Bellworth Developments Sdn Bhd v Setiakon Builders Sdn Bhd (W-02(C)(A)-1212-07/2024)

These appeals concern the setting aside and enforcement of a construction arbitration award.

The Appellant in both appeals is a private limited company.

The Respondent in both appeals is likewise a private limited company.

We heard the appeals on 5th February 2026 and subsequently reserved our decision in order to consider and deliberate upon the submissions and arguments advanced by the respective parties.

Having now done so, we set out below our decision together with the grounds in support thereof. For convenience, we shall first address the appeal relating to the setting aside of the arbitration award ), followed thereafter by the appeal concerning the enforcement of the same award ( ). S/N ladLS2Gir0ilm2qkpsWXRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

The Appellant is the developer of a mixed development project comprising several serviced apartment blocks together with podium facilities situated at Jalan Wan Kadir, Taman Tun Dr Ismail, Kuala Lumpur ( ).

By a Letter of Award dated 17th December 2012 ( ), the Appellant appointed the Respondent as the contractor to carry out and complete the superstructure works for the Project. The scope of works included, among others, the provision of labour, materials, plant, machinery, equipment, services, and supervision necessary for the execution and completion of the Project ( ).

Subsequently, on 2nd June 2014, the parties executed the PAM Agreement and Conditions of Contract 2006 (With Quantities), together with an addendum thereto (collectively referred to as ).

The LOA, the PAM Contract, and all related documents incorporated therein and read together formed the contractual framework governing the relationship between the parties ( ).

Pursuant to the Contract, the original completion date for the Works was fixed on 25th January 2015, being 25 months from the date of possession of the site.

During the course of the Project, the Respondent submitted three applications for extension of time ( S/N ladLS2Gir0ilm2qkpsWXRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 who acted as the contract administrator under the Contract ).

The granted, whilst the third application was rejected in its entirety. In total, only 162 days of extension of time were granted by the Architect. [13] Consequently, on 7th July 2015, the Architect issued a Certificate of Non-Completion ( ), certifying that the Respondent had failed to complete the Works by the revised completion date as extended.

Following the issuance of the CNC, the Appellant imposed liquidated and ascertained damages ( ) amounting to RM6,000,000.00 against the Respondent pursuant to the Contract, including a deduction of RM1,500,000.00 from Interim Certificate No. 34 otherwise payable to the Respondent.

Notwithstanding the imposition of LAD, the Respondent continued with the execution of the Works and maintained that the Works were substantially completed by the end of October 2015. However, the Architect declined to certify practical completion and refused to issue the Certificate of Practical Completion ( ) under the Contract at that material time.

Be that as it may, the Appellant took possession of substantial portions of the Works from January 2016 onwards. Thereafter, the Certificate of Completion and Compliance ( ) for the Project was issued on 28th January 2016 pursuant to the Street, Drainage and Building Act 1974, whilst the Architect subsequently issued the CPC for the Works on 15th March 2016. S/N ladLS2Gir0ilm2qkpsWXRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

Disputes subsequently arose between the parties in relation to, among others, the certification of extension of time, the validity of the CNC, and the imposition of LAD.

Consequently, on 6th August 2019, the Respondent referred the disputes to arbitration before a sole arbitrator, a practising advocate and solicitor with extensive experience in litigation and construction dispute resolution ( ). In the arbitration proceedings, the Respondent was the claimant whereas the Appellant was the respondent.

Following a lengthy arbitration proceeding, the Arbitrator delivered the final award dated 7th July 2023 ( ). Amongst others, the Arbitrator declared the CNC to be invalid and unlawful, and awarded the Respondent the sum of RM11,452,910.00 for unpaid work done, together with interest and costs.

Following the issuance of the Award, the Respondent commenced Kuala Lumpur High Court Originating Summons No. WA-24C(ARB)-35- 08/2023 ( ) on 15th August the ).

The Appellant, being dissatisfied with the Award, subsequently commenced Kuala Lumpur High Court Originating Summons No. WA- 24C(ARB)-41-09/2023 ( ) on 1st September 2023 seeking to set aside the Award ( ). S/N ladLS2Gir0ilm2qkpsWXRw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

After hearing Enforcement Application and Setting Aside Application and together, the learned Judge on 3rd July 2024 allowed Enforcement Application, O.S. 35 as follows:

(1)

Selaras daripada permohonan (1), Plaintif adalah bebas untuk memasukkan suatu penghakiman terhadap Defendan dengan terma-terma berikut:

satu deklarasi bahawa Perakuan Tidak Siap bertarikh 7 Julai 2015 adalah tidak sah;

satu deklarasi bahawa Defendan tidak berhak untuk meneruskan sebarang tuntutan dan/atau tolakan (set-off) terhadap Plaintif;

tuntutan Plaintif adalah sah dalam jumlah RM 11,452,910 yang hanya diawardkan kepadanya berkenaan dengan Ganti Rugi yang ditentukan (Liquidated Damages) yang ditolakkan secara salah, yang mana hendaklah dikembalikan dan dibayar kepada Plaintif;

Defendan hendaklah membayar Plaintif dalam tempoh tiga puluh (30) hari kalendar dari tarikh Award Muktamad, jumlah RM 11,452,910 sahaja dalam penyelesaian penuh dan muktamad bagi semua perkara yang berbeza dan dirujuk kepada pengadil dalam timbang tara ini;

Defendan hendaklah membayar faedah pada kadar mudah (simple interest) 5% setahun ke atas jumlah RM 11, 452,910 sahaja dari tarikh Notis Timbang Tara 6 Ogos 2019 yang diawardkan sebanyak RM 11, 452,910;

Defendan hendaklah menanggung dan membayar kos-kos dalam jumlah sebanyak RM 683,036.08 sahaja, yang merangkumi kos-kos S/N ladLS2Gir0ilm2qkpsWXRw Rujukan Plaintif dan Kos-Kos Award kepada Plaintif dan AIAC dalam tempoh tiga puluh (30) hari kalendar dari Award Muktamad;

Defendan hendaklah membayar faedah pada kaedah mudah (simple interest) 5% setahun ke atas jumlah RM 693,036.08, iaitu Kos-Kos Rujuan dan Kos-Kos Award dari tarikh Award Muktamad sehingga pembayaran penuh Defendan dengan kos.

Kos sebanyak RM 20K dibayar oleh Defendan kepada Plaintif, tertakluk kepada fi alokatur. [23] Furthermore, the learned judge dismissed Setting Aside Application, O.S. 41 as follows: dibayar oleh Plaintif kepada Defendan tertakluk kepada fil alokatur. Both the order made in Enforcement Application and Setting Aside Application are collectively hereinafter as . [24] The learned Judge held, amongst others, as follows in the grounds of judgment which have been reported as Setiakon Builders Sdn Bhd v. Bellworth Development Sdn Bhd and Another Case [2024] MLRHU 2675: er Subparagraph 37(1)(a)(vi) AA 2005 As The Submission Of The Draft Final Award For Technical Review Was Not In Accordance With r 12(2) Of The AIAC Rules Thereby Depriving The Arbitrator Of His Mandate And He Has No Jurisdiction To Make A Valid Award [50] I have considered the submissions of the parties and in my view, r 12(2) AIAC Rules clearly provides that the arbitral tribunal shall submit the Draft Final Award to the Director of AIAC within three months for a technical review and that the period of three months shall start to run from the date when the arbitral tribunal declares the proceedings closed pursuant to r 12(1). S/N ladLS2Gir0ilm2qkpsWXRw [51] Here, the Arbitrator declared the proceedings closed as of 19 January 2023 (see his letter to the parties and copied to AIAC dated 28 February 2023). Therefore, the time limit of three months shall start to run from 19 January 2023. In computing the period of three months from 19 January 2023, the Arbitrator was required to submit the Draft Final Award to the Director of AIAC on 18 January 2023 (the case of Migotti v. Colvill (supra) applied). [52] The Court is unable to agree with Setiakon's submission that the three months period shall run from 28 February 2023, the date of the Arbitrator's letter, and that art 2.6 of the UNCITRAL Arbitration Rules or ss 2, 3 and 105 of Act 388 apply in the instant case. The AIAC Rules have not been published in the Gazette and are thus, not "subsidiary legislation" within the meaning of Act 388 (see sub-section 86(1) Act 388). [53] In my view, the express words in r 12(2) AIAC Rules are clear and it will be contrary to these express words if Setiakon's submission on art 2.6 of the UNCITRAL Arbitration Rules or Argument No 2 is accepted. [54] Nevertheless, I am persuaded by Setiakon's Argument Nos 3 and 4, among others, that:

