Jana Dcs Sdn Bhd v Tar Ph Sdn Bhd (WA-24NCC(ARB)-26-04/2022)

Six actions were filed in this court: a. 24NCC(ARB)-20-03/2022 (collectively, the “Setting Aside Applications”) filed by TAR PH Sdn Bhd (“TAR PH”), TAR Originating summons nos. WA-24NCC(ARB)-18- Marina Boulevard Sdn Bhd (“PH Marina”) (collectively, the “TAR Companies”), seeking orders to set aside the final arbitration awards dated 4 March 2022 (“Awards”) granted in favour of Jana DCS Sdn Bhd (“Jana DCS”); 04/2022, WA-24NCC(ARB)-27-04/2022 and WA- 24NCC(ARB)-28-042022 (collectively, the “Enforcement and b. Applications”) filed by Jana DCS to enforce the Awards.

I dismissed the Setting Aside Applications and allowed the Enforcement Applications. These are the full grounds of my decision.

On 17 October 2006, Jana DCS entered into an agreement with the State Government of Johor, pursuant to which Jana DCS is required to construct, operate and maintain a chilled water district cooling system plant, and supply chilled water at agreed rates to various buildings belonging to the State Government of Johor.

Subsequently, Jana DCS and the TAR Companies executed district cooling system agreements dated 30 May 2012 (“DCS Agreements”). Under the DCS Agreements, Jana DCS is required to supply chilled water to the TAR Companies for 30 years. The chilled water is used to air condition buildings developed by the TAR Companies, PH Family Entertainment Sdn Bhd (“TAR PHFE”) and PH Originating summons nos. WA-24NCC(ARB)-26- 11 including a hotel (for TAR PH), an indoor theme park (for TAR PHFE) and retail outlets (for PH Marina).

However, disagreements arose between the parties on the following issues: a. The temperature for the supply of the chilled water; and b. Jana DCS’ increase in the tariffs for the supply of the chilled water.

On 16 April 2019, the TAR Companies issued a notice to terminate the DCS Agreements (“Notice of Termination”).

This led to Jana DCS commencing arbitration against the TAR Companies, alleging that they had wrongfully terminated the DCS Agreements. Jana DCS claimed RM93,941,149.36, being compensation for the unexpired period of the DCS Agreements, as well as RM1,654,980.38, being the sum of unpaid invoices between December 2018 to April 2019.

Dato’ Anantham Kasinather was appointed as the sole arbitrator (“Arbitrator”) in the arbitration. In the Awards, he found in favour of Jana DCS and awarded damages to Jana DCS in the sum of RM86,239,703.11 and RM1,878,268.97, together with interest.

The TAR Companies’ case is that the findings by the Arbitrator cannot be justified, as the Awards deal with matters beyond the scope of the submission to arbitration, and is in breach of public policy.

As such, the TAR Companies filed the Setting Aside Applications, to set aside the Awards. Jana DCS in turn filed the Enforcement Applications, to enforce the Awards. C. The Setting Aside Applications

These applications are made under section 37 of the Arbitration Act 2005 (“AA”) and specifically, section 37(1)(a)(iv) and (v) and section 37(1)(b)(ii) of the Arbitration Act 2005 (“AA”).

Section 37 provides as follows: “(1) An award may be set aside by the High Court only if –

