter above at E.1, this distinction also applies to arbitrability. Most national courts have adopted the narrower standard of international public policy when applying the Convention. In the United States, for example, the “public policy defense is construed narrowly to apply only where enforcement would violate the United States’ most basic notions of morality and justice”. Similar language has been used in several other jurisdictions. The French judiciary has found that a violation of public policy must be “flagrant, effective and concrete”. Hong Kong courts require a “substantial injustice arising out of the award which is so shocking to the Court’s conscience as to render enforcement repugnant”. In India, “a contravention of a provision of law is insufficient to invoke the defence of public policy”; rather, a violation of public policy is one that offends the core values of national policy. The recommendations of the International Law Association issued in 2002 (the “ILA Recommendations”) as to “Public Policy” have been regarded as reflective of best international practice. Among the general points of the ILA Recommendations are that the finality of awards in “international commercial arbitration should be respected save in exceptional circumstances” and that such exceptional circumstances “may in particular be found to exist if recognition or enforcement of the international arbitral award would be against international public policy”. The ILA Recommendations state that the expression “international public policy” is used to designate the body of principles and rules recognized by a State, which, by their nature, may bar the recognition or enforcement of an arbitral award rendered in the context of international commercial arbitration when recognition or enforcement of said award would entail their violation on account either of the procedure pursuant to which it was rendered (procedural international public policy) or of its contents (substantive international public policy). The ILA Recommendations also state that the international public policy of any State includes: (i) fundamental principles, pertaining to justice or morality, that the State wishes to protect even when it is not directly concerned; (ii) rules designed to serve the essential political, social or economic interests of the State, these being known as “lois de police” or “public policy rules”; and (iii) the duty of the State to respect its obligations towards other States or international organizations. 55. The above guide is not binding on this Court but is persuasive. This Court have to consider whether the issue of public policy raised by the litigants that suggests that the dispute cannot be arbitrated falls into any of the categories that have been recognised by the ICC. The categories suggested by the ICC is a good starting point, but I accept that this will depend on our local requirements. 56. Issues such as (i) fundamental principles, pertaining to justice or morality, that Malaysia wishes to protect; (ii) rules designed to serve the essential political, social or economic interests of our country i.e. “lois de police” or “public policy rules” of Malaysia; and the main objective preserving the right to arbitrate must be considered by this Court. This approach is in line with the approach taken by our Courts as seen in the above cases and also in other jurisdictions as identified earlier. Summary of the Applicable Legal Principles 57. Based on the above cases, I summarise the legal principles on this area as follows:- (i) The Court must first determine what are the issues in disputes between the litigants. (ii) The Court must then consider whether the issues in disputes fall within the scope of the arbitration clause. (iii) Sections 4, 10 and 38 of the Arbitration Act presumes that parties are at liberty to agree to have any issues to be arbitrated. The Arbitration Act schemes to preserve party autonomy, and the Court should not interfere with the said party autonomy unless provided under the said Act. (iv) The Court may however find that the issue in dispute is not capable of being arbitrated if - (a) Parliament intended that the dispute is not a subject matter capable of being arbitrated; or (b) there are public policy issues that prevent such issues from being arbitrated. (v) What constitutes public policy consideration will depend on the facts of each case and cannot be subject to a straitjacket formula as to how this should be applied. This will depend on the legislative intent of the applicable statute, history of the legislation, its effect to the public at large and whether the said dispute is a reserve of the Court and cannot be arbitrated. For example, disputes concerning a charge registered pursuant to the National Land Code or criminal law may fall within the said exception to the general rule. (vi) This Court should not be convolute the subject matter of the dispute with that of the remedies that are available to Court and to arbitrators. Arbitrators and Judges have wide powers to grant damages and remedies that are available based on the jurisdiction conferred on them by way of statutes or by virtue of the agreement to arbitrate. (vii) If the arbitrator did not have the power to grant certain powers, such as winding-up, that does not mean that the subject matter of the dispute or issue in dispute cannot be arbitrated. That will only mean that parties are subject to the remedies that they have agreed to. (viii) It is also important to note that section 4 of the Malaysian Arbitration Act also states that “the fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration shall not, by itself, indicate that a dispute about that matter is not capable of determination by arbitration.” There must therefore be something more that is inherently strong appearing in the legislation or public policy considerations that prevents such issues from being arbitrated. C. Application of the law to the Facts (i) Whether the dispute falls within the scope of the agreement to arbitrate 58. On the first question, I find that the dispute referred to by MPVSB do fall within the agreement to arbitrate that is contained in the Shareholders’ Agreement. 