there are fundamental differences between the facts in the instant case and in Ken Grouting (supra) where rr 12(1) and 12(2) of the AIAC Rules govern the submission of the Arbitrator's Draft Final Award to the Director of AIAC for technical review and not the delivery of the Final Award to the parties. The timeline for delivery of the Draft Final Award as opposed to a Final Award under Article 21.3 of the PAM Arbitration Rules does not go to the Arbitrator's mandate and jurisdiction; and

even if Bellworth has established a case under subparagraph 37(1)(a)(vi) AA 2005, the Court is inclined to exercise its discretion in not setting aside the Award for the reasons as submitted by Setiakon. Moreover, the delay in this case is merely one day. [55] However, I am not convinced of Setiakon's submission under Argument No 3 that by proceeding with the technical review of the Draft Final Award, the Director of AIAC had tacitly or by conduct extended the time limit under Rule 12(3) AIAC Rules. This is because r 12(3) AIAC Rules clearly provides that the time limit may be extended by the Arbitral Tribunal with the consent of the parties and upon consultation with the Director. It is only in the situation where there is no consent by the parties that the Director may further extend the time limit if deemed necessary. I am not prepared to say that Rule 12(3) AIAC Rules goes so far as allowing an EoT to be implied by the conduct of the Director of AIAC. S/N ladLS2Gir0ilm2qkpsWXRw 2nd Ground: Whether The Award Should Be Set Aside Under Subparagraphs 37(1)(a)(iv) and (v) AA 2005 as the Arbitrator Introduced And Decided On A New Difference Ie The Validity Of The Cnc And Bellworth's Entitlement To Impose Ld As A Stand-Alone Issue Independent Of Setiakon's Applications For EoT 3rd Ground: Whether The Award Should Be Set Aside On The Ground That Bellworth Was Unable To Present Its Case; The Arbitral Procedure Was Not In Accordance With The Agreement Of The Parties; And The Award Is In Conflict With The Public Policy Of Malaysia As A Breach Of The Rules Of Natural Justice Occurred In Connection With The Making Of The Award Under Subparagraphs 37(1)(a)(iii) and (vi) and 37(1)(b)(ii) Read Together With 37(2)(b)(ii) AA 2005 [68] I have scrutinised the parties' pleadings and submissions in the arbitration proceedings and find that the Award did not involve any matter which came within the meaning of a "new difference" which is irrelevant to the issues requiring determination by the Tribunal. The following are my justifications for this finding:

Apart from perusing the pleadings by the parties in the arbitration proceedings, I also had the benefit of the "Relevant Extract To Show That The Invalidity Of CNC Has Been Pleaded" which was prepared by Mr Lam Wai Loon and his competent associates (encl 160). Based on these relevant extracts, the issue of the validity of the CNC was expressly and specifically pleaded in Setiakon's Statement of Case (see for example, para 160) and Statement of Reply (see for example, paras 54 and 55) and was included in Setiakon's Closing Submission (see for example, para 64) and Closing Reply Submission where in para 65, it was contended that: "Without prejudice to the above, the Claimant again highlights that whilst the Architect had, in his letter dated 19 June 2015, gave the Claimant 28 days to submit all particulars to justify the Claimant's EOT No 3 Application (ie by 17 July 2015), the Architect nevertheless proceeded to issue the CNC on 7 July 2015, which was before the 28 days period had lapsed. It is clear from this that the Architect had no intention to even assess the Claimant's EOT No 3 Application. It appears as though the Architect was not anticipating any response from the Claimant.". Bellworth itself had pleaded accordingly in response to Setiakon's statements. S/N ladLS2Gir0ilm2qkpsWXRw The issue of the validity of CNC was linked to the application for EoT No 3 by Setiakon to the Architect. The facts as to the application for EoT No 3; that the Architect had failed to assess Setiakon's applications for EoT, including EoT No 3; that the Architect had failed to assess all applications for EoT and therefore this rendered the CNC invalid were all pleaded (see for example, paragraphs 23, 24, 159 and 160 of the Statement of Case).

The allegation of non-pleading was raised by Bellworth in its written submissions and this was addressed by the Arbitrator in the following part of the Award: "(129) On the facts, the Claimant contends that the Architect's letter of 19 June 2015 had given the Claimant a 28 days period to submit all information or particulars to justify the Claimant's EOT No 3 Application. Even before the 28 days period had lapsed, which would have been on 17 July 2015, the Architect had proceeded to issue the CNC on 7 July 2015. According to the Claimant, this was not disputed by the Architect who confirmed that she knew that the Claimant's EOT was pending when the CNC was issued. It was therefore clear, according to the Claimant that the Respondent was not anticipating a response from the Claimant and had acted in breach of cl 23.3 of the PAM Contract, having given the Claimant 28 days to respond.

The Respondent on the other hand first raises the objection that this contention of the Claimant is not a pleaded position of the Claimant and that on this basis alone, the Tribunal ought not to entertain this challenge by the Claimant at the closing stage of the proceedings.

The Tribunal finds that this assertion of the Claimant's position not being pleaded as being without merit. On the contrary, the Claimant has adequately pleaded the facts pertaining to the 19 June 2015 letter by the Architect, and the fact that the Architect failed to consider and assess EOT No. 3 and instead proceeded to issue CNC on 7 July 2015. This is found at paras 159 and 160 of the SOC. In its final relief, the Claimant seeks a declaration that the CNC is invalid (paragraph 210(i)), a declaration that the Respondent is not entitled to pursue any claims and / or set off the Claimant for liquidated damages (paragraph 210(iii)), and seeks an order that the S/N ladLS2Gir0ilm2qkpsWXRw sum of RM11,452,910.00 which was wrongly deducted by the Respondent as liquidated damages to be returned and paid to the Claimant (paragraph 210(iv)).

The Tribunal therefore does not see how the Respondent's objection of a non-pleaded case can stand.".

Setiakon had sought for specific relief by way of a declaration that the CNC is invalid and that Bellworth is not entitled to pursue any claims or set off against Setiakon for LD. The issues concerning the validity of the CNC and imposition of LD formed part of the Agreed Issues. Undoubtedly, these issues fell within the scope of submission to the Arbitrator. The Arbitrator decided that the CNC is invalid. This decision is well within the jurisdiction conferred upon him.

The arbitration agreement contained in the PAM Contract conferred various powers upon the Arbitrator, including the power "to open up, review and revise any certificate, opinion, decision, requirement or notice" [see cl 34.8(d)]. The words "any certificate" includes the CNC. In reviewing the CNC, the Arbitrator has the power to determine whether the Architect had complied with the due process under cl 22.1 of the PAM Contract before issuing the CNC. The Arbitrator found that the Architect had failed to undertake this process and therefore the Architect could not have formed the required opinion. This is a finding of fact and law by

The Arbitrator took the view that the CNC is invalid because the Architect could not have formed the required opinion under cl 22.1 of the PAM Contract due to the Architect's failure to consider or assess the application for EoT No. 3 despite the fact that she had invoked cl 23.3 of the PAM Contract to ask Setiakon to provide further particulars. It is fallacious for Bellworth to now contend that Setiakon's plea for invalidity of the CNC was that it must be inextricably linked to, and dependent only on, Setiakon's entitlement to additional EoT. The finding of the invalidity was due to the Architect's failure to consider or assess the application for EoT No 3, which was pleaded. There is no "new difference" as alleged by Bellworth.

Bellworth's complaint about the "new difference" was, in essence, that the Arbitrator had decided the issue of validity of S/N ladLS2Gir0ilm2qkpsWXRw the CNC independently of Setiakon's entitlement to EoT, which Bellworth contends the Arbitrator should not have. I agree with Setiakon's submission that this grievance goes to the manner in which the Arbitrator had reached his decision and that Bellworth is essentially questioning the soundness of his decision. This is not a matter concerning jurisdiction, but touches on the merits or findings made by the Arbitrator. [69] With regards to Bellworth's other claims in relation to the 3rd Ground, apart from the point on a "new difference", judging from the pleadings, submissions and the conduct of the arbitration proceedings as a whole, I am satisfied that both parties were given a fair opportunity to present their respective case and they have submitted on the issues in dispute at length. [70] The Arbitrator had deliberated on the Agreed Issues, including on the validity of the CNC, based on the parties' pleaded case and submissions. His findings and decision in the Award are not in conflict with any public policy and do not breach any rule of natural justice. Bellworth has simply not fulfilled the requirements as laid down in Jan De Nul (supra) and Master Mulia (supra) and proven, on a balance of probabilities, that the Award should be set aside under the provisions of the AA as it had cited. [71] Since the foundation for the 2nd and 3rd Grounds as advanced by Bellworth is premised on a "new difference", and upon the finding of the Court that Bellworth has not established there is a "new difference", both these Grounds of challenge must fail. The Enforcement Application [106] Setiakon's application was made pursuant to s 38 AA which provides as follows: "Recognition and enforcement "38. (1) On an application in writing to the High Court, an award made in respect of an arbitration where the seat of arbitration is in Malaysia or an award from a foreign State shall, subject to this section and section 39 be recognized as binding and be enforced by entry as a judgment in terms of the award or by action.

