Jiangsu Provincial Construction (M) Sdn Bhd v D Box System (M) Sdn Bhd (WA-24C(ARB)-18-05/2023)

the application by Jiangsu Provincial Construction (M) Sdn Bhd (‘Jiangsu’) in Originating Summons No. WA-24C(ARB)-18- 05/2023 (‘O.S. No. 18’) to –

be given leave to initiate the application to set aside the Award dated 31.10.2022 (‘Award’) by the learned Arbitrator, Ar Menaha Ramanath (‘Arbitrator’) out of time pursuant to O. 1A, O. 3, r. 5 and O. 92, r. 4 of the Rules of

(ii) set aside the Award pursuant to paragraph 37(2)(b) of the Arbitration Act 2005 [Act 646] (‘AA 2005’) (‘Setting Aside Application’); and

the application by D Box System (M) Sdn Bhd (‘D Box’) in O.S. No. WA-24C(ARB)-38-08/2023 (‘O.S. No. 38’) to enforce the Award pursuant to s 38 AA 2005 (‘Enforcement Application’). [2] After having considered the affidavit evidence and the oral and written submissions of the parties, I had dismissed the Setting Aside Application and allowed the Enforcement Application. [3] Jiangsu is aggrieved with my decision and I now provide my full grounds of judgment. The Cause Papers [4] The cause papers for each application are as follows:

Jiangsu’s O.S. dated 9.5.2023 (encl. 1);

Jiangsu’s Affidavit In Support (‘AIS’) affirmed by its Director, Sun Keqiang on 9.5.2023 (encls. 2 - 7);

D Box’s Affidavit In Reply (‘AIR’) affirmed by its Director, Yow Keng Seong on 30.5.2023 (encl. 10); and

Jiangsu’s AIR affirmed by the same deponent on 14.6.2023 (encl. 11).

D Box’s O.S. dated 24.8.2023 (encl. 1);

D Box’s AIS affirmed by the same deponent on 23.8.2023 and (encl. 2);

Jiangsu’s AIR affirmed by the same deponent on 5.9.2023 (encl. 3); and

D Box’s AIR affirmed by the same deponent on 13.9.2023 (encl. 4). Background Facts [5] Jiangsu is a private limited company incorporated under the laws of Malaysia and having its registered address at No. 3A-3 & 3A-4, Medan Klang Lama 28, 419, Jalan Klang Lama, 58000 Kuala Lumpur. [6] D Box is a private limited company incorporated under the laws of Malaysia with its address for service at No. 5.033, Level 5, Block J, Jaya One, 72A, Jalan Universiti, 46200, Petaling Jaya, Selangor. [7] By the Letter of Award dated 8.6.2018 (‘LoA’), Jiangsu appointed D Box as the sub-contractor to supply labour, materials, plant and machinery (‘Works’) for the construction and completion of the project known as: “Cadangan Pembangunan Perumahan dan Perniagaan di atas Sebahagian Lot 8094, Mukim Penor, Daerah Kuantan Pahang Darul Makmur Secara Penyerahan dan Pemberimilikan Semula Tanah di bawah Seksyen 204D Kanun Tanah Negara untuk Tetuan O & C Properties (Kuantan) Sdn Bhd. Main Building Works (Including Site Clearance, Temporary Works, Earthworks, Foundation System, M&E Works and

Terrace Houses - 979 Units

(ii) Semi Detached Houses - 130 Units” (‘Project’) for a firm price lump sum of RM92 million. The main contractor for the Project is Kencana Amanjaya Sdn Bhd (‘KASB’) and the main sub-contractor is Jiangsu. [8] The completion period for the Works, inclusive of mobilization, is 24 months commencing from 23.4.2018 to 22.4.2020 (see Clause 6.0 of the LoA). The “Term of Payment” is set out in Clause 7.0 of the LoA. [9] By the letter dated 20.7.2018, Jiangsu informed D Box that there was no site activity for the earth backfilling works for the period from 9.7.2018 to 18.7.2018. D Box replied in the letter dated 30.7.2018 stating, among others, that earth backfilling started on 26.5.2018 and that Jiangsu has only paid RM100,000.00 to D Box on 16.7.2018 although D Box has submitted the 1st and 2nd progress claims in June 2018 for the total sum of RM1,275,460.44. [10] There were subsequent correspondences between the parties regarding the alleged slow progress of the Works. Eventually, vide the letter dated 20.8.2018, Jiangsu served a Notice of Non-Performance to D Box. [11] D Box then forwarded its Recovery Plan Proposal on 23.8.2018. [12] Meetings were held and the discussion on 10.9.2018 was recorded in Jiangsu’s letter of even date as follows:

the contract be determined and terminated;

with regards to the work done and approved building materials on site, a joint evaluation exercise will be carried out on 13.9.2018;

upon completion of the joint evaluation, D Box will demobilize by 16.9.2018; and

the taking over and costs of building materials which have been procured by D Box will be dealt with separately and amicably. [13] D Box submitted its Summary of Claims to Jiangsu in the letter dated 8.10.2018. The particulars of D Box’s expenses amounted to RM2,251,304.18. [14] Thereafter, D Box disputed the Draft Final Account from Jiangsu and except for the sum of RM700,000.00 which was paid on 2.8.2018, no other amount was paid by Jiangsu to D Box. [15] The parties then brought this matter to arbitration where, in paragraph 32 of the Statement of Case, D Box claimed, among others, for –

the balance of the value of work done under the subcontract amounting to RM1,551,205.18;

alternatively, special damages in the sum of RM1,551,205.18; and

general damages for loss of business opportunity and future business prospects with Jiangsu as the established harmonious business relationship between the parties has now been broken; [16] In the Award, the Arbitrator found –

in respect of subparagraph 15(a) above, Jiangsu shall pay the balance of the value of work done under the subcontract in the sum of RM508,084.09; and

in respect of subparagraphs 15(b) and (c) above, D Box’s claims were dismissed, and awarded costs of RM100,000.00 and the Arbitrator’s fees, expenses and PAM administrative fee of RM64,800.00 with interest at the rate of 5% per annum on the sum of RM508,084.09 and costs. The Setting Aside Application [17] In O.S. No. 18, Jiangsu stated four grounds for its application, namely – “1. The Arbitrator has placed weight on the Defendant's document which is not proven nor been verified during the arbitration proceeding by the witnesses and not been subjected to cross-examination by the Plaintiff;

The Arbitration Tribunal had ignored and did not delve into the fact that the construction contract between the Plaintiff and the Defendant is based on ‘back to back’ basis wherein the payment obligation and valuation of the Defendant's work were based on the original scope of contract between the Plaintiff and the main contractor which still failed to be done until now.

The Arbitrator erred in law and/or in fact by failing to take into consideration the deductions in which the Plaintiff had paid on behalf of the Defendant in the Final Account.

The Arbitrator’s failure in considering all the matters stated above is in breach of “natural justice”.”. On the hearing date, Jiangsu’s counsel informed the Court that Jiangsu will not proceed with the 2nd and 3rd grounds as aforesaid. [18] I had enquired on the specific provision under s 37 AA 2005 which was being relied upon by Jiangsu as the intitulement only refers to ss 37(2)(b) and 50 AA 2005. Jiangsu’s counsel clarified that the provision is subparagraph 37(2)(b)(i) AA 2005 in respect of the 1st ground as abovementioned. [19] The relevant part of s 37 AA 2005 for present purposes is shown below: “Application for setting aside

(1) An award may be set aside by the High Court only if –

…

the High Court finds that – …

(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 –

…

a breach of the rules of natural justice occurred –

during the arbitral proceedings; or

(ii) in connection with the making of the award. …”. [20] In determining the Setting Aside Application, I am mindful of the general provisions in the AA 2005 which provides as follows: “Extent of court intervention

No court shall intervene in matters governed by this Act, except where so provided in this Act.” “Equal treatment of parties

The parties shall be treated with equality and each party shall be given a fair and reasonable opportunity of presenting that party’s case.”. “An award is final and binding