59. MPVSB claims that the (i) increase in the share capital of the company, (ii) the transfer of shares from SISB to its sister company without its approval, (iii) issuance of new shares without its approval, (iv) removal of its nominated directors, (v) the appointment of the new Managing Directors and (vi) the refusal to appoint MPVSB representatives to the board are all in breach of the Shareholders’ Agreement. MPVSB has referred to the relevant clauses that appears in the Shareholders’ Agreement in the Notice of Arbitrate and claims that these were breached by the SISB. 60. In determining whether the dispute or issues fall within the scope of the arbitration clause, I refer to the test as laid down by Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 9 CLJ 1 where the Federal Court held:- “[55] An arbitration agreement or clause is a written submission, agreed to by the parties, and like other written submissions, must be construed according to its language and in the light of the circumstances in which it is made (see: Heyman v. Darwins Ltd [1942] AC 356, per Viscount Simon LC at p. 366). The question whether a given dispute comes within the provisions of an arbitration clause or not, primarily depends on the wording of the clause itself. (see: Heyman v. Darwins Ltd. (supra ) per Lord Porter at p. 392). [56] Parties must be held to what they have agreed to in an agreement. Therefore, it is essential to consider the wordings of the clause specifically and determine what they have agreed to. Whether a dispute falls within an arbitration clause must depend on (a) what is the dispute or difference between the parties and (b) what disputes the arbitration clause covers (see: Heyman v. Darwins Ltd (supra ) per Viscount Simon LC at p. 360). [57] The court must see what the matters as found in the proceedings before the court are, and then consider whether they are within the scope of the submissions in the arbitration clause. (see: Munro v. Bognor Urban Council [1915] 3 KB 167: per Bankes LJ at p. 172). An applicant for a stay under s. 10(1) of the 2005 Act must therefore establish that the matters in question are within the scope of the arbitration submission. …. [69] The law on the issue of whether a dispute or difference comes within the scope or ambit of an arbitration clause is clear and well-settled. The existence of a valid arbitration clause in an agreement between the parties does not automatically make it operative; the arbitration clause will only be operative when the given dispute or difference falls within the ambit of the arbitration clause. [70] As stated earlier, an arbitration clause, like any other written agreement, must be construed according to its language and in the light of the circumstances in which it is made. In this regard Viscount Simon LC in Heyman v. Darwins (supra ) said at p. 360 of the report: The answer to the question whether a dispute falls within an arbitration clause in a contract must depend on (a) what is the dispute and (b) what disputes the arbitration clause covers. … [72] Lord Macmillan, in that case, had given a comprehensive guideline of the law on the matter, as follows (see: p. 370): Where proceedings at law are instituted by one of the parties to a contract containing an arbitration clause and the other party, founding on the clause, applies for a stay, the first thing to be ascertained is the precise nature of the dispute which has arisen. The next question is whether the dispute is one which falls within the terms of the arbitration clause. Then sometimes the question is raised whether the arbitration clause is still effective or whether something has happened to render it no longer operative. Finally, the nature of the dispute being ascertained, it having been held to fall within the terms of the arbitration clause, and the clause having been found to be still effective, there remains for the court the question whether there is any sufficient reason why the matter in dispute should not be referred to arbitration. In our view, the aforesaid guidelines provide useful reference by our courts in dealing with the matter. In the context of s. 10(1) of the 2005 Act, "sufficient reason why the matter in dispute should not be referred to arbitrator" refers to the fact that the agreement is null and void, inapplicable or incapable of being performed. [73] In Sulamérica CIA Nacional De Seguros SA & Ors v. Enesa Engenharia SA & Ors [2012] EWCA Civ 638, the English Court of Appeal dealt with an arbitration clause which reads: In case the Insured and the Insurer(s) shall fail to agree as to the amount to be paid under this Policy through mediation as above, such dispute shall then be referred to arbitration under ARIAS Arbitration Rule. [74] Lord Justice Moore - Bick upheld the ruling made by the trial judge to the effect that "As a matter of language, a failure to agree "as to the amount to be paid under this policy" includes a dispute about whether any sum is due under the policy at all, and thus includes matters of liability and coverage". …… [91] In determining what is the dispute or difference the parties intended to submit to arbitration, the arbitration clause ought to be interpreted widely, based on its express terms and the intention of the parties, taking into consideration the commercial reality and the purpose for which the contract or agreement was made. A proper approach to construction requires the court to give effect, so far as the language used by the parties in the arbitration clause will permit, to the commercial purpose of the arbitration clause. This principle was adopted in Fiona Trust & Holding Corporation & Ors v. Privalov & Ors [2007] 4 All ER 951. [92] The above principle was followed by our courts. In KNM Process Systems Sdn Bhd v. Mission Biofuels Sdn Bhd [2013] 1 CLJ 993, Mohamad Ariff Yusof J (later JCA), in allowing an application for a stay of proceedings under s. 10(1) of the 2005 Act, ruled as follows (see pp. 1005, 1006): ... the approach in Fiona Trust should be followed. Quite apart from the broad reading to be given to linking words such as "in relation to", or "in connection with", or "arising under", the principle that it is to be presumed that rational businessmen would intend to have the same forum decide disputes between themselves in respect of the same broad subject matter unless they have expressed otherwise by clear language, has much to commend it, both in terms of legal principle, logic, commercial sense and policy.... presently I believe it will be better to consider Fiona Trust as the starting point for any consideration of the principles of stay of proceeding, in relation to widely-drafted arbitration clauses.” 