In an application under subsection (1) the applicant shall produce: S/N ladLS2Gir0ilm2qkpsWXRw

the duly authenticated original award or a duly certified copy of the award; and

the original arbitration agreement or a duly certified copy of the agreement. ...". [107] In the light of the findings and conclusions of the Court in respect of the 1st to the 4th Grounds as discussed above, Bellworth has not discharged the burden of proving, on a balance of probabilities, that the Award should be set aside pursuant to the specific grounds which it had relied upon under s 37 AA

[108] Setiakon, having complied with the requirements of s 38 AA 2005, is [25] The Appellant is again dissatisfied with the Decisions and has on 18th July 2024 filed two separate appeals which are Appeal 1212 (Setting Aside Appeal) and Appeal 1214 (Enforcement Appeal). [26] The Respondent also filed a notice of cross-appeal in Appeal No. 1212 on 7th October 2024 that the relevant deadline for submission of the draft Award was either 28th May 2023, or alternatively, 19th April 2023 if the three-month period is computed from 19th January 2023. FINDINGS OF THIS COURT [27] It is trite that our appellate function is review of the Decisions. Thus, it is aptly set out as follows in Vasudevan v. T Damodaran & Anor [1981] 1 MLRA 24 by Abdoolcader J (later FCJ) with emphasis added by us: "There is a catenation of cases on this point and it will suffice to cull and refer to a few which restate the well-settled principles. An appellate court can review questions of discretion if it is clearly satisfied that the judge was S/N ladLS2Gir0ilm2qkpsWXRw wrong but there is a presumption that the judge has rightly exercised his discretion and the appellate court must not reverse the judge's decision on a mere "measuring cast" or on a bare balance as the mere idea of discretion involves room for choice and for differences of opinion (Charles Osenton & Co v. Johnston [1942] AC 130 (at p 148), per Lord Wright). The Privy Council held in Ratnam v. Cumarasamy & Anor [1964] 1 MLRA 599; [1965] 1 MLJ 228 that an appellate court will not interfere with the discretion exercised by a lower court unless it is clearly satisfied that the discretion had been exercised on a wrong principle and should have been exercised in a contrary way or that there has been a miscarriage of justice, referring to Evans v. Bartlam [1937] AC 473. The House of Lords, approving the decision of the English Court of Appeal in Ward v. James [1966] 1 QB 273, held to the same effect in Birkett [1978] AC 297 (at pp 317, 326). For good measure, we would refer to the felicitous expression of Goulding J., in Re Reed (a debtor) [1979] 2 All ER 22 on this point (at p 25): "... the duties of an appellate court in such a matter as this are, in my judgment, confined to those normally exercisable where the lower court has a discretion, that is to say, we are not justified in setting aside or varying an order simply because we may think we might have come to a different conclusion ourselves on similar material. We can only interfere if either we can see that the court below has applied a wrong principle, or has taken into account matters that are in law irrelevant, or has excluded matters that it ought to have taken into account, or otherwise that no court, properly instructing itself in the law, could have come to the conclusion which in fact was arrived at." APPEAL 1212 (SETTING ASIDE APPEAL) [28] As succinctly set out by the and grievances in this appeal may be reduced to the following three principal issues justifying the setting aside of the Award: i. The draft of the Award submitted by the arbitrator on 19th April 2023 for technical review by the AIAC Director was allegedly late by a day and non-compliant with Rule 12(2) Part 1 AIAC S/N ladLS2Gir0ilm2qkpsWXRw Rules. This one-jurisdiction and mandate to issue a final award after the draft has been approved by the AIAC Director; ii. dated 19th June 2015 to invalidate the CNC . The Appellant claimed not to have been afforded the opportunity to address the effect of the 19th June 2015 letter which was an excess of jurisdiction which breached the rules of natural justice and public policy; and iii. finding the CNC is invalid was illogical, inconsistent and/or defective. [29] The setting aside of an arbitration award is governed by s. 37 of the Arbitration Act 2005 ( ) which provides as follows:

Application for setting aside

An award may be set aside by the High Court only if:

the party making the application provides proof that:

a party to the arbitration agreement was under any incapacity;

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of Malaysia;

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party's case; S/N ladLS2Gir0ilm2qkpsWXRw

(iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

subject to subsection (3), the award contains decisions on matters beyond the scope of the submission to arbitration; or

(vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this act; or

the High Court finds that:

the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or

(ii) the award is in conflict with the public policy of Malaysia.

Without limiting the generality of subparagraph (1) (b) (ii), an award is in conflict with the public policy of Malaysia where

the making of the award was induced or affected by fraud or corruption; or

a breach of the rules of natural justice occurred:

during the arbitral proceedings; or

(ii) in connection with the making of the award.

Where the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside.

An application for setting aside may not be made after the expiry of ninety days from the date on which the party making the application had received the award or, if a request has been made under section 35, from the date on which that request had been disposed of by the arbitral tribunal.

Subsection (4) does not apply to an application for setting aside on the ground that the award was induced or affected by fraud or corruption.

On an application under subsection (1) the High Court may, where appropriate and so requested by a party, adjourn the proceedings for such S/N ladLS2Gir0ilm2qkpsWXRw period of time as it may determine in order to allow the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside.

