1. ) SHARINA BINTI MOHAMED SULTAN v AGENSI PEKERJAAN MIMS SDN BHD (sebelum ini dikenali sebagai MIMS Careers Sdn Bhd) (WA-24NCC(ARB)-9-02/2021)

SHARINA BINTI MOHAMED SULTAN (NRIC No.: 700505-10-6554)

ARMAND MIKHAYL YEOH ABDULLAH (NRIC No.: 730222-10-5399)

MARY ELIZABETH A/P S. SANDANASAMY (NRIC No.: 550 709-08-6048) ...DEFENDANTS (Heard together with) IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) ORIGINATING SUMMONS NO. WA-24NCC(ARB)-9-02/2021 In the matter of an Arbitration between Agensi Pekerjaan MIMS Sdn Bhd (formerly known as MIMS Career Sdn Bhd) (Claimant) and (1) Sharina Binti Mohamed Sultan, (2) Armand Mikhayl Yeoh Abdullah, and (3) Mary Elizabeth A/P S. Sandanasamy (Respondents); Arbitration Reference No. ADM-5712018; And In the matter of a Final Award dated 16.3.2020 handed down by the Arbitral Tribunal of three (3) Arbitrators, viz, Anselmo Reyes, Alan Thambiayah, and Nitin Nadkarni; And In the matter of Section 37(1)(a)(iv), Section 37(1)(a)(v), Section 37(1)(b)(ii) and/or Section 37(2)(b) of the Arbitration Act 2005; And In the matter of Order 7 Rule 2, Order 69 Rule 5, and/or Order 92 Rule 4 of the Rules of Court 2012

SHARINA BINTI MOHAMED SULTAN (NRIC No.: 700505-10-6554)

ARMAND MIKHAYL YEOH ABDULLAH (NRIC No.: 730222-10-5399)

MARY ELIZABETH A/P S. SANDANASAMY (NRIC No.: 550709-08-6048) ...PLAINTIFFS AND AGENSI PEKERJAAN MIMS SDN BHD (formerly known as MIMS Careers Sdn Bhd) (Company No.: 1199876-U) ... DEFENDANT GROUNDS OF JUDGMENT Introduction [1] This Grounds of Judgment concerns two (2) Originating Summons (“OS”) which were heard before this Court - i. OS No.: WA-24C(ARB)-6-02/2021 filed on 10.02.2021

6.1 MIMS is a giant in the healthcare recruitment industry in Asia and is part of a group of companies owned by one of Japan’s largest recruitment company, SMS Co. Ltd.

6.2 The Plaintiffs were employees and owners of Melorita Consultants Sdn. Bhd. (“Melorita”), which is a recruitment consultancy company incorporated in Malaysia in the healthcare industry. Melorita’s business primarily entails the recruitment of healthcare professionals for medical institutions.

6.3 MIMS and the Plaintiffs executed a Share Purchase Agreement dated 13.5.2017 (“SPA Agreement”) for the acquisition of 100% of the issued share capital of Melorita.

6.4 On 19.3.2018, MIMS commenced Arbitration proceedings against the Plaintiffs. In essence, MIMS pleaded: i. Clause 9.1. of the SPA Agreement obligated the Plaintiffs to ensure every representation and warranty set out in Schedule 6 of the SPA Agreement were at all material times true, complete and accurate, and not misleading; ii. however, the Plaintiffs had purportedly failed to disclose information that would have adversely affected the MIMS’ valuation of Melorita’s business and subsequently MIMS willingness to purchase the same; iii. the Plaintiffs have therefore breached Clause 9.1 of the SPA Agreement and had caused MIMS to suffer loss and/or damages in the sum of RM29,549,877.00; and iv. the information that the Plaintiffs had purportedly failed to disclose was in relation to a visa restriction in Saudi Arabia, where Melorita’s main client, namely the KAMC Group, is located.

6.5 On 16.03.2020, the Arbitral Tribunal issued the Final Award, allowing MIMS’s claims against the Plaintiffs as follows: “(1) The Respondents are jointly and severally liable to pay to the Claimant the following amounts:

(a) MYR 12,180,327.

(b) Simple interest at 5% per annum on the aforesaid amount of MYR 12,180,327 from 9 June 2017 until payment.

(c) The Claimant’s legal costs and disbursements in the amounts of S$460,705.46 and US$22,324 respectively.

(d) Simple interest at 5% per annum on the aforesaid amounts of S$460,705.46 and US$22,324 from the date of this Final Award until payment.