61. Having considered the above, I find that the dispute referred to arbitration by MPVSB falls within the scope of the arbitration agreement. For ease of reference, the said clause is reproduced below: - “20.2.1 The parties shall use their best efforts to promptly and adequately resolve any dispute or difference which may arise between the parties in connection with this agreement through amicable consultations, conciliations or other agreed upon means, but any such dispute or difference which cannot be so promptly and adequately resolved shall be referred to arbitration by a single arbitrator to be mutually appointed by the Parties.” 62. I find that the said clause is sufficiently wide to include the disputes, and the claims put forth by MPVSB. (ii) Whether the dispute is not arbitrable as it is prohibited by the Companies Act or due to public policy considerations 63. The Plaintiffs contend that the dispute referred to arbitration by the Defendant falls into the exception to the general rule and is incapable of being arbitrated. Alleged Statutory Prohibition Preventing Oppression to be Non-Arbitrable 64. The Plaintiffs suggest that as the MPVSB's claim is premised on alleged oppressive conduct by SISB concerning the affairs of MPAS, the dispute cannot be resolved by way of arbitration. It is suggested that Parliament had intended such claims should only be resolved through the Courts. 65. It is also suggested that such disputes will have public policy consideration. Such claims may have an impact on third parties such as creditors and employees of the company. Therefore, it is suggested these claims cannot be arbitrated as recognised under section 4 of the Arbitration Act. 66. Firstly, I find that the MPVSB’s claim against the SISB is based on the breaches of the Shareholders’ Agreement. That is the main complaint by the MPVSB and these allegations may also fall within the realm of alleged minority oppression claimed against the SISB. 67. If these claims are premised solely on section 346 of the Companies Act and not based on breaches or claims relating to the Shareholders’ Agreement, then the claims will not be subject to the agreement to arbitrate. That is the first test as laid down earlier. The fact that these claims may also fall within the scope of oppressive conduct as provided under section 346 of the Companies Act does not automatically mean that the subject matter cannot be arbitrated. What is important is whether the said claim or dispute falls within the scope of the arbitration agreement. 68. Secondly, I do not find that there exists any prohibition under the Companies Act that prevents such disputes from being arbitrated. I reproduce section 346 of the Companies Act:- “(1) Any member or debenture holder of a company may apply to the Court for an order under this section on the ground- (a) that the affairs of the company are being conducted or the powers of the directors are being exercised in a manner oppressive to one or more of the members or debenture holders including himself or in disregard of his or their interests as members, shareholders or debenture holders of the company; or (b) that some act of the company has been done or is threatened or that some resolution of the members, debenture holders or any class of them has been passed or is proposed which unfairly discriminates against or is otherwise prejudicial to one or more of the members or debenture holders, including himself. (2) If on such application the Court is of the opinion that either of those grounds is established, the Court may make such order as the Court thinks fit with the view to bringing to an end or remedying the matters complained of, and without prejudice to the generality of subsection (1), the order may- (a) direct or prohibit any act or cancel or vary any transaction or resolution; (b) regulate the conduct of the affairs of the company in the future; (c) provide for the purchase of the shares or debentures of the company by other members or debenture holders of the company or by the company itself; (d) in the case of a purchase of shares by the company, provide for a reduction accordingly of capital of the company; or (e) provide that the company be wound up. (3) If an order that the company be wound up is made under paragraph (2)(e), the provisions of this Act relating to winding up of a company shall apply as if the order had been made upon a petition duly presented to the Court by the company, with such adaptations as are necessary. (4) If an order under this section makes any alteration in or addition to any constitution, then, notwithstanding anything in any other provision of this Act, but subject to the order, the company concerned shall not have power without the leave of the Court to make any further alteration in or addition to the constitution inconsistent with the order, but subject to the foregoing provisions of this subsection, the alterations or additions made by the order shall be of the same effect as if duly made by resolution of the company. (5) An office copy of any order made under this section shall be lodged by the applicant with the Registrar within fourteen days from the making of the order. (6) The applicant who contravenes subsection (5) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit and, in the case of a continuing offence, to a further fine of five hundred ringgit for each day during which the offence continues after conviction.” 69. Furthermore, as correctly pointed out by Counsel for the MPVSB, section 4 of the Arbitration Act did specifically state that the “the fact that any written law confers jurisdiction in respect of any matter on any court of law but does not refer to the determination of that matter by arbitration shall not, by itself, indicate that a dispute about that matter is not capable of determination by arbitration’. Therefore, for such dispute to become non-arbitrable, requires a positive statement of such effect in the relevant legislation. 