the party making the application provides proof that – …

(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

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.” (emphasis added) [13] It is the TAR Companies’ case that the Arbitrator had erred in finding: agreed temperature for Jana DCS’ supply of chilled water the DCS Agreements amounted to a breach of the DCS terminate the DCS Agreements, and that the Notice of penalty clause, and that Jana DCS’ claim based on the a. (“Finding 1”); b. the inception of the DCS Agreements (“Finding 2”); c. (“Finding 3”); d. Agreements (“Finding 4”); e. Termination was invalid (“Finding 5”); f. terminate the DCS Agreements (“Finding 6”); and g. formula in the clause is not exorbitant (“Finding 7”). [14] Premised on the errors as claimed, the TAR Companies urged the court to exercise its powers under section 37 of the AA to set aside the Awards: That clause 13.5.1(b) of the DCS Agreements is not a That the TAR Companies had a collateral motive to That the TAR Companies did not have any ground to That the TAR Companies’ refusal to pay charges under That Jana DCS did not breach the DCS Agreements That Jana DCS had supplied chilled water at 44oF from That there were serious pre-contract negotiations on the Awards deal with a dispute not contemplated by or not falling within the terms of the submission to arbitration Awards contain decisions on matters beyond the scope high. An award can be challenged only in exceptional circumstances (see Garden Bay Sdn Bhd v Sime Darby examine an award and the arbitration process. As such, the court must not treat an application to set aside an arbitration award as an appeal, and the dissatisfied party should not be allowed to have a second bite of the cherry (see Soh Beng Tee & Co Pte Ltd v Fairmont a. (“Ground 1”); b. of the submission to arbitration (“Ground 2”); and c. Awards are in conflict with public policy (“Ground 3”). [15] I considered the allegations of erroneous findings by the Arbitrator and the grounds relied on by the TAR Companies, in light of the following principles on the court’s exercise of powers under section 37 of the AA: a. Property Bhd [2018] 6 CLJ 199). b. Development Pte Ltd [2007] 3 SLR 86). Second, it is not the function of the court to meticulously The first is that the threshold for section 37 to apply is very Under section 37(1)(b)(ii) of the AA, on the basis that the Under section 37(1)(a)(v) of the AA, on the basis that the Under section 37(1)(a)(iv) of the AA, on the basis that the c. Third, the arbitral regime requires finality. This is set out in section 36(1) of the AA, which provides that: “An award made by an arbitral tribunal pursuant to an arbitration agreement shall be final and binding on the parties …” In Asean Bintulu Fertilizer Sdn Bhd v Wekajaya Sdn Bhd & another appeal [2018] 2 CLJ 257, it was held that the provision of the finality of an arbitration award in section 36(1) of the AA places a high threshold on the court in the exercise of its discretion to set aside an award under section 37 of the AA. [16] I will now address the grounds relied on by the TAR Companies to set aside the Awards. Grounds 1 and 2: The Awards deal with a dispute not falling within the terms of the submission to arbitration and contains decisions on matters beyond the scope of the submission to arbitration [17] Grounds 1 and 2 are dealt with together. [18] To support these grounds, two arguments were raised by the TAR Companies: a. The findings are based on facts and issues that are not pleaded; and terms of the submission to arbitration and contains decisions on matters beyond the scope of the submission paragraph 29 that “In so far as the cooling load temperature and pressure are concerned, these are set out in Schedule 10 which provides that the cooling load completed the testing and commissioning process which was accepted by both parties, the Claimant commenced supply of the cooling load to the Designated Building, which the Respondent accepted and used in the course b. to arbitration. [19] The first argument, that the findings are based on facts and issues that are not pleaded, relates specifically to Finding 2, namely the Arbitrator’s finding that Jana DCS had supplied chilled water at 44oF from the inception of the DCS Agreements. The TAR Companies claimed that this issue was not raised in pleadings. [20] However, a perusal of the pleadings filed in the arbitration reveals that this issue had been set out in the following documents: a. supplied at the Point of Delivery was 44oF (+/- 1oF) …” b. paragraph 49 that “Having satisfactorily carried out and of its business”. In Jana DCS’ Statement of Claim, where it is stated in In Jana DCS’ Statement of Claim, where it is stated in The findings deal with disputes that do not fall within the Counterclaim, where it is stated in paragraph 18 that “… The Claimant is contractually bound pursuant Clause 4.2 of the DCS Agreement to supply the Cooling Load by meeting the supply temperature range cited in Schedule it is stated in paragraph 11(b) that “Schedule 10 provides terms of the temperature, Schedule 6 provides that it should be within the range of 44oF plus or minus 1oF. The Claimant further avers that the contractual temperature had all along been measured in Fahrenheit by agreement of the parties. This is evidenced in the testing and commissioning records, particularly the Checklist signed it is stated in paragraph 11(c) that “The Claimant had all along supplied the cooling load according to the key specifications as provided in the DCS Agreement. The Claimant reiterates that there was no record of any complaints through the many years that it continuously and faithfully supplied the cooling load to the Designated Building. The single exception was a sole complaint in 2014 which was investigated and dealt with conclusively (see page no. 216 to 234 of the Claimant's Bundle of c. 10 of the DCS Agreement. The Respondent states the contractual temperature is set out in Celsius …” d. for the pressure and temperature of the cooling load. In by both parties …” e. In Jana DCS’ Reply and Defence to Counterclaim, where In Jana DCS’ Reply and Defence to Counterclaim, where In the TAR Companies’ Further Amended Defence and Documents). It was only when the Claimant sought to enforce its rights to payment of the outstanding dues that the Respondent contrived to raise the false allegation that the cooling load did not meet with contractual specifications.” [21] The TAR Companies’ position is that the pleadings only set out the issue of the correct temperature for the supply of chilled water, and do not state that Jana DCS had supplied chilled water at 44oF. [22] I am unable to agree. The extracts of the pleadings as set out above, read as a whole, show that Jana DCS had pleaded not only that the correct temperature for the supply of chilled water is 44oF, but also that it had supplied chilled water at that temperature. [23] The second argument put forward by the TAR Companies to support Grounds 1 and 2 is that the findings deal with disputes that do not fall within the terms of the submission to arbitration and contain decisions on matters beyond the scope of the submission to arbitration. [24] This argument relates to the Arbitrator’s findings that Jana DCS did not breach the DCS Agreements (Finding 3) and that the TAR Companies did not have any ground to terminate the DCS Agreements (Finding 5). [25] The TAR Companies claimed that the Arbitrator took into account an issue that was not pleaded when he found that there is no objection from the TAR Companies on the temperature of the chilled water supplied by Jana DCS. supply of chilled water at 44oF by Jana DCS forms part of Jana DCS’ pleaded case. Jana DCS pleaded that it had supplied chilled water in accordance with the contractual specification of 44oF without any complaint from the TAR Companies, until Jana DCS had started to pursue objection from the TAR Companies on the temperature of the chilled water supplied by Jana DCS and consequently that Jana DCS did not breach the DCS Agreements are findings on an issue that forms part of the they did not have any ground to terminate the DCS Agreements (Finding Construction Sdn Bhd v Kenwise Sdn Bhd [2020] 1 LNS 1145, where Wong Kian Kheong J (as His Lordship then was) held that in deciding whether section 37(1)(a)(iv) and (v) can be relied on, the court should between the parties centres on the question of whether the termination of the DCS Agreements by the TAR Companies is valid. As such, I cannot see any merit in the TAR Companies’ argument that the Arbitrator’s [26] I had found in paragraphs [19] to [22] above that the issue of the its right to payment. [27] It therefore follows that the Arbitrator’s findings that there is no submission to arbitration. [28] The TAR Companies also argued that the Arbitrator’s finding that 5) falls outside the scope of the submission to arbitration. [29] In considering this argument, I am guided by Mammoth Empire consider the terms of the arbitration agreement and the scope of the issues referred by the parties to the arbitrator for resolution. [30] In this present case, it is abundantly clear that the dispute finding on the invalidity of the termination of the DCS Agreements (Finding 5) falls outside the scope of the submission to arbitration. [31] [31] failed to satisfy the court that the Awards should be set aside under section 37(1)(a)(iv) and (v) of the AA. Ground 3: The Awards are in conflict with public policy [32] [32] following passage in the judgment of the Federal Court in Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 2 MLJ 413 is instructive: “[55] Section 37(2)(b)(ii) of the AA 2005 provides that an award made by an arbitral tribunal would be in conflict with the public policy of Malaysia if a breach of the rules of natural justice occurred in connection with the making of the award. The circumstances stated in s 37(2) are by no means exhaustive. Other appropriate circumstances may also fall under the category of ‘public policy’ in view of the opening phrase ‘without limiting the generality of sub-para (1)(b)(ii)’ as appears in s 37(2) of the AA