6.6 On 10.2.2021, MIMS filed OS 6 to recognize and register the Final Award.

6.7 On 24.2.2021, the Plaintiffs filed OS 9 seeking an order to set aside the Final Award. Parties’ contention OS 9 [7] The application under OS 9 is made pursuant to sections 37(1)(a)(iv), 37(1)(v), 37(1)(b)(ii) and/or 37(2)(b) of the Act where the Plaintiffs sought for the Final Award to be set aside due to the following grounds:

7.1 that the Arbitral Tribunal has acted in excess of jurisdiction in arriving at the Final Award as the Arbitral Tribunal had decided on the issue of recruitment freezing that was never pleaded by MIMS in its Statement of Claim in the Arbitration proceeding;

7.2 the Final Award is in conflict with the public policy of Malaysia in that a breach of natural justice had occurred in connection with the making of the award within the meaning of sections 37(1)(b)(ii) and 37(2)(b) of the Act;

7.3 the Arbitral Tribunal has acted in breach of natural justice in arriving at the Final Award where: i. the Arbitral Tribunal had failed to ensure that the Plaintiffs were given adequate notice to address an issue that was wrongfully redefined in the course of the Arbitration proceedings; ii. the Arbitral Tribunal had only considered MIMS’s misleading interpretation and understanding of a material piece of evidence in coming to its finding, while failing to consider the fact that the Plaintiffs did not have the opportunity to address the same; and iii. the outcome of the Arbitration proceedings as well as the findings of the Final Award would be materially different had the Plaintiffs be given the opportunity to properly address the issue that was wrongfully redefined in the Arbitration proceedings. [8] In resisting OS 9, MIMS submitted as follows:

8.1 the issue of recruitment freeze was sufficiently pleaded and forms part of the subject matter referred for determination by way of Arbitration, namely the diminution in value of Melorita;

8.2 the Plaintiffs’ complaint of the non-pleading of the recruitment freeze issue was only raised for the first time in submission in the Arbitration, and they chose not to take issue with it at the first opportunity;

8.3 the Final Award is made within the Arbitral Tribunal’s jurisdiction and were based upon the pleadings, submission of parties and evidence led in the course of the Arbitration; and

8.4 the present grounds to resist the recognition of the Final Award are not supported by the contemporaneous arbitral records and if at all, are simply an attempt to circumvent what is a regular, final and binding Final Award. OS 6 [9] The principle arguments put forward by MIMS to support OS 6 are:

9.1 Clause 15.2 of the SPA Agreement dated 3.5.2017 between MIMS and the Plaintiffs is an agreement for arbitration (“Arbitration Agreement”), pursuant to which MIMS commenced the Arbitration against the Plaintiffs by way of the Notice of Arbitration dated 19.3.2018;

9.2 the subject matter of the dispute arising from the Arbitration is within the scope of the Arbitration Agreement;

9.3 the Arbitral Tribunal after having heard evidence, made the Final Award in favour of MIMS; and

9.4 the Plaintiffs have to date failed, refused and/or neglected to abide by the terms of the Final Award in whole or in part. [10] With regards to MIMS’s contention in OS 6, the Plaintiffs reiterated the submissions made for OS 9. In short, the Plaintiffs urged this Court to refuse OS 6 for the following reasons:

10.1 the Final Award deals with an issue not contemplated and not falling within the issues determined for submission in the Arbitration proceedings;

10.2 the Final Award contains decisions on matters beyond the scope of the submission in the Arbitration proceedings; and