70. Such an approach can be seen in Padda Gurtaj Singh v Tune Talk Sdn Bhd & Ors and another appeal (supra). That case was in itself a dispute revolving around the registration of shares and the right to rectify the registration of shares in a company. The power to do so was specifically provided to be in the hands of the Courts under section 107 of the Companies Act. Despite the said proviso, the Federal Court found that the said dispute is arbitrable:- “[89] Then comes s 107(2) of the CA 2016 which we find confers a discretion on the court whether or not to register the shares. This is evident from the words ‘may’ and ‘well founded’. Such discretion can only be exercised after due enquiry into the reasons for the respondents’ non-registration of the shares which necessarily has to lead to the pre-emption rights in the articles of association and SHA. The pre-emption rights are as in cl 9 SHA, and articles 37-52 of the articles of association. [90] The language employed in the aforesaid statutory provisions do not expressly exclude arbitration and there has been no evidence put forth that it was the legislative intent to so exclude. There is no wider interests of third parties involved such as creditors as this only involve parties within SHA. We, therefore, find the statutory provisions as per ss 106 and 107 of the CA 2016 are not an exception to arbitrability.” Alleged Public Policy Consideration 71. The argument on this issue does not end there. Counsel for SISB suggests allowing such claims to be arbitrable will be an affront to the purpose and public policy behind section 346. 72. Counsel suggests that as claims of alleged oppressive conduct are not limited to merely actions between shareholders but also extends to decisions by management including the affairs of the board of directors. The scope of a claim for minority oppression concerns the actions of those in control of the company that allegedly oppresses or is unfair against those in the minority. This goes beyond the scope of contractual obligations or even tortious conduct. 73. To support the said contention Counsel for SISB refers to the decision of Auspicious Journey Sdn Bhd v Ebony Ritz Sdn Bhd [2021] 3 MLJ 549, Jet-Tech Materials Sdn Bhd & Anor v Yushiro Chemical Industry Co Ltd & Ors [2013] 2 CLJ 277 and Beh Chun Chuan v Paloh Medical Centre Sdn Bhd [1999] 7 CLJ 1. 74. SISB argues that public policy considerations require a claim based on an alleged claim of minority oppression to be disposed solely through the Courts. SISB relies substantially on the judgment of Nallini Pathmanathan FCJ in Auspicious Journey Sdn Bhd v Ebony Ritz Sdn Bhd [2021] 3 MLJ 549. 75. After carefully reading the judgment of the Federal Court in the above case, I find that it is not inherent in the said policy considerations identified by Nallini Pathmanathan FCJ that requires such claims not to be arbitrable as suggested by SISB. There are no fundamental principles, pertaining to justice or morality, or any rules designed to serve the essential political, social or economic interests of our country that would be offended if such disputes are referred to arbitration. 76. There is nothing in our public policy that requires disputes between shareholders that may also includes claims of unfair or oppressive conduct that should be referred to and resolve solely before our Courts. 77. Counsel for SISB suggests that this Court should not follow Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57 where the Singapore Court of Appeal held that even issues concerning minority oppression could be referred to arbitration as long as the dispute fall within the scope of arbitration. I have quoted extensively earlier the grounds of Sundaresh Menon CJ in the earlier paragraphs to explain why the Singapore Court adopted the said position and agreed with the reasoning of the English Court of Appeal in Fullham Football Club (1987) Ltd v Richards and another (supra) and as adopted by the earlier Singaporean Court of Appeal in Larsen Oil v Petropod (supra). This can be seen in the judgment of the said Court: - “[88] This extract from Lord Hoffmann’s judgment in O’Neill v Phillips makes it plain that the essence of a claim for relief on the ground of oppressive or unfairly prejudicial conduct lies in upholding the commercial agreement between the shareholders of a company. This is irrespective of whether the agreement is found in the formal constitutional documents of the company, in less formal shareholders’ agreements or, in the case of quasi-partnerships, in the legitimate expectations of the shareholders. Section 216 of the Companies Act was not introduced to protect or further any public interest. An application for relief under s 216 of the Companies Act almost always arises in the context of a solvent company. The role of this section was, and still remains, that of remedying differences which sometimes inevitably arise as a consequence of persons associating for an economic purpose through the corporate form of a company. Section 216 is concerned with protecting the commercial expectations of the parties to such an association. It seems to us that if those persons choose to have their differences resolved by an arbitral tribunal, they should be entitled to do so. There is, in general, no public element in disputes of this nature which mandate the conclusion that it would be contrary to public policy for them to be determined by an arbitral tribunal rather than by a court.” …. “[103] In our judgment, the approach taken by the courts in England (see Fulham FC v Richards) and in Hong Kong SAR (see Re Quiksilver Glorious Sun) commends itself to us because it seeks to strike a balance between, on the one hand, upholding the agreement of the parties as to how their disputes are to be resolved and, on the other, recognising that there are jurisdictional limitations on the powers that are conferred on an arbitral tribunal. We accept that this has the effect of enhancing the procedural complexity of a dispute which is covered by an arbitration agreement where one or more of the reliefs sought is beyond the arbitral tribunal’s powers to grant, and such complexity will be further exacerbated if, in addition, the dispute concerns other parties who are not party to the arbitration agreement in question. It is to this that we turn next; but we are satisfied that an arbitral tribunal’s inability to grant certain reliefs which may be sought would not in itself render the subject matter of the dispute nonarbitrable. “ 78. In most common law jurisdictions, disputes over oppressive or unfairly prejudicial conduct towards minority shareholders could be arbitrated. This is noted by Sundaresh Menon CJ:- “[94] Disputes over oppressive or unfairly prejudicial conduct towards minority shareholders have also been held to be arbitrable in: (a) New South Wales and Victoria in Australia (see, respectively, ACD Tridon v Tridon Australia [2002] NSWSC 896 (“ACD Tridon”) and Paul Brazis and others v Emilio Rosati and others [2014] VSC 385 (“Re Form 700”)); (b) the British Virgin Islands (see Ennio Zanotti v Interlog Finance Corp and others Claim No BVIHCV 2009/0394 (8 February 2010) (unreported) (“Zanotti v Interlog”)); and (c) British Columbia in Canada (see ABOP LLC v Qtrade Canada Inc (2007) 284 DLR (4th) 171 (“ABOP v Qtrade”)). In fact, our attention was not drawn to any jurisdiction which regarded such a dispute as non-arbitrable.” 