However, it must be appreciated that the concept of public policy generally is itself a broad concept. But in applying the concept for the purpose of setting aside an award under s 37 of the AA 2005, the concept of public policy ought to be read narrowly and more restrictively. The court’s intervention should be sparingly used. The court must be compelled that a strong case has been made out that the arbitral award On the issue of the Awards being in conflict with public policy, the With the above considerations, I find the TAR Companies have conflicts with the public policy of Malaysia. As clearly stated by the Court of Appeal in Sigur Ros (with which we agree): ‘The concept of public policy must be one taken in the higher sense where some fundamental principle of law or justice is engaged, some element of illegality, where enforcement of the award involves clear injury to public good or the integrity of the court’s process or powers will be abused’. [56] Even though the court finds that a breach of the rules of natural justice has been established or that an arbitral award is in conflict with the public policy under s 37 of the AA 2005, it does not necessarily mean that the award must be set aside as a matter of course. The power of the court to set aside an award under s 37 is discretionary and will not be exercised automatically in every case where the complaints are established (see: Kyburn Investments Ltd v Beca Corporate Holdings Ltd [2015] 3 NZLR 644; Sigur Ros Sdn Bhd). [57] The court must evaluate the nature and impact of the particular breach in deciding whether the award should be set aside under s 37. 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 in conflict with public policy, with Jana De Nul (supra) as guidance. I am minded that the exercise of the court’s discretion to set aside an award on the basis of conflict with public policy must be used sparingly, and the issues advanced by them in the arbitration, the TAR Companies relied on the Singapore High Court case of Front Row Investment Holdings