Where an application is made to set aside an award, the High Court may order that any money made payable by the award shall be brought into the High Court or otherwise secured pending the determination of the application. [30] Next, it is gainworthy to set out the jurisprudence on setting aside an arbitration award pursuant to the Arbitration Act 2005 ( ) as laid down by the trilogy of cases of the Federal Court. [31] First in Far East Holdings Bhd v. Majlis Ugama Islam Dan Adat Resam Melayu Pahang and Other Appeals [2018] 1 MLRA 89, it is plain therefrom that the AA creates a self-contained regime and the courts should not import broader grounds of intervention decided pursuant to the previous repealed Arbitration Act 1952. It is worthy to note that Jeffery Tan FCJ held as follows with emphasis added by us: With respect, we could not agree with the statement in Exceljade that "under the previous s 24 of the repealed Arbitration Act 1952, the test for setting aside awards under the s. was whether an error of law on the face of the record arose". Error of law on the face of the award was the common law ground to set aside an award (see Halsburys Law of England 4th edn, vol 2 at paras 621 & 623). "Where an arbitrator or umpire has misconducted himself or the proceedings" was the statutory ground to set aside an award. Those two grounds, one under common law and the other under AA 1952, as different as chalk and cheese, could not be equated as the one and the same. But we share the view that with the radical change to the statutory regime, that s 24 of AA 1952 and the law developed thereunder are not relevant under s 42. It would only follow that all decisions made under s 42 but yet applied the law developed under s 24 of AA 1952 and the decisions that followed them were wrongly decided on law and should not be followed. [111] Section 8 provides that "No court shall intervene in matters governed by this Act, except where so provided in this Act". That was S/N ladLS2Gir0ilm2qkpsWXRw read to mean "minimal intervention consistent with the policy underlying the UNCITRAL Model Law" (Perwira Bintang) [32] Second in Master Mulia Sdn Bhd v. Sigur Ros Sdn Bhd [2020] 6 MLRA 61, it is clear that the courts retain discretion whether to set aside an arbitral award and the discretion must be exercised judicially and not arbitrarily. In this regard, Vernon Ong FCJ held as follows with emphasis added by us: [46] In our considered view, the opening words of subsection 37(1) which employs the terms 'may be set aside' are plain and unambiguous. Subsection 37(1) clearly provides that the High Court retains a residual discretion not to set aside an award even though a ground for setting aside may be made out. What is important is to ascertain the principles applicable to the exercise of such discretion in cases where an application is grounded on breach of the rules of natural justice. [53] In the light of the above, we think that the guiding principles on the exercise of residual discretion when an application for setting aside an award is grounded on breach of natural justice may be stated as follows: First, the court must consider: (a) which rule of natural justice was breached; (b) how it was breached; and (c) in what way the breach was connected to the making of the award; Second, the court must consider the seriousness of the breach in the sense of whether the breach was material to the outcome of the arbitral proceeding; Third, if the breach is relatively immaterial or was not likely to have affected the outcome, discretion will be refused; Fourth, even if the court finds that there is a serious breach, if the fact of the breach would not have any real impact on the result and that the arbitral tribunal would not have reached a different conclusion the court may refuse to set aside the award; Fifth, where the breach is significant and might have affected the outcome, the award may be set aside; S/N ladLS2Gir0ilm2qkpsWXRw Sixth, in some instances, the significance of the breach may be so great that the setting aside of the award is practically automatic, regardless of the effect on the outcome of the award; Seventh, the discretion given the court was intended to confer a wide discretion dependent on the nature of the breach and its impact. Therefore, the materiality of the breach and the possible effect on the outcome are relevant factors for consideration by the court; and Eighth, whilst materiality and causative factors are necessary to be established, prejudice is not a pre-requisite or requirement to set aside an award for breach of the rules of natural justice. [54] Underlying these guiding principles are the policies and objectives of the New York Convention and the Model Law. As a matter of principle and policy, the courts will seek to support rather than frustrate or subvert the arbitration process. The role of courts in the arbitral regime in general is one of assistance supportive of the arbitral process and not one of interference with it. Bearing in mind the two prim of party autonomy and ensuring procedural fairness), the Courts do not review the merits of the arbitral tribunal's decision. [59] Although the court's discretion to set aside an award under s 37(1) is unfettered, it must nevertheless be exercised with regard to the policies and objectives underpinning the AA 2005. In particular, due cognisance must be taken of the purposes of encouraging arbitration as a method of dispute resolution and facilitating the [33] Third in Pancaran Prima Sdn Bhd v. Iswarabena Sdn Bhd & Another Appeal [2020] 6 MLRA 124, it has been made clear that even if the arbitrator has failed to afford an opportunity to the parties to comment on a matter in issue, this failure need not mandatorily result in actionable denial of natural justice to set aside the arbitral award. On this aspect, Abdul Rahman Sebli FCJ (later CJSS) held as follows with emphasis added by us: The question is how far can the arbitrator rely on or is entitled to draw on his own knowledge and expertise in the conduct of the arbitral proceedings. S/N ladLS2Gir0ilm2qkpsWXRw There is a dearth of local authority on this point. In Sigur Ros (supra), a case that essentially turned on s 37(1)(b)(ii) of the Act, ie an award that is in conflict with the public policy of Malaysia, the Court of Appeal made the following observations: "Although the arbitrator had power to draw from his own knowledge and expertise, - and this was provided for in s 21(3) of the AA - this power had to be read together with the arbitrators overarching duty to act fairly and in accordance with the rules of natural justice as set out in s 20 of the AA. The arbitrators duty to act fairly and to always afford parties reasonable opportunity to present their case or arguments on any live issue to protect the sanctity and finality of the award and for sound business and commercial practice." [99] In the context of the present case, we do not think that the drawing by the arbitrator on his own knowledge and expertise of the 10-15% no risk profit margin for P&A as being "almost a norm" in the Malaysian construction industry was something that was not reasonably foreseeable or was a significant surprise to the respondent, so much so that the failure by the learned arbitrator to give it the opportunity to submit on the issue had resulted in a serious breach of the rules of natural justice. While it is true that the arbitrator was not expected to know everything about the norms in the Malaysian construction industry, neither is he expected to know nothing at all. [138] It is relevant to note that this court in Jan De Nul acknowledged and did not disturb the low threshold test laid down in Petronas Penapisan. Therefore the answer to Leave Question 1 should be obvious. We wish to add however that whether the threshold is "very low" or "very high", a wide discretion is vested in the court by s 37 of the Act and the decision to set aside an award is not an automatic outcome of a finding that there had been a breach of the rules of natural justice. The court will still have to evaluate whether the discretion should be exercised in the applicants favour in all the circumstances of the case. [139] Like any other exercise of discretion, the discretion to set aside an award for breach of the rules of natural justice must be exercised judiciously and only when it is just to do so. The authorities are clear that in considering whether the discretion should be exercised, the court must undertake an evaluation of relevant factors such as those identified in Kyburn, amongst which would be the seriousness, magnitude or materiality of the breach, S/N ladLS2Gir0ilm2qkpsWXRw its nature and its impact, whether the breach would have any effect on the outcome of the arbitration and leaving room for casual breach or occasional error. Costs of rehearing and delay in raising the complaint are further relevant factors to be taken into account in the evaluation process. [140] Kyburn explained the position in the following terms: "... a finding of a breach of the rules of natural justice does not mean that the arbitral award must be set aside, that the power of the court to set aside an award is discretionary and will not be exercised automatically in every case. The discretion enables the court to evaluate the nature and impact of the particular breach in deciding whether the award should be set aside, the policy of encouraging arbitral finality will dissuade the court from exercising discretion when the breach is relatively immaterial or was not likely to have affected the outcome." [141] The "very low" threshold for s 37 as decided in Petronas Penapisan and Sigur Ros must be understood in the context it was made, ie that compared to s 42, the threshold under s 37 is "very low". In other words, it is "very low" relative to the threshold under s 42. It must be remembered that the grounds enumerated in s 37 are exhaustive and as such the court cannot set aside an award for reasons other than those that are listed. [142] The grounds enumerated in s 37 need to be construed narrowly as they represent exceptions to the finality of arbitration awards (s 36). This is to avoid devaluing the arbitration agreement that arbitral awards are final and binding and also to preserve the autonomy of the forum selected by the parties by minimising judicial interference in arbitral awards: Jan De Nul (supra). [143] This narrow and restrictive definition is important in terms of the public policy ground which this court in Jan De Nul interpreted as only encompassing violations of the "most basic notions of morality and justice or such violations that offend the fundamental principle of law and justice, some element of illegality, where enforcement of the award involves clear injury to public good or the integrity of the Courts process and powers will thereby be abused". What is required is that the injustice had real effect and had prejudiced the basic [34] The Appellant sought to set aside the Award based on s.

(1)(a)(iii), (iv), (v), (vi), s. 37(1)(b)(ii), s. 37(2)(b)(ii) and S.37(3) AA. S/N ladLS2Gir0ilm2qkpsWXRw FIRST ISSUE [35] The First Issue concerns the alleged non-compliance with Rule 12(2) of Part I of the AIAC Rules, which likewise forms the subject matter-appeal. [36] In addressing this issue relating to the alleged non-compliance with Rule 12(2) of Part I of the AIAC Rules, it is apposite that we first reproduce the relevant provision of Rule 12 as follows:

Technical Review and Awards

Following the final oral or written submissions, the arbitral tribunal shall declare the proceedings closed. on which the proceedings are closed shall be communicated in writing to the Parties and to the Director. After this date, the Parties may not submit any further evidence or make any further submission with respect to the matters to be decided in the award.

The arbitral tribunal shall, before signing the award, submit its draft of the final award (the Draft Final Award), to the Director within three months for a technical review. The time limit shall start to run from the date when the arbitral tribunal declares the proceedings closed pursuant to Rule 12(1).

The time limit may be extended by the arbitral tribunal with the consent of the Parties and upon consultation with the Director. The Director may further extend the time limit in the absence of consent between the Parties if deemed necessary. [37] Additionally, we reproduce Article 32 of Part II AIAC Rules:

Waiver of Right to Object A failure by any Party to object promptly to any non-compliance with these Rules or with any requirement of the arbitration agreement shall be deemed to be a waiver of the right of such Party to make such an objection, unless such party can show that, under the circumstances, its failure to object was justified. S/N ladLS2Gir0ilm2qkpsWXRw [38] It is not in dispute that the Arbitrator, by letter to the parties dated 28th February 2023 declared that the arbitral proceedings are closed as of 19th January 2023. [39] The Appellant thus contended that the last date the Arbitrator ought to have submitted the draft Award to the Director of the AIAC on 18th April However, the Arbitrator only submitted the same on 19th April 2023. [40] According to the Respondent, the Arbitrator submitted the draft Award timeously within three months from 28th February 2023 which is date the Arbitrator actually declared the close of the arbitral proceeding Alternatively, if three months are computed from the declared date of 19th January 2023, the Arbitrator nonetheless still complied with Rule 12(1) AIAC Rules because the last day itself is on 19th April 2023. [41] Upon our review and contrary to the findings of the learned Judge on this issue, we find that the critical date of the commencement of the three months period is 28th February 2023, based on the literal interpretation of Rule 12(1) AIAC Rules from the phrase date declared by the as adopted by the learned Judge. [42] In any event, even assuming that there had been non-compliance with Rule 12(2) of the AIAC Rules, we are nevertheless of the considered properly to be construed as directory rather than mandatory. This is because the provision is essentially administrative and procedural in nature, particularly when read S/N ladLS2Gir0ilm2qkpsWXRw together with Article 32 of Part II of the AIAC Rules, which expressly contemplates waiver in the event of non-compliance. [43] In this regard, we observed that in the old English case of Julius v. Lord Bishop of Oxford [1874-80] All ER Rep 43, the House of Lords provision does not invariably render the provision mandatory. The court emphasised that the true construction of such provision depends on the intention of the legislature, having regard to the subject matter, purpose and consequences arising from the interpretation adopted. [44] The same principle was subsequently adopted by the Federal Court in Bursa Malaysia Securities Sdn Bhd v. Mohd Afrizan Hussain [2022] 4 CLJ 657 (FC), where Nallini Pathmanathan FCJ held as follows, with emphasis added by us: [58] This issue only arises by reason of the word "shall" utilised in r.