10.3 the Final Award is in conflict with the public policy of Malaysia as a breach of natural justice had occurred during the Arbitration proceedings, as well as in connection with the making of the Final Award. [11] The contention proffered by both parties will be examined below. [12] It is worth mentioning that prior to the hearing, parties have agreed that OS 9 is to be heard and disposed first, with OS 6 to be determined immediately after. It was also the common position of parties that in the event OS 9 is dismissed, what must follow is that OS 6 ought to be allowed and vice-versa. Premised on this agreement, this Grounds of Judgment will analyse substantively submission of parties in OS 9 which in turn, became the basis of this Court in allowing OS 6. Analysis OS 9 [13] Broadly, there are two (2) aspects to the Plaintiffs’ challenge on the Final Award under section 37of the Act: i. that the Arbitral Tribunal had exceeded their jurisdiction i.e. the Final Award deals with a dispute beyond the terms and scope of the submission to arbitration within the meaning of sections 37(1)(a)(iv) and (v) of the Act (Challenge on Jurisdiction); and ii. that the Final Award is in conflict with the public policy of Malaysia in that a breach of natural justice had occurred in connection with the making of the award within the meaning of sections 37(1)(b)(ii) and 37 (2)(b) of the Act (Challenge Breach of Natural Justice). The challenge on jurisdiction [14] The Plaintiffs’ complaint emanates from the clarification sought by the Arbitral Tribunal members after counsel for MIMS made his Opening Statement. The transcript relating to the said clarification reads as follows: Chairperson : Just to make sure we're all clear, when you say "the fact it should have been disclosed", that is the fact of the recruitment freeze; is that right? Mr Khoo : Yes, indeed. Chairman : Yes. Mr Nadkarni : Sorry. That's the fact of the recruitment freeze or the fact of the visa restriction? Reading your statement, I wasn't clear which is in your pleading. Mr Khoo : ... We say that the recruitment freeze was the manifestation, was the symptom. What caused it, we believe, was the visa restriction. So yea, when we refer to the fact, I think it would be accurate to say that both the recruitment freeze and the cause of it, which was the visa restrictions. Mr Thambiayah : From what you've just said, I understand the case to be that, whatever the cause, it was the freeze that's the critical factor. Mr Khoo : The freeze was certainly the critical factor, because that would have really alarmed the buyer, knowing t that the most important client in that period was effectively lost. Chairperson : How far do you go, Mr Khoo? Are you saying that there was a visa restriction and a recruitment freeze policy of the Saudi government or are you simply saying that, as a fact, there were visa restrictions and there was a recruitment freeze being pursued by KAMC? Mr Khoo : We know that there was a recruitment freeze, insofar as KAMC was concerned. You will hear testimony that when MIMS sent their representative Ms Guli to meet KAMC post-acquisition, the KAMC representative informed her that the recruitment freeze was pursuant to visa restrictions. Now, whether there was a far-reaching policy that affected all hospitals, quite frankly, I don’t think we know. I don't think MIMS knows. But what we know is there was, in fact, a recruitment freeze, and what was told to them by KAMC was that this arose because of the visa restriction that KAMC was faced with. Chairperson : So your case is the fact that should have been disclosed was the fact of a recruitment freeze by KAMC? Mr Khoo : Absolutely. [15] The duty of this Court is to determine whether the above had resulted in a recharacterization of MIMS’s case. The determination of this case must be seen from the context of whether the emphasis on the recruitment freeze resulted in the arbitration proceedings falling out of scope and thus attracting a contravention of the Act. [16] It is perhaps apposite to reproduce the submission of the Plaintiffs before this Court. Learned Counsel submitted as follows: “53 To reiterate, the Claim centred on whether there was a visa restriction imposed on the KAMC Group in respect of which Sharina et al had purportedly did not disclose. Instead, the issue had turned into a dispute on:

53.1. whether KAMC Group was facing a visa restriction; and/or

53.2. whether the KAMC Group was facing a ‘recruitment freeze’.” [17] The Plaintiffs relied on the Court of Appeal decision in Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 6 MLJ 126 where the principle “that the arbitrator must not decide on a “new difference” which is irrelevant to the claim” was first established. The court held as follows: “[22] The learned High Court judge considered the background facts in some detail. Her Ladyship also evaluated the issues formulated by the arbitrator, as agreed and modified by both parties. Her Ladyship considered the detailed finding of the arbitrator, which was quoted in extenso, but concluded that the arbitrator had decided on a dispute which was not contemplated by, or not falling within the terms of the submission to arbitration. This is an area of arbitration law which allows the court to set aside an award on the ground that an arbitrator had decided on a ‘new difference’ which is irrelevant to the claim, the ‘new difference’ being understood as a new dispute not contemplated by or not falling within the terms of the arbitration submission. The underlying rationale for this rule rests on the consensual nature of arbitration. Parties are not compelled to resort to arbitration contractually, but if they provide for it and refer their dispute to arbitration, the mandate of the arbitrator must be limited to the terms defined by the parties for him to exercise his jurisdiction. If the arbitrator strays from the confines of this mandate, he will be acting in excess of his jurisdiction, even though he may have the initial and primary jurisdiction to arbitrate between the parties. This rationale is stated succinctly by the Court of Appeal, Singapore in PT Prima International Development v Kempinski Hotel SA & Other Appeals [2012] SGCA 35: “An arbitral tribunal has no jurisdiction to resolve disputes which have not been referred to it in the submission to arbitration. Simply put, a party cannot raise a new dispute in an arbitration without the consent of the other party. These propositions f low inexorably from the consensual nature of arbitration.” (Emphasis added) [18] From the decision of Kerajaan Malaysia, it is clear that what would be objectionable is if the Arbitral Tribunal had decided on a ‘new difference’ which is irrelevant to the claim, the ‘new difference’ being understood as a new dispute not contemplated by or not falling within the terms of the arbitration submission. [19] In other words the Arbitral Tribunal has no jurisdiction to resolve disputes which have not been referred to it in the submission to arbitration. A party cannot raise a new dispute in an arbitration without the consent of the other party. (See PT Prima International Development v Kempinski Hotel SA & Other Appeals [2012]) [20] What must be done is to examine if at all a “new dispute” was raised outside of the pleadings and documents before the Arbitral Tribunal. It must be something never contemplated by parties to the arbitration. Whether the clarification and stand taken by the Arbitral Tribunal amounted to creating a “New Difference” [21] It is the view of this Court that the manner the Arbitral Tribunal addressed the recruitment freeze issue during clarification did not take it outside the scope of the Arbitration or created a new dispute. The Plaintiffs were not prejudiced by the emphasis made by the Arbitral Tribunal on the issue of recruitment freeze for the following reasons: A. Recruitment freeze and visa restriction are factually interconnected [22] There was nothing in the clarification that could be read that the Arbitral Tribunal ruled that the case of MIMS was to be refocused to emphasise on Recruitment Freeze. MIMS’s claim against the Plaintiffs was from the very outset based on the Plaintiffs’ non-disclosure of the fact that there was a cessation of usual recruitment by the KAMC Group and hospitals in Saudi Arabia. This resulted in a diminution of the value of the Melorita shares purchased by MIMS, which MIMS sought recompense for by way of the Arbitration. MIMS’ pleaded case was that this reduction in recruitment was caused by a recruitment freeze; [23] Even if recruitment freeze was emphasised and taken as a separate issue, it did not take away the factual nexus to the visa restriction. It was not possible to do so as recruitment freeze was an issue that featured throughout the pleadings and documentation before the tribunal; [24] It had always been the case of MIMS that there was a recruitment freeze. Thus, to argue that the Plaintiffs were prejudiced as a result of the emphasis on recruitment freeze resulting in a “recharacterization” of the scope or arbitration is unsustainable; [25] The Plaintiffs’ argument that they were severely prejudiced by the recharacterization of MIMS’s case is therefore unfounded. The Plaintiffs knew the case of MIMS right from the inception of the reference to arbitration; and [26] This Court finds it difficult to accept that a recruitment freeze was never contemplated when the matter was referred to Arbitration. B. Sufficient notice had been given to the Plaintiffs [27] From a perusal of the arbitral records it is obvious that the Plaintiffs were aware of the recruitment freeze issue. This can be seen from MIMS’ letter of demand dated 16.1.2018. It gave notice to the Plaintiffs even prior to the commencement of Arbitration that the focus of MIMS’ claim against them was the issue of recruitment freeze and recruitment restriction. The salient paragraphs of the letter are reproduced below: C. Recruitment freeze sufficiently pleaded [28] In MIMS’ Statement of Claim at the Arbitration dated 21.9.2018, MIMS repeated the issue raised in the Letter of Demand, highlighting the Plaintiffs’ silence about usual recruitment having been “halted”, put “on hold” and withheld. The salient paragraphs from the Statement of Claim are reproduced below: [29] Therefore, the recruitment freeze or a reduction in recruitment formed the basis of MIMS’ claim from the outset of the arbitration proceedings. [30] The Arbitral Tribunal in its Final Award had considered the issue of the sufficiency of pleadings and after considering arguments of parties, made the finding that “the question of a recruitment freeze by the KAMC Group and its consequences” has been sufficiently pleaded and “is well within this Tribunal's jurisdiction”. The Arbitral Tribunal held:- “53. First, in the Tribunal's opinion, MIMS sufficiently pleaded the issue of an alleged recruitment freeze. This is apparent from the following paragraphs of the Statement of Claim:

After the visit, on 21 November 2016, KAMC wrote to Melorita stating that "[with] regard to the vacancies and as per government directive, recruitment shall be on hold for the time being.