It was held in this case that a court or tribunal will be in breach of natural justice if in the course of reaching its decision, it disregarded purposes, is to promote one-stop adjudication in line with the international practice …” (emphasis added) [33] I examined the TAR Companies’ argument on the Awards being concept of public policy must be interpreted narrowly and restrictively. [34] The TAR Companies raised the following issues to support its argument that the Awards are in conflict with public policy: a. The Arbitrator failed to address all issues advanced in the arbitration; b. The Arbitrator made erroneous findings of facts; and c. The findings of the Arbitrator are a result of an erroneous interpretation of the DCS Agreements, and an erroneous application of the law. [35] In relation to the first issue, that the Arbitrator failed to address all (Singapore) Pte Ltd v Daimler South East Asia Pte Ltd [2010] SGHC submissions and arguments made by parties without considering their merits. [36] The TAR Companies argued that the Arbitrator had ignored a critical issue raised by them, namely whether Jana DCS had increased the capacity of its facility in order to supply chilled water to the TAR Companies. [37] In Intraline Resources Sdn Bhd v Exxonmobil Exploration and Production Malaysia Inc [2017] 1 LNS 1022, Nazlan Ghazali J (as His Lordship then was) held as follows in addressing the argument that an admission had not been taken into account in the final award of the arbitral tribunal: “[67] In addition, this very issue of alleged admission itself had been argued and submitted by the parties before the Arbitral Tribunal. The plaintiff had raised this in its Reply Submissions. And the defendant in its Supplementary Reply Submissions made it free from ambiguity by reiterating its position, consistently held, that the work done was not AOCF and in any event, there was no agreement granted by the defendant for the same. Crucially, there is nothing in the Final Award itself which even implied that the Arbitral Tribunal considered the exchange to be any form of admission. [68] As such, the alleged admission cannot amount to any excess of mandate under Section 37(1)(a)(iv) and (v) since the question of how the Contract was intended to operate was central to the pleadings of the defendant that the said AOCF had not been approved by the defendant. Nor can it be construed as a breach of natural justice under Section 37(1)(b)(ii) and 37(2)(b)(i) and