(1) An award made by an arbitral tribunal pursuant to an arbitration agreement shall be final and binding on the parties and may be relied upon by any party by way of defence, set-off or otherwise in any proceedings in any court.”. [21] In addition, it is trite that –

this Court does not sit in appellate capacity. This Court cannot scrutinise the merits of the parties’ respective case or responses before the arbitral tribunal and interfere in the findings of facts and/ or law made by the arbitral tribunal even if there is an error. The powers of this Court are confined to the provisions of the AA 2005 (see The Government of India v Cairn Energy India Pty Ltd & Ors [2014] 9 MLJ 149);

the public policy ground for setting aside an arbitration award was expounded by the Federal Court in Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 2 MLJ 413 (see in particular paragraphs 49, 52, 55 and 56) whereby –

in applying the concept of public policy for the purpose of setting aside an award under s 37 AA 2005, the concept of public policy ought to be read narrowly, more restrictively and 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;

(ii) the public policy ground for setting aside an arbitral award could be invoked where a violation of the most basic and fundamental notions or principles of morality and justice is proven. It covers fundamental principles of law and justice in both substantive and procedural aspects;

(iii) instances such as “patent injustice”, “manifestly unlawful and unconscionable”, “substantial injustice”, “serious irregularity” and other similar flaws in the arbitral process and award would fall within the applicable concept of public policy but these do not mean injustice which is more than de minimis. What is required is that the injustice had real effect and had prejudiced the basic rights of the applicant and where the upholding of the arbitral award would shock the conscience, be clearly injurious to the public good or wholly offensive to the ordinary reasonable and fully informed member of the public; and

(iv) 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 conflicts with the public policy of Malaysia before an order can be made to set aside the award;

the guiding principles on the exercise of residual discretion when an application for setting aside an award is grounded on breach of natural justice were laid down by the apex court in paragraph 53 of the judgment in Master Mulia Sdn Bhd v Sigur Rus Sdn

the burden is on Jiangsu to prove, on a balance of probabilities, its grounds of challenge to merit a setting aside of the Award; and

even though the Court may find that a breach of the rules on natural justice has been established or that an arbitral award is in conflict with the public policy under s 37 AA 2005, this does not necessarily mean that the Award must be set aside as a matter of course. The power of this Court to set aside the Award is discretionary and will not be exercised automatically in every case where the complaints are established (see paragraph 56 in Jan De Nul’s case (supra, at p 429 citing Kyburn Investments Ltd v Beca Corporate Holdings Ltd [2015] 3 NZLR 644 and Sigur Ros Sdn Bhd v Master Mulia Sdn Bhd [2018] 3 MLJ 608). These discretionary powers must be exercised judiciously. [22] This Court was guided by the aforesaid legal principles in determining the issues which arose in cases such as SJIC Bina Sdn Bhd v Iskandar Regional Development Authority and another case [2020] MLJU 2366, Propel Synergy Sdn Bhd v Vistasik Sdn Bhd and another case [2022] MLJU 824, East Coast Economic Region Development v Multi-Spex Architects Sdn Bhd and another case [2022] 11 MLJ 761 and Tunas Manja Development & Construction (KL) Sdn Bhd v SPNB Aspirasi Sdn Bhd and another application [2024] 7 MLJ 617 (all these decisions were affirmed by the Court of Appeal). This Court was similarly guided in arriving at the decision in this instant case. Preliminary Issue: Whether Jiangsu should be given leave to initiate the proceeding by way of O.S. to set aside the Award out of time pursuant to O. 1A, O. 3, r. 5 and O. 92, r. 4 of the RC 2012 [23] Sub-s 37(4) AA 20025 provides that: “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.”. [24] O. 69, r. 5 RC 2012 states that – “5. (1) Subject to subparagraph (2), an application to the Court to set aside an award under section 37 of the 2005 Act may be made –