79. I therefore see no reason why the disputes between the litigants should not be referred to arbitration. There are no public policy considerations as it appears in the Companies Act or our jurisprudence that dictates such issues such as minority oppression disputes to be non-arbitrable. Alleged Interference with Judicial Powers 80. Counsel for SISB further argues that to allow such disputes that have been reposed specifically with the Courts may subvert judicial powers as enshrined in Article 121 of the Federal Constitution. Counsel then refers, inter alia, to JRI Resources Sdn Bhd v Kuwait Finance House (M) Bhd [2019] 3 MLJ 561, TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] 295 ALR 596 and Semenyih Jaya v Pendaftar Tanah Daerah Hulu Langat [2017] 5 CLJ 526 in support of his contention that such issues should remain solely with the Courts and should be subverted by way of arbitration. 81. I am not persuaded by the said arguments. I find that as explained in numerous cases, the foundation of arbitration is not based on judicial power but is based on the party’s agreement to have the subject matter or dispute to be resolved by way of arbitration. Whereas the power of the Courts to resolves disputes and decide on cases as well as impose criminal sanction does not depend on the consent of parties. That power lies with Article 121 of the Federal Constitution. 82. I can do no better that refer to the judgment of the High Court of Australia in Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission & Anor [2001] HCA 16. In that case the High Court of Australia explained: - “[30] There is, however, a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them. [31] Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it. … [34] The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified, it also has effect as an award. To the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect. But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award.” 83. The High Court of Australia reaffirmed the above position in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (supra) where French CJ and Gageler J held:- “[27] The judicial power of the Commonwealth has defied precise definition. One dimension concerns the nature of the function conferred: involving the determination of a question of legal right or legal obligation by the application of law as ascertained to facts as found "so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons". Another dimension concerns the process by which the function is exercised: involving an open and public enquiry (unless the subject-matter necessitates an exception), and observance of the rules of procedural fairness. Yet another dimension concerns the overriding necessity for the function always to be compatible with the essential character of a court as an institution that is, and is seen to be, both impartial between the parties and independent of the parties and of other branches of government in the exercise of the decision-making functions conferred on it. [28] Underlying each of those dimensions of the judicial power of the Commonwealth is its fundamental character as a sovereign or governmental power exercisable, on application, independently of the consent of those whose legal rights or legal obligations are determined by its exercise. That fundamental character of the judicial power of the Commonwealth is implicit in the frequently cited description of judicial power as "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects", the exercise of which "does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action". Judicial power "is conferred and exercised by law and coercively", "its decisions are made against the will of at least one side, and are enforced upon that side in invitum", and it "is not invoked by mutual agreement, but exists to be resorted to by any party considering himself aggrieved". [29] Therein is the essential distinction between the judicial power of the Commonwealth and arbitral authority, of the kind governed by the Model Law, based on the voluntary agreement of the parties. The distinction has been articulated in the following terms: “Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator's powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator's award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it." The context of that articulation puts its reference to "private arbitration" in appropriate perspective. The context was that of a challenge to the capacity of a statutory body consistently with Ch III of the Constitution to exercise a statutory function to settle a dispute where so empowered by an agreement entered into as a result of statutory processes. The reference to "private arbitration" was not to a private function, as distinct from a public function, but rather to a function the existence and scope of which is founded on agreement as distinct from coercion. [30] The application of that distinction requires differentiation between recognition of an arbitral award as binding on the parties by force of Art 35 of the Model Law and enforcement of an arbitral award by a competent court, on application, under Art 35 of the Model Law. [31] The making of an arbitral award, which is recognised as binding on the parties from the time it is made by force of Art 35 of the Model Law, is not an exercise of the judicial power of the Commonwealth. That is because the existence and scope of the authority to make the arbitral award is founded on the agreement of the parties in an arbitration agreement. The exercise of that authority by an arbitral tribunal to determine the dispute submitted to arbitration for that reason lacks the essential foundation for the existence of judicial power.” 84. Counsel for SISB suggests that the decision of the Federal Court in Auspicious Journey Sdn Bhd v Ebony Ritz Sdn Bhd (supra), restricts such issues as oppression claims that fall under section 346 of the Companies Act prevents such issues from being arbitrated. He suggests that the Malaysian Companies Act have an element of public interest as it may have an impact towards third parties and includes rights towards third parties such as directors. The right to grant the remedies under a winding-up petition under Malaysian law is also allegedly a discretionary judicial power that cannot reside with an arbitrator. As a result, he suggests that this shows public policy requires such dispute must solely be determined by the Courts. 