(ii) because both litigants were given the opportunity to and did in fact present their arguments on the very point. [69] Such admission was argued by the plaintiff to have given rise to a breach of natural justice. It is difficult to appreciate how that can be the case. After all, it has been emphasized that the requirements of natural justice do not demand that a party is entitled to receive responses to all submissions and arguments presented, for only the right to be heard that is fundamental (see TMM Division Maritima SA de CV v. Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972). And in the instant application, even the AFS Revision provisions, which amounted to the main fodder of attack employed by the plaintiff to set aside the Final Award cannot help progress its case since the parties were specifically invited by the Arbitral Tribunal to address the impact of the same.” (emphasis added) [38] Guided by the above authority, I am of the considered view that the Arbitrator is not bound to adopt and respond to every argument or issue put forward by the parties. He has the discretion to decide on the principle issues that he would need to consider to ensure that the dispute can be fairly and judiciously determined. [39] Further, the facts in Front Row (supra) are clearly distinguishable because in that case, a point that had been explicitly disregarded. In this "The Tribunal is unable to agree with the Respondent that the first issue should involve consideration of whether the Claimant had increased the capacity of its facility in order to supply the cooling load. The fact of the matter is that the Respondent’s cause of action for alleged breach of the DCSA revolves around events which took place in late 2018 and early 2019. As such, in the view of the Tribunal, the Respondent having been the beneficiary of the supply of cooling load and having paid for the supply, without any material complaint until 2018, cannot now be seen to assert that the Claimant, in fact, did not possess the necessary infrastructure to meet the cooling load requirements of the case, the Arbitrator had in fact applied his mind to the question of whether Jana DCS had increased the capacity of its facility in order to supply chilled water to the TAR Companies. [40] [40] 27 of the TAR PHE Award and paragraph 28 of the PH Marina Award, which state that: Respondent from the very outset ...” [41] [41] Jana DCS had increased the capacity of its facility was considered, and was not ignored by the Arbitrator, as contended by the TAR Companies. For reasons as set out, he considered the matter to be a non-issue, a conclusion that he was entitled to reach. I do not find there to be any breach of natural justice in the Arbitrator reaching this conclusion. It is clear from the above paragraphs that the question of whether This is evident in paragraph 28 of the TAR PH Award, paragraph support the ground of breach of public policy is that the Arbitrator had Arbitrator made an error on these findings of facts, the TAR Companies are essentially inviting this court to re-litigate factual issues arising in the course of the arbitration and engage in an appeal on the merits. I am mindful that the arbitrator should remain the master of the facts, and the undertaken a comprehensive analysis of the facts, and assessed documentary and oral evidence and the competing positions taken by the parties, before he arrived at his conclusions. This is clear from the Awards: [42] The second argument put forward by the TAR Companies to made erroneous findings of facts. These relate specifically to: a. The existence of serious pre-contractual negotiations on the agreed temperature for the supply of chilled water (Finding 1); b. The supply of chilled water at 44oF from the inception of the DCS Agreements (Finding 2); and c. The TAR Companies’ collateral motive to terminate the DCS Agreements (Finding 6). [43] Findings 1, 2 and 6 are findings of facts. In contending that the court should not interfere with findings of facts (see AJWA For Food Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd & another appeal [2013 2 CLJ 395] and Far East Holdings Bhd & anor v Majlis 1 CLJ 693). [44] Further, it is evident from the Awards that the Arbitrator had Ugama Islam dan Adat Resam Melayu Pahang & other appeals [2018] contractual negotiations, the Arbitrator concluded in paragraph 36 of the TAR PH Award, paragraph 35 of the TAR PHE Award and paragraph 36 of the PH Marina would have entered into a multimillion-dollar contract without engaging in substantive pre-contractual negotiations. The Arbitrator further found that the terms of the DCS Agreements clearly contemplated the need to engage in extensive negotiations to ensure infrastructure capability. The Arbitrator also found that the TAR Companies had appointed Norman Disney Young as their project consultant, affording evidence of the need for them to ensure technical requirements are satisfied. Representatives of the TAR Companies and their consultants had visited Jana DCS’ plant. Further, the Arbitrator accepted the evidence of Jana DCS’ witnesses that there were protracted negotiations, and relied on communications between the parties to draw inferences TAR PH Award, paragraph 51 of the TAR PHE Award and paragraph 52 of the PH Marina Award that Jana DCS had discharged the burden of proving that the chilled water was supplied at 44oF from the inception of the DCS Agreements. The Arbitrator relied on contemporaneous documents from the testing and commissioning results a. Award that it is inconceivable that the TAR Companies to the existence of pre-contract negotiations. b. On Finding 2, the Arbitrator found in paragraph 51 of the In respect of Finding 1 on the existence of serious pre- readings taken at joint inspections, e-mail correspondences and oral evidence of witnesses, to terminate the DCS Agreements, the Arbitrator had extensively analysed the ingredients leading to this finding, in paragraph 76 of the TAR PH Award, paragraph 73 of the TAR PHE Award and paragraph 68 of the PH Marina Award. He relied on the testimony of TAR PH and TAR PHFE’s witnesses, who testified that TAR PH and TAR PHFE were exploring ways to exit the DCS Agreements in 2016 and 2017 for financial reasons, and had engaged lawyers for this purpose. The Arbitrator also referred to an asset sale agreement that TAR PH and TAR PHFE were proposing to enter into which could arguably have resulted in the DCS Agreements being