16.11(2). In this context, it should be noted that the word used is "shall" as opposed to "has a duty to" or "must". Black's Law Dictionary lists the following five meanings of "shall":

has a duty to; (this is the mandatory sense that drafters typically intend that that courts typically uphold).

(ii) should;

(iii) may;

(iv) will; and

is entitled to. [59] Therefore, "shall" does not have a single firm or settled meaning. It takes its meaning from the context in which it is used. The Court of Appeal, in immediately construing the word "shall" as imposing a mandatory, statutorily imposed obligation, without undertaking any form of interpretation of the AMLR in the context of the primary legislation, S/N ladLS2Gir0ilm2qkpsWXRw erred in law. The Court of Appeal ought to have undertaken the task of comprehending what is meant by "shall" in r. 16.11(2)(b) of the AMLR in the context of a holistic reading of the AMLR as well as the CMSA. [60] While it is true that the use of "shall" is often mandatory and "may" is permissive, that is not the beginning and end of statutory construction. That is a limited approach which is incorrect if confined solely to that consideration and conclusion. Instead, it is imperative that the court construes the word "shall" in the context of the entirety of r. 16.11(2), the AMLR and finally the CMSA. In short, "shall" is to be construed in the broader statutory context set out above. [61] What is the "broader" statutory context? The broader statutory context requires a consideration of whether the stated rule, when considered in the context of both the AMLR and the CMSA, makes provision for a mandatory or permissive directive. Put another way, the broader issue turns on whether the statutory directive itself is mandatory or permissive. [62] In this context, it is clear from r. 2 of the AMLR that the entirety of the rules is permissive in relation to Bursa. As stated earlier, the AMLR was promulgated to ensure compliance at the behest of Bursa in the exercise of its regulatory function. The primary duty of Bursa is encapsulated in s. 11 of the CMSA. As such there can be no adequate or proper statutory interpretation of r. 16.11(2) without having regard to the primary function of Bursa as a regulatory authority whose primary duty is to ensure public investor protection. In other words, these rules, including r. 16.11(2) AMLR, are made to ensure compliance can be effected in the public interest of providing investor protection. So, to now construe the word "shall" in r. 16.11(2) without having any regard to the wider provisions of the rules holistically and in the context of the CMSA is a fundamental error. [63] As both the High Court and the Court of Appeal failed to undertake this exercise adequately or at all, we are bound to reconsider the issue afresh. In order to answer the question of how the word "shall" in r. 16.11(2) of the AMLR is to be construed, it is necessary to construe the rule in the context of the CMSA and its primary duties. It is the duty of the court to construe the particular provision to ascertain the intention of the legislature by analysing the true meaning of the rule in the context of a holistic reading of the AMLR as well as the CMSA, as stated earlier. [64] As stipulated in Crawford on the Construction of Statute s: "The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern and S/N ladLS2Gir0ilm2qkpsWXRw these are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it the one way or the other...". [65] In Hee Nyuk Fook v. PP [1988] CLJU 15; [1988] 1 LNS 15; [1988] 2 MLJ 360 Syed Agil Barakbah SCJ held that: "... No hard and fast rule can be laid down because it depends on the facts and circumstances of a particular case, the purpose and object for which such provision is made, the intention of the Legislature in making the provision and the serious inconvenience or injustice which may result in treating the provision one way or the other." [66] And in Benjamin William Hawkes v. PP [2020] 8 CLJ 267; [2020] 5 MLJ 417 (FC) it was said at para. 46 in relation to the use of the word "shall": ... Applying the principles as enunciated in the aforesaid cases, whether the word "shall" in a particular legislation is mandatory or directory depends upon the intention of the Legislature in question which is ascertained by looking at the whole scope of the statute to be construed. The use of the word "shall" would not by itself make a provision of the Act mandatory. It is to be construed with reference to the scheme of the statute and the context in which it is used. In Cheong Seok Leng v. PP [1988] 2 MLJ 481 at 489 Chan Sek Keong JC (as he then was) explained the relevant rules of interpretation to be given to the word "shall" which appears in legislation as follows: ... [48] The purposive rule of interpretation must be adopted in interpreting s. 51A of the CPC, pursuant to s 17A of the Interpretation Acts 1948 and 1967 which read as follows: 17A Regard to be had to the purpose of the Act In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. [49] It is clearly untenable in this case to allude to the word 'shall' as mandatory, thus stultifying the justice of the case, when a document was not delivered to the accused persons before the commencement of the trial. S/N ladLS2Gir0ilm2qkpsWXRw [67] In the Supreme Court of India's decision in State of Haryana v. Anrv Raghubir Dayal (1995) 1 SCC 133 it was held at para. 5:

The use of the word "shall" is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment or consequences to f low from such construction would not so demand. Normally, the word "shall" prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word "shall" therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be described to the word shall; as mandatory or as directory accordingly. Equally it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or the general public, without very much furthering of the object of the Act, the same would be construed as directory. [68] Distilling from the general position in law further, the question for consideration is whether Bursa is mandatorily bound to de-list the company by reason of r. 16.11(2) of the AMLR notwithstanding the express provisions of s. 11 of the CMSA which require that Bursa acts:

firstly, in the interests of the public for the protection of investors; and

(ii) secondly, that where the public interest for the protection of investors conflicts with the law relating to corporations, the former prevails. [69] Put another way, in a situation where it may not be in the public interest for the protection of investors for a wound up listed company to be de-listed, is it tenable to construe r. 16.11(2) as prescribing a mandatory statutory directive that prevails over:

the rest of the AMLR read holistically;

(ii) section 11 of the CMSA; and

(iii) the purpose and object of the CMSA taken as a whole. S/N ladLS2Gir0ilm2qkpsWXRw [70] The answer must be no. [71] The use of the word "shall" does not always mean that it is being used mandatorily, as expressly elucidated in the case - law above. There are numerous instances where the word "shall" is used in a way that does not denote a mandatory legal obligation. (As Bryan Garner, the legal writing scholar and editor of Black's Law Dictionary noted - "In most legal instruments, shall violates the presumption of consistency... which is why shall is among the most heavily litigated words in the English language.") [72] In point of fact, "shall" has come to be the most misused word in the legal language. [45] Applying the aforesaid principles to the present appeal, we are of the considered view that Rule 12(2) of the AIAC Rules was intended to regulate the administrative timeline within which the arbitral tribunal is to submit the draft Award for technical review. The provision does not expressly stipulate that any award delivered outside the prescribed period would automatically be rendered null, void or unenforceable. Neither does the Rule prescribe any sanction for non-compliance. [46] Furthermore, Article 32 of Part II of the AIAC Rules expressly proceeds with the arbitration without promptly raising any objection to non-compliance with the Rules. This clearly demonstrates that the procedural timelines under the AIAC Rules are not intended to operate with rigid mandatory effect so as to invalidate the arbitral process in the absence of timely objection. [47] In the present case, there is no evidence that the Respondent had raised any contemporaneous objection before the Arbitrator regarding the alleged expiration of the three-month period prior to the publication of the Award. On the contrary, the Respondent continued to participate in the S/N ladLS2Gir0ilm2qkpsWXRw arbitral proceedings without protest. In these circumstances, any right to object was deemed waived pursuant to Article 32 of Part II AIAC Rules. [48] More importantly, the Respondent has not demonstrated any real prejudice occasioned by the delivery of the Award outside the alleged prescribed timeline. It is well established that procedural irregularities which do not occasion substantial injustice or prejudice ought not to defeat the substantive determination of disputes, particularly in arbitration where party autonomy and finality are fundamental considerations. [49] Accordingly, we find no merit in the contention that the Final Award ought to be set aside merely on the ground that it was rendered outside the period stipulated under Rule 12(1) of the AIAC Rules. [50] Moreover, we find there is no prejudice has been occasioned by that one-day lateness as also acknowledged by the learned Judge. [51] As a result, , we find that as also found by the learned Judge albeit on a different premise from us. [52] construction of Rule 12(1) of the AIAC Rules is allowed. SECOND ISSUE [53] This issue revolves around the manner the Arbitrator determined the validity of the CNC issued by the Architect under the Contract via the th June 2015. The Arbitrator embarked on S/N ladLS2Gir0ilm2qkpsWXRw deciding a new difference that has not been raised by the parties in the arbitration proceedings according to the Appellant. This is because the during the arbitration proceeding is only on the failure by the Architect to fairly and properly assess the EOT entitlement. [54] It is apt to refer to the following findings of the Arbitrator in the Award:

The Respondent on the other hand first raises the objection that this contention of the Claimant is not a pleaded position of the Claimant and that on this basis alone, the Tribunal ought not to entertain this challenge by the Claimant at the closing stage of the proceedings. pleaded as being without merit. On the contrary, the Claimant has adequately pleaded the facts pertaining to the 19.6.2015 letter by the Architect. And the fact that the Architect failed to consider and assess EOT no. 3 and instead proceeded to issue CNC on 7.7.2015. This is found at paragraphs 159 and 160 of the SOC. In its final relief, the Claimant seeks a declaration that the CNC is invalid (Paragraph 210(ii), a declaration that the Respondent is not entitled to pursue any claims and/or set off the Claimant for liquidated damages (paragraph 210(iii)), and seeks an order that the sum of Rm11,452,910.00 which was wrongly deducted by the Respondent as liquidated damages to be refunded and paid to the Claimant (paragraph 210(iv)). inadequate, but invoking clause 23.3 of the PAM Contract, having also formed the opinion that the particulars submitted by the Claimant was insufficient and providing the Claimant with 28 days to provide such further particulars, it cannot be said that the Architect could form the view that the Claimant has failed to complete the Works by the Completion Date or form an opinion that such Works ought to be completed by the Completion Date.

By granting the Claimant time to revert with further particulars, it must be the case that the Architect was still considering EOT no. 3 at the time when the CNC was issued. The Architect could not have issued the CNC without allowing the Claimant the full 28 days, expiring on 17.7 2015, to revert on the information or particulars as requested by the Architect. S/N ladLS2Gir0ilm2qkpsWXRw

Further and on the evidence adduced, the Tribunal cannot come to a conclusion that the Architect had addressed her mind and formed an opinion that the Claimant ought to have reasonably completed the Works by the Completion Date or that the Claimant failed to complete the Works. The negates such contention, if any.