85. I am however not persuaded. Whether the arbitrator has powers will go towards jurisdiction of the arbitrator in making such awards or orders. They do not go towards the arbitrability of the dispute. I also do not find any public policy consideration as highlighted by the Federal Court that prevents such disputes from being arbitrable. 86. I also do not find that there is any form of violation of judicial power or usurpation of judicial power if this Court agrees that minority oppression disputes is arbitrable. I refer to Ketheeswaran Kangaratnam & Anor v PP [2024] 2 CLJ 341 and Mohd Najib Hj Abd Razak v Government of Malaysia & Another appeal [2023] 10 CLJ 329. 87. I refer to the judgment of Tengku Maimun Tuan Mat CJ in Ketheeswaran Kangaratnam v PP (supra): - “[82] We have restated the applicable cases earlier. In summary, where a violation of judicial power is alleged, a clear case must be showed indicating that such an occurrence has indeed taken place. [83] In Mohd Najib Hj Abd Razak v. Government Of Malaysia & Another Appeal [2023] 10 CLJ 329 ('Najib Razak'), the appellants argued that s. 106(3) of the Income Tax Act 1967 ('ITA 1967') was unconstitutional for the reason that it violated art. 121(1). This court undertook a wholesome analysis of that section and the rest of the scheme and provisions of the ITA 1967 and ultimately arrived at the conclusion that the provision was not unconstitutional for the reasons advanced. In its analysis, the court followed the recent case authorities on the correlation between arts. 4(1) and 121(1) and set out guidelines for determining constitutionality of legislation in para. 32 of the judgment. In dealing with s. 106(3) of the ITA 1967, this court cautioned that legislation that is challenged on grounds of constitutionality must be read in context as opposed to in vacuo. This is what the court said: [49] The Appellants effectively postulate that the section should be construed in vacuo. This is borne out in the Appellants' submissions (and those of the amicus curiae), as throughout their submissions, the Appellants (and amicus) have concentrated their arguments purely on s. 106(3) ITA without once attempting to construe the subsection in the context of s. 106 ITA itself or the Act as a whole. The entirety of the argument on the alleged usurpation of judicial power focuses on s. 106(3) ITA. It is contended by the Appellants as stated earlier, that a literal application of s. 106(3) IT A would effectively amount to the decision of the Inland Revenue 'usurping' the High Court of its judicial power to effectively determine disputes. [50] However, such an approach which focuses wholly on the subsection alone is likely to result in a construction which is different from an approach where the sub-section is read in the context of the section it is housed in, and the operation of the ITA as a whole. Moreover, the latter approach is the generally accepted mode of statutory construction approved by most jurisdictions. [84] The tone and tenor of the judgment in Najib Razak (which dealt with arguments relating to judicial power) suggests that it is only upon a wholesome reading of an impugned provision that it can be concluded that a given law is violative of judicial power. If the legislation considered as a whole, does not abrogate judicial power, then it is not invalid on grounds of violation of art. 121(1). This can be gleaned from the following passage in Najib Razak: [89] In short, s. 106(3) ITA cannot be viewed as abrogating, suspending or removing judicial powers because the Court is only facilitating collection and recovery under the ITA. It is not exercising its full judicial powers of hearing, adjudication or determination which arise under the dispute adjudication system stipulated in Part VI, Section 2, Appeals under the ITA. The preclusion of issues relating to the quantum of tax payable or the basis of imposition of tax or whether a person is a 'chargeable' person or not are all matters that fall for consideration under the appeals procedure. [85] Accepting Najib Razak and earlier cases decided on judicial power (vis-a-visarts. 4(1) and 121(1)), what then would warrant the conclusion that judicial power has been abrogated? We think some concrete case examples would, in this regard, be relevant.” 88. Therefore, it would be wrong for this Court to only concentrate of Section 346 of the Companies Act and Section 4 of the Arbitration Act. The whole applicable legislation dealing with this area of the law must be considered that falls squarely within the scope of the Arbitration Act. 89. When I consider the said Arbitration Act as a whole, I find that juridical power concerning the arbitrability of disputes, the power to grant interim measures, enforcement of awards and setting aside awards remain with the Courts. This can be seen in sections 4, 10, 11, 37 and 38 of the Arbitration Act. The applicable legislation does not abrogate judicial powers but merely streamlines it in accordance with the purpose of the Arbitration Act. 90. The consideration laid down under sections 4 and 10 of the Arbitration Act in itself shows that the Courts may decline to have any claim arbitrated if the issue is not capable of being arbitrated or the agreement is null and void, it is inoperative or is incapable of being performed. That shows that the Court's juridical powers concerning the resolution of disputes have not been abrogated. This extends to disputes such as claims of minority oppression or even claims concerning the rights to shares that are provided for under the Companies Act. Remedies provided under section 346 of the Companies Act may not be available to Arbitrators 91. Finally on the issue of the remedies that could be exercised by the arbitrator, I do not believe that this renders the claim not arbitrable. The fact that the arbitrator may not be able to wind-up the company does not mean that the issue is not arbitrable. This only means that the claimant will have to accept the orders made by the arbitrator and accept the limitation of the powers that are afforded to the arbitrator unlike those specifically provided under section 346 of the Companies Act. 92. Instead, I find that Malaysia’s public policy now requires that parties comply with what they have agreed to. This would extend to ensuring that parties comply with their agreement to have disputes arbitrated unless it is shown that the said issue will fall outside the general rule and to do so would be an affront to Parliament’s intent or public policy considerations. This does not arise in the circumstances of this case, and I believe that as long as the claim falls within the scope of the agreement to arbitrate, parties should comply with the said agreement. 