redundant. Finally, the Arbitrator found that the conduct of TAR PH and TAR PHFE between October 2018 to February 2019, leading up to the issuance of the Notice concoct a picture of a breach of the DCS Agreements. As for PH Marina, the Arbitrator found that the evidence of the witness for PH Marina, and particularly her lack of knowledge of the grounds for termination of the DCS Agreements, raise serious questions on the genuineness of the claim of breach of the DCS Agreements. From this, the Arbitrator concluded that the purported termination of reach this conclusion. c. of Termination afforded evidence of a planned design to (which were accepted by both parties), the temperature On Finding 6, the TAR Companies’ collateral motive to the DCS Agreement was pursuant to a collateral motive, and in bad faith. [45] It is therefore clear that the Arbitrator had carried out a meticulous analysis of the evidence and the submissions of parties, in arriving at his conclusion on the factual issues in Findings 1, 2 and 6. [46] The final argument put forward by the TAR Companies to support its application to set aside the Awards on the basis of conflict with public policy is that the findings of the Arbitrator are a result of an erroneous interpretation of the DCS Agreements, and an erroneous application of the law. [47] This argument relates to two findings, namely: a. Finding 4, that the TAR Companies’ refusal to pay charges under the DCS Agreements amounted to a breach of the DCS Agreements; and b. Finding 7, that clause 13.5.1(b) of the DCS Agreements is not a penalty clause, and that Jana DCS’ claim based on the formula in the clause is not exorbitant. [48] Learned counsel for the TAR Companies argued that the Arbitrator’s erroneous interpretations of the DCS Agreements and the law are against public policy. With respect, I disagree. It is disingenuous to argue that inconsistency with public policy had arisen merely because a party does not agree with the Arbitrator’s interpretation and analysis. to reach the conclusion that he did on his interpretation of the DCS default, the Arbitrator took into account his findings that Jana DCS had continued to supply chilled water at the agreed temperature and that the contrived. He also considered correspondences between the parties during the relevant period. These led him to the conclusion that an event the clause (see paragraph 81 of the TAR PH Award, paragraph 82 of the TAR PHE Award and paragraph 74 of the PH Marina Award), before finding that the Notice of Termination was a notice by the TAR Companies to repudiate or abandon their obligations under the DCS Agreements (see paragraph 82 of the TAR PH Award, paragraph 83 of the TAR PHE Award and paragraph 75 of the PH Marina Award). In the circumstance, he held that Jana DCS as the innocent party was entitled to accept the termination damages clauses, and specifically the law after the Federal Court decision [49] It is also clear that the Arbitrator had provided sufficient reasons Agreements. [50] In relation to clause 13.2 of the DCS Agreements on events of TAR Companies’ complaints on the temperature fluctuations were of default had occurred. [51] On clause 13.5.1(b), the Arbitrator considered the construction of and claim damages. [52] The Arbitrator then went on to analyse the law on liquidated of Cubic Electronics Sdn Bhd (in liquidation) v Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 (see paragraphs 83 to paragraph 76 to 80 of the PH Marina Award Award). 87 of the TAR PH Award, paragraphs 84 to 88 of the TAR PHE Award and Jana DCS is entitled to receive damages in accordance with the formula in clause 13.5.1(b) of the DCS Agreements, and that the TAR Companies do not regard this case as one which justifies the court to exercise its powers to set aside the Award on the basis of conflict with public policy arising from a breach of rules of natural justice, pursuant to section for Jana DCS that a breach of natural justice must be one that would shock the conscience, that is clearly injurious to public good or wholly offensive to the ordinary, reasonable and fully-informed member of the public (see Jana De Nul (supra)). In a case where the breach of natural justice is significant and might have affected the outcome of an award, the award the grant of the Award, in this case, had been executed in a manner inconsistent with public policy, both in the substance of the Award, as I [53] Applying the law to the facts of the case, the Arbitrator found that have not proven that the damages are unreasonable (see paragraph 88 of the TAR PH Award, paragraph 89 of the TAR PHE Award and paragraph 81 of the PH Marina Award Award). [54] No error can be found in the Arbitrator’s reasoning and as such, I 37(1)(b)(ii) read with section 37(2)(b)(i) of the AA. [55] In the course of submissions, I was reminded by learned counsel may be set aside (see Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd [2020] 12 MLJ 198). [56] There is no evidence to suggest that the arbitral proceedings and had examined earlier, and in the process of arbitration. delivery of the Award, the Arbitrator relied on pleadings and the issues set out in the pleadings, documents, witness statements and written submissions filed by the more than sufficient opportunity to ventilate their [57] In relation to the process of arbitration: a. clause 16 of the DCS Agreements. b. Companies and was accepted by Jana DCS. c. filed by the parties. d. parties. e. respective cases during the process of arbitration. [58] Taking into account the totality of my considerations and findings as set out above, I found no breach of natural justice in the substance of the Award or in the process of arbitration. [59] I found all grounds relied on by the TAR Companies to set aside the Awards pursuant to section 37(1)(a)(iv), section 37(1)(a)(v), section 37(1)(b)(ii) and section 37(2)(b)(i) read with section 37(2)(b)(ii) of the AA to be without merit. There is no indication that either party had not been given In the course of the nine-day proceedings, and in the The issues in the arbitration were defined in pleadings The nomination of the Arbitrator was made by the TAR The submission to arbitration was made pursuant to D. The Enforcement Applications [60] The Enforcement Applications are filed under section 38 of the AA. The section provides as follows: “(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 recognised 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 –