As such, the Tribunal finds that the CNC was wrongfully issued by the Architect. Given that the issuance of the CNC is a condition precedent to the imposition of liquidated damage, the imposition and deduction of liquidated damages by the Respondent is wrongful. [55] that the Appellant was unaware th June 2015 is ereby prevented from presenting its case in rebuttal to the manner as decided by the Arbitrator. Consequently, the Arbitrator found and decided on a new difference which was natural justice accorded to the Appellant. [56] In this regard, it is instructive to refer to the Singapore Court of Appeal case of CJA v. CIZ [2022] 2 SLR 557 where Judith Prakash JCA held as follows with emphasis added by us: Whether the Tribunal acted in excess of jurisdiction [37] The principles governing a challenge on the basis of Art 34(2)(a)(iii) of the Model Law for an excess of jurisdiction were recently restated in Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another [2021] 2 SLR 1279 Bloomberry Article 34(2)(a)(iii) of the Model Law reflects the fundamental principle that an arbitral tribunal has no jurisdiction to decide any issue not referred to it for determination by the parties (Bloomberry at [68]). However, a practical view has to be taken regarding the substance of the dispute which has been referred to arbitration (Bloomberry at [68]). It is also well established that mere errors of law or even fact are not sufficient to warrant setting aside an arbitral S/N ladLS2Gir0ilm2qkpsWXRw award under Art 34(2)(a)(iii) of the Model Law, as a distinction has to be drawn between the erroneous exercise by an arbitral tribunal of an available power vested in it and the purported exercise by the arbitral tribunal of a power which it did not possess (Bloomberry at [69]). [38] A two-stage inquiry is followed in assessing whether an arbitral award should be set aside for an excess of jurisdiction: (a) first, the court must identify what matters were within the scope of submission to the arbitral tribunal; and (b) second, whether the arbitral award involved such new difference the submission to arbitration and accordingly would have been irrelevant to the issues requiring determination [emphasis in original] (CDM at [17]; PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 at [40]). Further, in CDM, this court held (at [18]) that the question of what would be answerable by reference to five the list(s) of issues, opening statements, evidence adduced, and closing submissions at the arbitration. This was an elaboration of the principle that in considering whether the jurisdiction has been exceeded, the court must look at matters in the round to determine whether the issues in question were live issues in the arbitration. In doing so, it does not apply an unduly narrow view of what the issues were: rather, it is to have regard to the totality of what was presented to the tribunal whether by way of evidence, submissions, pleadings or otherwise and consider whether, in the light of all that, these points were live. [75] It is similarly the case in England that as regards s 33(1) of the Arbitration Act 1996 (c 23) (UK), which imposes obligations on the tribunal to, inter alia, provide the parties a reasonable opportunity to deal with any issue that have to refer back to the parties its analysis or findings based on the evidence or argument before it, so long as the parties have had an (Grindrod Shipping Pte Ltd v Hyundai Merchant Marine Co Ltd [2018] EWHC 1284 Grindrod Sutton, Judith Gill & Matthew Gearing, Russell on Arbitration (Sweet & Maxwell, 24th Ed, 2015) at para 5-050). The tribunal is therefore entitled to issues which led the tribunal to those conclusions. Furthermore, there is a difference between, on the one hand, a party having no opportunity to address S/N ladLS2Gir0ilm2qkpsWXRw opportunity which exists; the latter does not involve a breach of s 33 (Grindrod at [40] and [68]). [76] The nature of the issue is also relevant in determining the extent of opportunity that a party ought to be granted to address the determinative issues, as this court recently held in Phoenixfin Pte Ltd and others v Convexity Ltd [2022] 2 SLR 23 Phoenixfin breach of natural justice where the tribunal had found that certain contractual clauses were unenforceable penalty clauses. The tribunal had denied an application by the respondent in the arbitration to amend its Defence and Counterclaim to plead that these clauses were unenforceable on that basis. Despite such rejection, the tribunal appeared to take the view that the issue was still within the scope of the arbitration. The tribunal then went on to dismiss the claim on that basis. We agreed with the High Court that the claimant in the arbitration thus did not have a full opportunity to address this issue of an unenforceable penalty: among other things, the underlying facts supporting the assertions in this regard were not pleaded. This was although the issue of whether a particular provision is or is not a proscribed penalty is a question of mixed law and fact. We observed (at [52]): natural justice during arbitration proceedings, the pivotal question is always whether that party has been given a fair opportunity to deal with an issue that has been raised in the arbitration either by the other party or by the tribunal itself. The extent of the opportunity needed to be given depends on the nature of the issue. If the issue is a legal one, then sufficient time to make legal submissions is all that is required. But if the issue is a factual one or a mixed fact and law question then, apart from submitting on the law, a party needs to be able to question the evidence produced in support of the issue as well as have the chance to itself introduce relevant rebuttal evidence. And in order to do all this, there has to be clarity and precision regarding what issue is being raised and what evidence will be relied on to support it. [57] Furthermore, in another Singapore Court of Appeal case of CDM & Another v. CDP [2021] 2 SLR 235, Steven Chong JCA held as follows with emphasis added by us: [16] At the outset, it is essential to bear in mind that while the appellants relied on: (a) an excess of jurisdiction; and/or (b) a breach of natural justice to justify setting aside the impugned segments of the Award, the factual matrix for both grounds was in fact identical. Put another way, the S/N ladLS2Gir0ilm2qkpsWXRw breach of natural justice alleged by the appellants required the Tribunal to have exceeded its jurisdiction, because the appellants accept that if they had the opportunity to engage the issues which had in fact been placed before the Tribunal, it would follow that the Tribunal could not have acted in breach of natural justice. Thus, as was conceded by the Tribunal had acted in excess of its jurisdiction would necessarily be fatal to their breach of natural justice argument. Did the Tribunal act in excess of its jurisdiction? [18] The submission to arbitration was answerable by reference to five sources: closing submissions at the Arbitration. Having reference to those sources, it was clear beyond peradventure that the issue as to whether the parties had approved the second launch such that the Fourth Instalment became payable was squarely before the Tribunal. There was thus no basis to contend that the Tribunal had exceeded its jurisdiction in making that finding. We considered the five sources in turn. [58] Likewise, in Hartela Contractors Ltd v. Hartecon JV Sdn Bhd & Anor [1999] 2 CLJ 788 (CA), Gopal Sri Ram JCA (later FCJ) held as follows with emphasis added by us: In my view, the rule that requires arbitrators to decide only the issues raised by the pleadings is consonant with the requirements of natural justice and with the general principles of equity and good conscience. (See Sharikat Pemborong Pertanian & Perumahan v. Federal Land Development Authority (ibid)). And I consider it to be a principle of universal application to all forms of dispute resolution, that an arbiter, whether private or public, is entitled, if not obliged, to consider and deal with a point that is pursued evidentially and in argument by parties to a controversy. The decision of the Federal Court in Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank Bhd [1995] 1 MLRA 738; [1995] 3 MLJ 331; [1995] 4 CLJ 283; [1995] 3 AMR 2871 exemplifies the application of this general principle to pleadings in ordinary litigation. It was there said (at p 342), in relation to a plea of estoppel, that ... where there is no pleaded case of estoppel, but there is let in, without any objection, a body of evidence to support the plea, and argument is directed upon the point, it is the bounden duty of a court to consider the S/N ladLS2Gir0ilm2qkpsWXRw evidence and the submissions and come to a decision on the issue. It is no answer, in such circumstances, to say that the point was not pleaded: Oversea-Chinese Banking Corp Ltd v. Philip Wee Kee Puan [1984] 1 MLRA 161 [59] We have accordingly reviewed paragraphs (159) and (160) of the statement of claim, paragraphs 128, 129.3 and 131 of the statement of defence, paragraphs 22, 54 and 55 of the statement of reply and paragraph 15 of the rejoinder in the arbitration proceeding (collectively . Furthermore, we have also perused the associated oral and documentary evidence adduced at the hearing of the arbitration proceeding. th June 2015 is admitted in evidence and the parties must have been aware of the resultant legal implications. [60] written written closing submissions in the arbitration proceeding and the parties made exhaustive arguments based on the pleadings. We noted that there has also been an oral clarification afforded to both parties thereafter by the Arbitrator. [61] On the totality of the facts and circumstances which took place in the arbitration proceeding, we find that Appellant cannot credibly claim here that the alleged new difference is not part and parcel of the pleaded disputes referred within the mandate and jurisdiction of the Arbitrator. Moreover, the Appellant cannot also claim to have been deprived of natural justice to address this alleged new difference. It is our observation that the Appellant is not suggesting there are other facts or evidence that the Appellant was denied the opportunity to produce. The Appellant S/N ladLS2Gir0ilm2qkpsWXRw instead could have made further legal submissions to rebut the dispute over the issuance of certificate of non-completion. [62] Put simply, we are therefore satisfied that this is not a problem with the Appellant having been deprived of the opportunity to address the a problem of the Appellant having failed at the material time to recognise and/or use the opportunity to advance submissions must never be pursued piecemeal! In other words, the Appellant cannot now with the benefit of hindsight overcome its predicament in the guise that the Arbitrator embarked on a new difference which was not pleaded by the parties. [63] That notwithstanding, it also worth noting that Ahmad Fairuz Zainol Abidin JC (now JCA) held as follows in Allianz General Insurance Company v. Virginia Surety Company Labuan Branch [2020] MLJU 331 with emphasis added by us: [34] This Court is of the considered view that the failure of the Tribunal (by majority) to explain its disagreement on the applicability of the utmost good faith principle beyond the four (4) paragraphs in the Majority Award cannot be an immediate basis to suggest a breach of natural justice. A tribunal is not obliged to slavishly adopt the position of parties but instead it is allowed to pick and choose the arguments it deems necessary for its consideration. In Trustees of Rotorua Trust v AG [1999] 2 NZLR 452, the court outline the position as an arbitrator is not bound to slavishly adopt the position advocated by one party or the other. It will usually be no cause for surprise that arbitrators make their own assessments of evidentiary weight or credibility, pick and choose between different aspects of an evidence reshuffle the way in which different concepts have been combined, make their own value judgments between the extremes presented, and exercise reasonable latitude in drawing their own conclusions from the material presented. S/N ladLS2Gir0ilm2qkpsWXRw [64] Be that as it may, we also find that even if the Arbitrator has unwittingly not invited the parties specifically to submit on the legal th usage of his own legal expertise to make the finding is not a denial of natural justice just as that similarly done by the arbitrator in Pancaran Prima Sdn Bhd v. Iswarabena Sdn Bhd & Another Appeal (supra). [65] Consequently, on our review, we concur with the findings of the learned Judge on this issue that the Arbitrator could not be faulted on this alleged new difference. THIRD ISSUE [66] Under the third issue, the Appellant essentially contends that the above, is untenable on the grounds that it is illogical, inconsistent and/or defective. [67] In our considered view, this constitutes an attempt by the Appellant to mount an appeal against the merits of the Award under the guise of a setting aside application, which is impermissible under the regime of the AA. An application to set aside an arbitration award is not synonymous with an appeal on the merits of the award. [68] In Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd (supra), Vernon Ong FCJ held as follows with emphasis added by us: [54] Underlying these guiding principles is the policies and objectives of the New York Convention and the Model Law. As a matter of principle and policy, S/N ladLS2Gir0ilm2qkpsWXRw the courts will seek to support rather than frustrate or subvert the arbitration process. The role of courts in the arbitral regime in general is one of assistance supportive of the arbitral process and not one of interference with it. Bearing in mind the two primary objectives of the Model Law (respect for and preservation of party autonomy and ensuring procedural fair decision. [69] Similarly, in Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd and another appeal (supra), Abdul Rahman Sebli FCJ (later CJSS) held as follows with emphasis added by us: [10] The principle is trite that courts do not exercise appellate jurisdiction over arbitration awards: see Pembinaan LCL Sdn Bhd v SK Styrofoam (M) Sdn Bhd [2007] 4 MLJ 113. The only provisions in the Act that provide for the setting aside of domestic awards are s 37(1) and s 42(1)

of the Act (before its deletion). [70] Also, in the Court of Appeal case of Huawei Technologies (Malaysia) Sdn Bhd v. Maxbury Communications Sdn Bhd & Another Appeal [2019] 6 CLJ 588, Nallini Pathmanathan JCA (later FCJ) held as follow with emphasis added by us: [36] In the instant case, the complaint is that the arbitrator failed to determine an issue put before him in the reference through the pleadings, namely that there was a breach of cl. 4 of the settlement agreement. We have already pointed out that this is completely at odds with, or is directly contrary to any complaint that the arbitrator has in fact gone outside the purview of the scope of arbitration. [37] Secondly, it appears to us that the question is one that relates directly to the merits of the claim. The question here is whether the civil court in exercising its jurisdiction under s. 37(1)(a)(iv) is required to undertake any form of review on the substantive merits of the case. [38] In the textbook by Datuk Professor Sundra Rajoo (special contributor Dr Thomas R Klotzel) entitled 'UNCITRAL Model Law & Arbitration Rules - The Arbitration Act 2005 (Amended 2011 & 2018) and the AIAC Arbitration S/N ladLS2Gir0ilm2qkpsWXRw Rules 2018 '[1], the learned author set out the relevant principles in deciding a case under s. 37(1)(a)(iv) as follows (pp. 545 - 551):

37.83 The court will have to ascertain what matters were within the scope of submission to arbitration when exercising its discretion under this section. The court will be guided by the arbitration agreement and other relevant contractual provisions, the notice of request for arbitration, and the pleadings exchanged between the parties. ...

37.85 The Canadian Supreme Court in Desputeaux v. Editions Chouette [1987] Inc[58] stated that the mandate of an arbitral tribunal should not be interpreted restrictively limiting it to what is expressly set out in the arbitration agreement but should also cover "everything that is closely connected with that agreement". ...

37.96 The House of Lords in Lesotho Highlands Development Authority v. Impregilo SpA[65] had to interpret section 68(2) of the English Arbitration Act 1996, that is whether the arbitral tribunal had exceeded its powers in expressing the award in a currency other than that stipulated in the contract and in the matter of award of interest.