at any time within ninety days from the date on which the applicant received the award ;…”. [25] D Box contended that Jiangsu had received the Award from the Arbitrator on 10.11.2022 and therefore Jiangsu had until 90 days from that date to file the Setting Aside Application. However, Jiangsu filed the Setting Aside Application only on 9.5.2023. D Box asserted that this delay on Jiangsu’s part has resulted in the Setting Aside Application being invalid. [26] Jiangsu submitted that there is no evidence to substantiate D Box’s allegation that Jiangsu had indeed received the Award on 10.11.2022. Exhibit “YKS-1” in D Box’s AIR (encl. 10) is merely a statement by the Arbitrator without any proof of acknowledgment by Jiangsu to confirm receipt of the Award on 10.11.2022. It is hearsay evidence and should not be admitted by the Court. Furthermore, D Box did not forward the Award to Jiangsu and request for payment. [27] Exhibit “YKS-1” shows that Jiangsu’s solicitor had wrote to the Arbitrator stating that “We have our client’s instruction to collect the Final Arbitration Award by today. We will arrange for the same.”. The Arbitrator responded by saying, “Yes The Award was collected by the Respondent Counsel’s dispatch this morning”. [28] In my view, the Arbitrator had clearly stated in the e-mail dated 10.11.2022 that Jiangsu’s counsel had collected the Award on that date. Jiangsu thus had 90 days from 10.11.2022 to apply to set aside the Award. [29] As an alternative argument, Jiangsu contended that the Court has a discretion to grant an extension of time for Jiangsu to initiate the setting aside of the Award proceeding although the 90 days provided under the AA 2005 had expired. [30] Jiangsu relied on the following provisions in the RC 2012 in seeking leave to be allowed to file the Setting Aside Application out of time: “Regard shall be to justice (O. 1A) In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules.” “Extension of time (O. 3, r. 5)

5.

The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules or by any judgment, order or direction, to do any act in any proceedings.

The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent in writing without an order of the Court being made for that purpose.” “Inherent powers of the Court (O. 92, r. 4)

For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”. [31] In the AIS, Jiangsu explained the delay in filing the Setting Aside Application in these words: “12. Pertaining to the Plaintiff's application for an extension of time to file the Plaintiff's setting aside of the Arbitration Award, I verily state that the Plaintiff's delay in filing and initiating this Originating Summons to set aside the Arbitration Award within the 90-days period as stipulated is unintentional and unintended.