93. As identified earlier, even issues concerning pre-liquidation claims or even the right to register shares that are specifically provided under the Companies Act, have been found to be arbitrable. Even a Petition to Wind-Up a company has been stayed in favour of arbitration due to the existence of an arbitration agreement that requires such claims to be arbitrated. Therefore, it is clear to this Court that any dispute that arise or relate to provisions appearing in the Companies Act do not mean that they are no arbitrable. This is in line with section 4(2) of the Arbitration Act. 94. I further refer to the decision of Ong Chee Kwan J in Tune Group Sdn Bhd v Tune Talk Sdn Bhd & Ors [2023] CLJU 1794:- “[60] Whether Tune Group's complaints constitute mere breaches of the SHA or whether such breaches under the SHA may also give rise to a right under Section 346 of the CA 2016 [See: Dato' Gue See Sew & Ors v. Heng Tang Hai & Ors [2020] MLRHU 202] is a matter that the parties have by agreement provided for determination by the arbitral tribunal. In other words, Tune Group has not shown that the complaints in the OS are matters falling outside of the subject matters stipulated in the SHA. … [62] More specifically, Clauses 10.1(j) deals with a transfer of shares or other interests of a shareholder which would result in a change in control of a shareholder. Any allegation of realignment has to start from here and does not arise in isolation outside the SHA. Further, Clause 14.1(b) relates to the obligation of the shareholders of Tune Talk to cooperate in good faith to give full effect to the provisions and intents of the SHA. This again provides the framework for performance of the parties' obligations in relation to any alleged re-alignment. [63] In fact, just looking at the reliefs sought by Tune Group in the OS, in particular, the declaration sought on the actual status of the shareholding interest had by Celcom Mobile in Tune Talk in the run up to the time of the completion of the subject merger exercise and the further prayer for an order requiring the parties (save for Tune Talk and Jason Lo) to give full and frank disclosures of all and every aspect of any private settlement or agreement, including all and any intentions, of whatever nature, relating to any disposal and or acquisition of the registered shareholding of Celcom Mobile in Tune Talk, it is plain to see that Tune Group can only be seeking such reliefs in reliance of its rights under the SHA. [64] I agree with the submission by learned counsel for Celcom Axiata and Celcom Mobile that the alleged acts of oppression in truth concern the relationship of the shareholders as well as the affairs of Tune Talk, all of which are governed by the terms of the SHA, including inter alia: (a) Recital C of the SHA where parties agreed to rely on the SHA to regulate their relationship as shareholders and the affairs of and their dealings with Tune Talk; (b) Clause 9 of the SHA on the pre-emptive provisions for transfer of shares; and (c) Clause 14.1 of the SHA where parties agreed to cooperate in good faith and take such other action as may be reasonably required to give full effect to the provisions and intent of the SHA. [65] Similarly, the Subsequent Events are also clearly matters which concern the rights of shareholders and affairs of Tune Talk, which are governed by the SHA, inter alia: (a) Clause 6.3 of the SHA on the rights of shareholders pertaining to circular resolution; (b) Schedule 3 of the SHA on the directors' and shareholders' reserved matters; (c) Clause 7.3 of the SHA on the appointment of company secretary; and (d) Clause 6A of the SHA on the rights of the Board pertaining to the performance of Chief Executive Officer. [66] Essentially, Tune Group is complaining that it has been kept in the dark as regards the Alleged Private Settlement Discussions between the Celcom Bloc and the Gurtaj Group. This, however is a matter between the two parties and if Tune Group is aggrieved, it must be on the basis that the Alleged Private Settlement Discussions have in some form breached the obligations by the parties to Tune Group under the SHA. The Alleged Private Settlement Discussions between the Celcom Bloc and the Gurtaj Group being a transaction between the two parties, in the ordinary course, can have no bearing on Tune Group and the claims by Tune Group for discovery of the terms of the Alleged Private Settlement Discussions, if at all, can only be in reliance on the SHA. Indeed, Tune Group has not been able to point to any other source in asserting the claims. [67] Accordingly, it is my judgment that the matters complained of by Tune Group in the OS amount to a "controversy, claim or dispute arising out of or in relation to [the SHA]" which ought to be referred and resolved in an arbitration in accordance with Clause 16.1 of the SHA.” 95. I again find it to be instructive to refer to the decision of Sundaresh Menon CJ In Tomolugen (supra) on this issue. I find that that the approach taken in Singapore on this issue to be correct. The main consideration for the Court to consider on the issue of whether the claim is arbitrable or otherwise is not dependent on the reliefs that the arbitrator could order. Instead, what is important is whether the issue in dispute falls within the scope of the agreement to arbitrate: - “[98] …The fact that the relief sought might be beyond the power of the tribunal to grant does not in and of itself make the subject matter of the dispute non-arbitrable. This point is elegantly captured in a slightly different, although nonetheless instructive, context in Lord Mustill & Stewart C Boyd, Commercial Arbitration: 2001 Companion Volume to the Second Edition (Butterworths, 2001) at p 73: … It is of course true that an award to the effect that a disputed patent is valid cannot make the patent valid, for the grant of a monopoly right exercisable against the world is a matter for public authorities, and so is the pronouncement of decisions about whether the monopoly was properly granted, whether it still exists, and so on, which affect its enforceability against