37.97 The court made a distinction between:

an erroneous exercise of the powers available to an arbitral tribunal within its substantive jurisdiction leading to an error of law, which could be appealed under the equivalent of the former section 42 (if applicable) and not under the equivalent of section 37 of the AA 2005; and

cases where the arbitral tribunal had exceeded its substantive powers under the arbitration agreement, terms of reference or the relevant statute, which would be a matter coming under the equivalent of section 37 of the AA 2005. (emphasis added).

37.98 The House of Lords held that the alleged errors, in that case, came under the first category. It reasoned that the ethics of the English Arbitration Act 1996 was an entirely new approach as regards the need for judicial restraint. ... S/N ladLS2Gir0ilm2qkpsWXRw

37.109 Applications for setting aside purportedly founded on erroneous interpretations of law and fact do not fall within the purview of section 37(1)(a)(iv) and (v)of the AA 2005. The Singapore Court of Appeal in PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA[75] held that an arbitral tribunal, which erroneously declines jurisdiction, does not exceed its mandate in the meaning of Article 34(2)(a)(iii) of the UNCITRAL Model Law. The mere fact that the decision is wrong does not justify its setting aside under Article 34(2)(a)(iii). ...

37.111 However erroneous the reasons in the judgment may be, the courts have no jurisdiction to subsequently substitute its own interpretation of the law and facts.[77] The Bombay High Court in India in Laxmi Mathur v. Chief General Manager MTNL[78] held that it was trite that the parties constituting the arbitral tribunal bind themselves to accept the award as final and conclusive. Thus, the award cannot be set aside on the grounds that it is erroneous, the scope of which is beyond the setting-aside provisions of the AA 2005. ... [39] It is therefore apparent that the fact that the arbitrator is accused of having failed to consider a material issue comprising an integral part of the dispute referred to arbitration does not form the basis for the contention that the arbitrator has exceeded the scope of the dispute referred to him for arbitration. Conceptually that is not an available avenue for an applicant under s. 37(1)(iv)(a) of the AA 2005. [40] In any event, from the content of the award referred to earlier, it is apparent that the learned arbitrator did indeed consider this issue in the context in which the dispute was put and pleaded before him. The claim, he found, was premised on cl. 4 of the settlement agreement which provided no cause of action for the monies claimed by Maxbury. It is clear from the foregoing that the arbitrator complied with the terms of reference of the arbitration given to him. He answered the issue and gave his reasons for it. There was no question of the award dealing with a dispute that was not contemplated by or not falling within the terms of the submission to arbitration. To that extent, the decision-making process of the arbitrator, which is the true subject of consideration under s. 37(1)(a)(iv), cannot be faulted. [41] Shorn of its trimmings, Maxbury's claim was really an attempt to have the court review its claim on the substantive merits relating to the existence or otherwise of a collateral agreement. That is not a basis for S/N ladLS2Gir0ilm2qkpsWXRw seeking to set aside an award under s. 37(1)(a)(iv). Any error or perceived error in the adjudication of the dispute in the award cannot and ought not to be relied upon by the losing party to set aside the award. [42] It is a fallacy to label the failure to accept the existence of a collateral agreement, or even an incorrect application of the law by the arbitrator, as amounting to a transgression of the arbitrator, such that it can be said that the award handed down deals with a dispute not contemplated by or not falling within the terms of submission to arbitration. Errors, such as those sought to be put forward by the applicants, even if they had merit, have no nexus with s. 37(1)(a)(iv) which deals with the issue of jurisdiction and not errors of law. If at all they are errors of fact and/or law, they are errors committed within the scope of his jurisdiction or mandate. Indeed, to hold otherwise would result in every award being subject to review, and in effect, appeal by the courts. That is precisely what the AA 2005 seeks to preclude. [43] In summary therefore, the alleged failure to address an issue referred to him, fails in two aspects. Firstly, the learned arbitrator did in fact consider the issue, and for the reasons stated in his award, found that it fell outside the purview of the scope of reference to him. Therefore, it cannot be said that he did not consider the issue. Secondly, this application to set aside premised on s. 37(1)(a)(iv) cannot and ought not be utilised to review an award on its merits. Based on the authorities of cases from the apex court referred above, it is trite law that an application to set aside an arbitration award does not constitute an appeal, and an appellant is therefore not permitted to re-litigate the merits of the Award. See also: Pembinaan LCL Sdn. Bhd. v. SK Styrofoam (M) Sdn Bhd [2007] 3 CLJ 185. [71] Furthermore, the grounds for setting aside an arbitration award are limited, as stated by the Federal Court in Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 2 MLJ 413, where Ramly Ali FCJ held as follows, with emphasis added by us: deciding whether the award should be set aside under s 37. The court must also consider the background policy of encouraging arbitral finality and S/N ladLS2Gir0ilm2qkpsWXRw 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 [2012] 3 MLRA 383; [2013] 2 CLJ 395; Taman Bandar Baru Masai Sdn Bhd v. Dindings Corporations Sdn Bhd [2009] 4 MLRH 171; [2010] 5 CLJ 83; and Lesotho Highland Development Authority v. Impregilo SpA & 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 disp [72] In the premises, we concur with the learned Judge that the Appellant has strayed into the merits of the findings of the Arbitrator which cannot be entertained in the setting aside application. CONCLUSION [73] For the foregoing reasons, we find that there is no appealable on the part of the learned Judge in the exercise of discretion to refuse setting aside the Award based on the applicable case laws, particularly the trilogy of the Federal Court cases cited above. Appeal 1212 is thus dismissed and the High Court decision in the Setting Aside Application is affirmed. APPEAL 1214 (ENFORCEMENT APPEAL) [74] we find the learned Judge held that the requirements of s. 38 of the AA have been complied. S/N ladLS2Gir0ilm2qkpsWXRw [75] This has not been challenged by the Appellant other than the Award cannot be enforced because it ought to be set aside as sought in Appeal 1212. CONCLUSION [76] In the circumstances and since Appeal 1212 has been dismissed, Appeal 1214 cannot accordingly be justified. We therefore also dismiss Appeal 1214 and affirm the High Court decision in the Enforcement Application. COSTS [77] In view of the complexity of the subject matter involved and affirmation of the Decisions, we hereby order costs of RM50,000.00 collectively for both Appeal 1212 and Appeal 1214 to be paid by the Appellant to the Respondent subject to allocator. Dated this 15th June 2026 Sgd. LIM CHONG FONG COURT OF APPEAL JUDGE S/N ladLS2Gir0ilm2qkpsWXRw LIST OF COUNSELS: Counsels for the Appellant Solicitors for the Appellant MESSRS. SARANJIT SINGH Advocates & Solicitors, Suite 51-3, Block D, Jaya One No. 72A, Jalan Profesor Diraja Ungku Aziz (Jalan Universiti) 46200 Petaling Jaya Selangor. Counsel for the Respondent Solicitors for Respondent MESSRS. HAROLD LAM & PARTNERSHIP Advocates & Solicitors, Suite 32-5, 32nd Floor Oval Tower Damansara No. 685, Jalan Damansara 60000 Kuala Lumpur. S/N ladLS2Gir0ilm2qkpsWXRw STATUTE / LEGISLATION REFERRED TO: s. 8, 37 & 38 of the Arbitration Act 2005; Rule 12 of Part I of the AIAC Rules; Article 32 of Part II AIAC Rules. CASES REFERRED TO: Far East Holdings Bhd v. Majlis Ugama Islam Dan Adat Resam Melayu Pahang and Other Appeals [2018] 1 MLRA 89; Master Mulia Sdn Bhd v. Sigur Ros Sdn Bhd [2020] 6 MLRA 61; Pancaran Prima Sdn Bhd v. Iswarabena Sdn Bhd & Another Appeal [2020] 6 MLRA 124; Julius v. Lord Bishop of Oxford [1874-80] All ER Rep 43; Bursa Malaysia Securities Sdn Bhd v. Mohd Afrizan Hussain [2022] 4 CLJ 657; CJA v. CIZ [2022] 2 SLR 557; CDM & Another v. CDP [2021] 2 SLR 235; Hartela Contractors Ltd v. Hartecon JV Sdn Bhd & Anor [1999] 2 CLJ 788; Allianz General Insurance Company v. Virginia Surety Company Labuan Branch [2020] MLJU 331; Huawei Technologies (Malaysia) Sdn Bhd V. Maxbury Communications Sdn Bhd & Another Appeal Court of Appeal, Putrajaya [2019] 6 CLJ 588; Pembinaan LCL Sdn. Bhd. v SK Styrofoam (M) Sdn Bhd [2007] 3 CLJ

Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 2 MLJ 413. S/N ladLS2Gir0ilm2qkpsWXRw