On 23 November 2016, Melorita confirmed KAMC's instructions and stated that it would "withhold submission of files with immediate effect. …

The Austerity Disclosure, however: (a) did not make any reference to the Visa Restriction; (b) did not explain that the KAMC Group, and other Saudi Hospitals, requested that Melorita stop submitting candidates to them; (c) did not mention that Melorita stopped submitting files to the KAMC Group, and other Saudi Hospitals, due to the Visa Restriction; ... ”. (Emphasis added) [31] As such, the Arbitral Tribunal had made it clear in their award that MIMS sufficiently pleaded the issue of recruitment freeze in its pleadings. The said observation was certainly due to the submissions of the Plaintiffs’ counsel at the end of the case. This demonstrates that the Arbitral Tribunal was aware of the issue raised by the Plaintiffs. They felt that they were able to determine the issue as it was sufficiently pleaded. D. Witness statements contained specific reference of recruitment freeze [32] It must be borne in mind that the Plaintiffs had early notice of MIMS’ pleaded “recruitment freeze” issue when MIMS produced its witness statements for the Arbitration proceedings on 29.3.2019, which addressed the “recruitment freeze”. [33] As such it cannot be denied that the Plaintiffs were aware of the evidence that was to be adduced during the trial well before the day the matter was sat for adjudication. E. Non-objection by Plaintiffs [34] It is the view of this Court that the stand taken by the Plaintiffs at the tribunal proceedings is not consistent with the position taken in this current proceeding. If the Plaintiffs felt that the Arbitral Tribunal should not treat the recruitment freeze as a separate issue, counsel should have voiced his views immediately. If at all the said issue i.e. recruitment freeze was not to be determined separately as currently argued, an objection should have been taken immediately during the clarification. [35] The Plaintiffs were represented by experienced counsel. To now argue that they had been prejudiced and taken aback at this juncture reeks an element of afterthought on the part of the Plaintiffs. [36] This Court accepts the argument of MIMS that the Plaintiffs had the opportunity pursuant to section 18 of the Act to challenge the Arbitral Tribunal’s authority to deal with the recruitment issue as soon as the matter was raised either in the Statement of Claim, witness statements or when MIMS’ counsel put it beyond doubt that it will pursue the matter. [37] It was also open to the Plaintiffs to seek an adjournment of the Arbitration for the Plaintiffs to prepare their defence, if indeed they were so taken by surprise. However, the Plaintiffs waived their right and chose not to do so at the material time. Consequently, they are estopped from complaining in this forum. [38] The miscalculation on the art of the Plaintiffs was in leaving the objection to the end of the case. The Plaintiffs had simply lost the opportunity to engage with the Tribunal. [39] The failure of the Plaintiff at the proceedings to register their objection is a waiver of their statutory right. The Plaintiff cannot wait in lie in ambush and seek to challenge at the conclusion of the proceedings. [40] The Arbitral Tribunal expressed their views on the matter as follows as found in the Final Award: “54. Thereafter, in his opening statement, the Respondents' counsel (Mr. Navaratnam) did not object to what Mr. Khoo had said in relation to MIMS' case on the recruitment freeze. No suggestion was made that the Respondents were caught by surprise or were not in a position to adduce evidence to rebut the allegation of a recruitment freeze by the KAMC Group. Instead, Mr. Navaratnam stated that it was the Respondents' case that: [l]n the last quarter of 2016, there was a financial crisis in Saudi Arabia. There were severe austerity measures taken. And it was in that context there was a recruitment freeze, and it was in that context that there were some difficulties in getting visas, except that the evidence will show that visas were actually being granted for job offers that had actually been made prior to that period, all the way through from the last quarter of 2016 all the way through to the middle of 2017. This is a matter of record. So the suggestion that there has been a visa freeze is a little but - I mean, it's not borne out by the facts.