the whole world. An arbitrator whose powers are derived from a private agreement between A and B plainly has no jurisdiction to bind anyone else by a decision on whether a patent is valid, for no-one else has mandated him to make such a decision, and a decision which attempted to do so would be useless. But this is a question of jurisdiction, not of arbitrability, and we can see no reason why an arbitrator cannot conclude the issue of validity as between A and B if the issue is one which they have mandated him to decide. … [emphasis added] [99] The English Court of Appeal in Fulham FC v Richards too was alive to the distinction between the jurisdictional limitations of an arbitral tribunal on the one hand and subject matter arbitrability on the other. Patten LJ said at [83][84]: “83 … If the relief sought is of a kind which may affect other members who are not parties to the existing reference, I can see no reason in principle why their views could not be canvassed by the arbitrators before deciding whether to make an award in those terms. Opposition to the grant of such relief by those persons may be decisive. Similarly, if the order sought is one which cannot take effect without the consent of third parties then the arbitrators’ hands will be tied. 84 But, as explained earlier in this judgment, these jurisdictional limitations on what an arbitration can achieve are not decisive of the question [of] whether the subject matter of the dispute is arbitrable. They are no more than the practical consequences of choosing that method of dispute resolution …” 96. Learned Counsel for SISB suggests out that the powers of the arbitrators in Singapore and the UK are wider and the legislative framework of a minority oppression in Malaysia, Singapore and the UK are different. Therefore, he suggests that we should not adopt the same position as in those jurisdictions and not accept that oppressive claims are arbitrable. 97. On the powers of arbitrators, I agree that in our jurisdiction, arbitrators may not have extensive powers as those in Singapore or the UK. Section 12 of the Singaporean International Arbitration Act 1994 does provide with Singaporean seated arbitration wide powers to arbitrators and have powers to even provide for remedies or reliefs that could have been ordered by the High Court Judge. This is missing in our legislation. Instead, the powers provided to the arbitrator will depend on the applicable law to the dispute as seen in section 30 of the Malaysian Arbitration Act. 98. Again, despite the said difference, I do not find that the position in Singapore or the UK should not be adopted in our jurisdiction. The emphasis should not be on the powers of the arbitrator and what remedies he or she may order at the end of the dispute resolution process. What this Court should be concerned about is the jurisdiction of the arbitrator. This is dependent on the subject matter of the dispute and not the remedy. 99. If the subject matter of the dispute falls within the scope of the arbitration agreement, then parties should be bound by what they have agreed upon. Unless it is shown to this Court that Parliament has made it clear that the said issue or dispute is not arbitrable or that there are public policy considerations that override the said agreement. This may arise in situations such as enforcement of charges under the National Land Code. 100. On the issue of remedies available to the arbitrator, I do not intend to make any ruling on the said issue at this juncture. That is best left in the hands of the arbitrator and decided at the end of the arbitration process. I decline to make any such ruling as suggested by Counsel for SISB that is presented by way of 3 options in this case. 101. It would be premature and wrong for this Court to make any such finding or provide the available reliefs to be exercised by the arbitrator. That should be left in the hands of the arbitrator at this stage. If SISB is not satisfied with the orders of the arbitrator and claims that he has exceeded his powers as provided by the agreement to arbitrate, SISB may file the required challenge in accordance with section 37 and section 39 of the Arbitration Act 2005. 102. There is another important issue that I have considered. The agreement to arbitrate has always been considered to be artificially separate from the agreement in dispute. Therefore, the fact that the remedies claimed by MPVSB may not be provided in the Shareholders’ Agreement and may be beyond the scope of the remedies that are available to the claimant (MPVSB), does not mean that the dispute raised in this suit is not arbitrable. I leave that issue to be determined by the arbitrator. 103. The remedies claimed by MPVSB will have to be decided by the arbitrator at the end of the arbitration. It would be wrong for this Court to put the cart before the horse. I find that the issues raised by MPVSB falls within the scope or arbitration and therefore arbitrable. 104. For the above reasons, I see no valid reason why the said dispute as referred to arbitration by MPVSB is not arbitrable. D. 105. Conclusion Therefore, I find that the issue in dispute between the parties as identified earlier fall within the scope of the arbitration agreement. The issues raised do not fall within the categories of cases where to allow the said claims to be arbitrated will be an affront to our public policy. 106. I repeat that I find no reason why a claim for a breach of a Shareholders’ Agreement that, may or may not constitute an oppressive conduct as identified in Section 346 of the Companies Act, should not be capable of being arbitrated. 107. I do not find any provision in the Companies Act that prohibits such issue from being arbitrable. I also do not find the existence of any public policy considerations that prevent such issues from being arbitrated. The presumption of arbitrability as laid down under section 4 of the Arbitration Act remains applicable in this case. 108. For the above reasons, I dismiss the Plaintiffs’ claim with costs of RM 50,000.00 subject to allocator. Dated 28th August 2024 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya at Kuala Lumpur NCC 5 Counsel: Malik Imtiaz Sarwar together with S. Muralitharan, Surendra Ananth, Khoo Suk Chyi, Wong Ming Yen, Lai Chun Seng for the Plaintiffs Messrs. Murali Sangaran Advocates & Solicitors Harold Tan Kok Leng together with Amy Hiew Kar Yi, Chan Jia Ying and Jessica Wong Yi Sing for the Defendant Messrs. Harold & Lam Partnership Advocates & Solicitors