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.” [61] An application for an arbitral award to be recognised as binding and enforced must satisfy the formal requirements under section 38 of the AA. Once these formal requirements have been complied with, the burden shifts to the defendant to satisfy the court why the recognition and enforcement of the award should be refused under section 39 of the AA (see Open Type Joint Stock Company Efirnoye (“EFKO”) v Alfa Trading Ltd [2012] 1 CLJ 323). [62] In the present case, it is not in dispute that certified true copies of the Awards and the DCS Agreements had been exhibited to the affidavits in support of the Enforcement Applications, in compliance with section 38(2) of the AA. [63] The TAR Companies relied on section 39(1)(a)(iv) and (v) and section 39(1)(b)(ii) to oppose the recognition enforcement of the Awards. The relevant provision reads: “(1) Recognition or enforcement of an award, irrespective of the State in which it was made, may be refused only at the request of the party against whom it is invoked –

where that party provides to the High Court proof that – …

(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; …

if the High Court finds that –

(ii) the award is in conflict with the public policy of Malaysia.” [64] These grounds are the same as the grounds to set aside the Awards, in section 37(1)(a)(iv) and (v) and section 37(1)(b)(ii) of the AA. As such, in opposing Enforcement Applications, the TAR Companies relied on their arguments in the Setting Aside Applications. [65] As I have found there to be no merit in the grounds relied on by the TAR Companies in the Setting Aside Applications, it therefore follows that my finding would also apply to the TAR Companies’ grounds to oppose the Enforcement Applications. It is on this basis that I allowed the Enforcement Applications. E. Decision [66] With my considerations and findings as set out above, I dismissed the Setting Aside Applications and allowed the Enforcement Applications. Costs were also awarded to Jana DCS for both applications. Dated 28 April 2023 - sgd - Adlin Abdul Majid Judicial Commissioner High Court of Malaya Commercial Division (NCC6) Kuala Lumpur WA-24NCC(ARB)-18-03/2022, WA-24NCC(ARB)-19-03/2022 and WA-Counsel: 24NCC(ARB)-20-03/2022 Applicants : Sanjay Mohan (together with Tan Wye Shaun) of Messrs. Sanjay Mohan Respondent : Liew Teck Huat (together with Ong Kang Nyong) of Messrs. Zaid Ibrahim Suflan TH Liew & Partners WA-24NCC(ARB)-26-04/2022, WA-24NCC(ARB)-27-04/2022 and WA- 24NCC(ARB)-28-042022 Applicant : Liew Teck Huat (together with Ong Kang Nyong) of Messrs. Zaid Ibrahim Suflan TH Liew & Partners Respondents : Sanjay Mohan (together with Tan Wye Shaun) of Messrs. Sanjay Mohan