In those premises, the question of a recruitment freeze by the KAMC Group and its consequences is well within this Tribunal's jurisdiction.”. (Emphasis Added) [41] From the remarks of counsel for the Plaintiffs at the arbitration, it is clear that the Plaintiffs were aware that recruitment freeze was a key issue. To the Arbitral Tribunal nothing objectionable was put forward when clarification was sought. [42] The Arbitral Tribunal cannot be faulted for seeking clarification in the manner it did. It is the view of this Court the clarification did not reshape the case and did not result any new difference. The pleadings and the witness statements together with earlier demands made by MIMS support this conclusion even more. It is trite that an Arbitral Tribunal should be considered as the master of facts and of the procedure to be applied (See Majlis Amanah Raya v. Kausar Corporation [2005] MLJU 16; [2011] 2 AMR 315) Findings on the jurisdictional challenge [43] It is the view of this Court that the Arbitral Tribunal did not realign the case of MIMS to the extent described by the Plaintiffs. Looking from the perspective of the Arbitral Tribunal, they were identifying the source of the recruitment freeze. [44] If it was established that KAMC did face such a problem the simple issue was whether the Plaintiffs disclosed such recruitment freeze to MIMS. The case of MIMS is that such disclosure was not made. If MIMS had known that there was a recruitment freeze as a result of the Saudi Government’s stand to reduce the number of visa issuance, the valuation of the purchase consideration would have been adjusted accordingly, to reflect the lower number of recruitments by KAMC. That is the simple issue. [45] To this Court, it was clear to the Arbitral Tribunal, from the evidence presented by the witnesses, the Plaintiffs knew that there was a slowdown but chose not to disclose the figures from October 2018 onwards. The figures that were given were only up to September

This is the issue that was to be determined by the Arbitral Tribunal. [46] It did not matter if the Arbitral Tribunal only made a single reference to visa restriction as seen at paragraph 65 of the Award. Importantly the Arbitral Tribunal did not in skip or forget to consider the said issue. [47] This Court finds it difficult to accept that there was any issue of the Arbitral Tribunal extending the scope of arbitration or created a “new difference”. Both parties knew that the issue was whether MIMS was told that there was a possibility of a drop in the hiring by KAMC as a result of the Saudi Government’s decision to impose visa restrictions. [48] The Notice of Demand and the pleadings are clear. The insistence by the Plaintiffs that the there was a new stand alone issue raised by the Arbitral Tribunal as a result of the clarification between the Arbitral Tribunal and MIMS’s counsel is simply an attempt to split hairs. [49] As reasoned by this Court, the recruitment freeze and the visa restriction are interconnected. The Arbitral Tribunal’s clarification at the commencement of proceedings did not set the stage for a new difference as described by the Plaintiffs. Even if there was such an emphasis, the Plaintiffs were not prejudiced as ample notice had been given to them on the said issue. [50] To say recruitment freeze was never contemplated or never an issue before the Arbitral Tribunal have raising the “new difference” argument is therefore rejected. [51] It bears emphasis that the threshold to set aside an arbitral award is high. S. 8 AA 2005 provides that "No court shall intervene in matters governed by this Act, except where so provided in this Act." The Federal Court in Jan De Nul (M) & Anor v. Vincent Tan Chee Yioun & Anor [2019] 1 CLJ 1; [2019] 2 MLJ 413 stated: "[57] The court must evaluate the nature and impact of the particular breach in deciding whether the award should be set aside under s.

The court must also consider the background policy of encouraging arbitral finality and minimalist intervention approach to be adopted in line with the spirit of UNCITRAL Model Law. The effect of ss. 8, 9, 37 and 42 of the AA 2005 is that the court should be slow in interfering with or setting aside an arbitral award. The court must always be reminded that constant interference of arbitral award will defeat the spirit of the AA 2005 which for all intent and purposes, is to promote one-stop adjudication in line with the international practice (see: Ajwa For Food Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd & another appeal [2013] 2 CLJ 395;; [2011] MLJU 1537; Taman Bandar Baru Masai Sdn Bhd v. Dindings Corporations Sdn Bhd [2010] 5 CLJ 83; [2009] MLJU 793 and Lesotho Highlands Development Authority v. Impregilo SpA and others [2005] UKHL 43). In this regard, the court needs to recognise the autonomy of the arbitral process by encouraging finality; and its advantage as an efficient alternative dispute resolution process should not be undermined." (Emphasis added) [52] In Asean Bintulu Fertilizer Sdn Bhd v. Wekajaya Sdn Bhd and another appeal [2018] 2 CLJ 257; [2017] MLJU 1530, the Court of Appeal held as follows: “[19]...

(d) s. 36 will fortify the argument that the award is final and binding on the parties. Section 36 provision is not found in the model law. Section 36 places a higher threshold on the court when it intends to set aside an award related to a s. 37 application. In this respect, the decision from other jurisdiction which does not have a similar provision will not be helpful, save those cases which had dealt with the jurisprudence relating to 'patent injustice' or unconscionability, etc. Section 36 of the Act reads as follows:

An award is final and binding