I verily state that the delay is due to the procedure that the Plaintiff had to go through which required further instructions and permission from the Plaintiff's headquarters in China regarding the next steps to be taken by the Plaintiff after the issuance of Arbitration Award. I humbly and verily state that the delay cannot be avoided and was not intended by the Plaintiff.”. [32] Jiangsu further affirmed in paragraph of its AIR that “… the Plaintiff's delay in filing the Plaintiff's Originating Summons here is unintentional and unavoidable. Since the Plaintiff is wholly owned by Jiangsu Provincial Construction Group Co. Ltd, a company which is based in China, the Plaintiff has to come up with paperworks and presentations before the China Headquarters able to decide and agreed for the Plaintiff to proceed with the application to set aside the Arbitration Award between the Plaintiff and the Defendant.”. [33] Upon further directions by the Court, the learned counsels had undertaken additional research on the case authorities which have discussed the issue of the discretion of the court to extend the time for making an application under s 37 AA 2005. The cases cited by the parties are Government Of The Lao People’s Democratic Republic v Thai-Lao Lignite Co Ltd (“TLL”), A Thai Company And Anor [2011] MLJU 361, Percon Corp Sdn Bhd v. Yap Choon Loy [1998] 3 CLJ 423, Kwan Lee Construction Co Ltd v. Elevator Parts Engineering [1997] 1 HKC, Kembang Serantau Sdn Bhd v Jeks Engineering Sdn Bhd [2015] MLJU 1189, Triumph City Development Sdn Bhd v Kerajaan Negeri Selangor Darul Ehsan [2017] MLJU 1518 and Awan Timur Palm Oil Mills Resources (Johor) Sdn Bhd v Mewaholeo Industries Sdn Bhd [2018] MLJU 1343.Basically, the courts have an unfettered discretion to extend the time but this discretion will be exercised sparingly. [34] I have considered Jiangsu’s averment as above quoted and I was not persuaded by the reason put forth by Jiangsu to justify its prayer to be given an extension or abridgment of time to file the Setting Aside Application. [35] Jiangsu did not provide any evidence to show the communications or correspondences between Jiangsu and its headquarters in China with regards to the obtainment of instructions to set aside the Award. [36] In any event, in today’s borderless world with several modes of instantaneous communications available, 90 days is more than sufficient for Jiangsu to do the needful in order to obtain a decision from the management at its headquarters in China. Jiangsu cannot feign ignorance of the time frame which is expressly stipulated in sub-s 37(4) AA 20025 and O. 69, r. 5 RC 2012 and must be bound by the same. [37] I agree with D Box’s submission that Jiangsu’s failure to obtain the necessary instructions is Jiangsu’s own internal issues and that the excuse given for the delay is “half-baked”, “frivolous” and “unreasonable”. [38] The parties have voluntarily submitted their dispute to arbitration, they are represented by counsels and must be bound by the provisions in the AA 2005, including on the 90 days requirement. There are no compelling reasons for this Court to exercise its discretion to grant leave for Jiangsu to be allowed to file the Setting Aside Application out of time. [39] Prayer (i) in O.S. No. 18 is not allowed and it follows that the entire O.S. must be dismissed. Nevertheless, for the sake of completeness, I will proceed to discuss the merit of the first ground in O.S. No. 18 in Jiangsu’s attempt to set aside the Award. 1st Ground: Whether the Award should be set aside pursuant to subparagraphs 37(1)(b)(ii) and 37(2)(b)(i) AA 2005 [40] In the arbitration proceedings, one of the parties’ main submissions is with regards to the calculation of the earthworks. Jiangsu contended that, although prior to the mutual termination of the contract, the parties had agreed to conduct a joint measurement and inspection, however D Box had abandoned the same as a basis for the calculation of the earthworks and had forwarded its own Summary of Claim for purposes of the computation of the final account. [41] It was further argued by Jiangsu that it had provided the calculation as computed by its competent surveyors. Jiangsu’s surveyor was called and testified during the arbitration proceedings on how the calculation is derived. On the other hand, D Box’s surveyor was not called to explain on the calculation of the earthworks even though during the hearing, D Box had indicated that it would do so. [42] In addition, D Box did not produce its own surveyors report and earthworks calculation in its Bundle of Documents. The document that D Box relied upon in proving the calculation was in fact taken from Jiangsu’s Bundle of Documents. In these circumstances, D Box’s calculation cannot hold much evidential value. [43] In paragraphs 2.27 and 4.29 of the Award, the Arbitrator said: “2.27 … Claimant’s letter dated 18 January 2019 to Respondent computed and drawn by Tan on 14 and 15 February 2019, checked by Eric Ong on 15 February 2019 and certified by Licensed Zhari Afandi Bin Hussain with final calculation of earthwork quantity as follows Total Cut Volume = 2245.697 cu. m Total Filled Volume = 53540.715 cu. m …

4.29 Computation of Earthworks Para 2.05, Respondent prepared Interim Progress Certificate dated 30 June 2018 and attached Bill No.4 on the cost of Earth backfill:

Workdone Site clearing RM250,000.00 70%

RM175,000.00 Earthwork Backfill RM3,891,337.00 11% RM428,047.07 Para 2.09, Respondent letter dated 15 August 2018 to Claimant was on the site report that had been made:

Site Clearing (02/05/18 – 09/06/18) Delay duration = 66 days Workdone progress = 72%

Earthworks (12/05/18 – 11/09/18 Balance duration = 24 days Workdone progress = 20% Para 2.15, Claimant has recorded 111 lorry importing earth to the site as at 4 September 2018 and in Claimant’s Written Submission in Reply Para 10, Claimant estimated volume of earth imported by 111 nos lorries with 20 ton capacity to be 56,689.92 m3. Para 2.27, Claimant’s letter dated 18 January 2019 to Respondent computed and drawn by Tan on 14 and 15 February 2019, checked by Eric Ong on 15 February 2019 and certified by Licensed Zhari Afandi Bin Hussain with final calculation of earthwork quantity as follows: Total Cut Volume = 2245.697 cu. m Total Filled Volume = 53540.715 cu. m With reference to Para 4.18 and Para 4.27, the backfill completed by the Claimant is computed to be 53,540.715 / 402,766 cu.m. = 13.29% of the total backfill required for the Project. Para 2.16, Respondent’s Final Account has stated the following: Bill No.4 Infra Provisional for Period Ending 10 September 2018 attached to the Final Account recorded the following:

Workdone Site Clearing RM250,000.00 70% RM175,000.00 70% RM175,000.00 0% 0.00 2.Earthwork Backfill RM3,891,337.00 11% RM428,047.07 8% RM318,849.91 -3% 109,197.16 Total Amount RM29,372,932.00 RM493,849.91 RM- 109,197.16 Respondent has reduced the percentage of completed backfill based on calculations instead of actual state of backfill at the site. This also contradicts its own report from site as at 15 August 2018 in para 2.09. Considering all the facts and circumstances available to the Arbitrator for this arbitration and in accordance with Clause 34.8(d) of the Conditions of Contract, I find and hold that computation of backfill shall be based on certified survey as per Para 2.27 on the issue of completed backfill valued at 13.29 % of the backfill to be carried out under the Subcontract to determine the Final Account as per Clause 25 of the Conditions of Contract.”. [44] Jiangsu submitted that the admission and acceptance of D Box’s earthworks calculation by the Arbitrator in paragraphs 2.27 and 4.29 of the Award is a breach of the rules of natural justice because the Arbitrator had disregarded the available evidence and went against fundamental principles of law that it is D Box’s responsibility to prove its calculation, which it had failed to do. This amounts to serious irregularity and patent and substantial injustice to Jiangsu and the thus, the Award should be set aside. [45] In rebutting the position taken by Jiangsu, D Box narrated what transpired during the arbitration proceeding, namely, that –

the parties had submitted their own calculation for the earthworks for the Project;

D Box had submitted its calculation based on the actual condition of the site, which is consistent with the supporting records, where Jiangsu had recorded 111 lorries with 20 tons capacity that carried earth to the site. The calculated earthwork backfill was 56,689.92 m3, which is not far from the actual calculation by the surveyor of 53,540.715 cu.m.;

based on the Interim Progress Certificate dated 30.6.2018, the recorded Earthwork Backfill by Jiangsu was 11%, which amounts to RM428,047.07. By referring to Jiangsu’s Final Account, Jiangsu had reduced the Earthwork Backfill to 8%, amounting to RM318,849.91. This is inconsistent with D Box’s letter dated 15.8.2018 wherein it is stated that the Earthwork Backfill was 20% done;

Jiangsu’s 1st witness had stated that the amendment of the Earthwork Backfill from 11% to 8% was based on the joint inspection conducted on 13.9.2018, As Built Level Survey and Cross Section submitted by Jiangsu. However, all the statements and calculations given by Jiangsu was never proven or confirmed by a certified surveyor; and

D Box was unable to call its surveyor as a witness due to inevitable circumstances which was informed to, and allowed by, the Arbitraror. [46] Judging from the submissions of the parties, especially by Jiangsu, the issues raised before this Court clearly pertain to the Arbitrator’s assessment of the evidence and the merits of the Award. [47] According to Master Mulia (supra), the Court must first consider which rules of natural justice was breached; how it was breached; and in what way the breach was connected to the making of the Award. There was no averment or submission by Jiangsu on these matters. All that Jiangsu did was to refer to paragraphs 2.27 and 4.29 of the Award where the Arbitrator had compared the calculation of both parties for the computation of earthworks. [48] What is obvious is that the parties were given the opportunity to present their case and to make submissions and the Arbitrator had considered these in arriving at the Award. Jiangsu has not come close to satisfying the test as laid down in Jan De Nul’s case (supra). [49] In the circumstances, prayer (ii) in O.S. No. 18 must similarly be dismissed as Jiangsu has failed to prove, on a balance of probabilities, that the Award should be set aside on the ground that it is in conflict with the public policy of Malaysia in that there was a breach of the rules of natural justice whether during the arbitral proceedings or in connection with the making of the Award. The Enforcement Application [50] On the hearing date, Jiangsu’s counsel also informed the Court that Jiangsu will not pursue all the issues which was raised in defending the Enforcement Application such as the purported failure by D Box to satisfy the mandatory requirements of sub-s 38(2) AA 2005 and O. 69, r. 8(2) RC 2012. Instead, Jiangsu agreed that the decision will be the flip side of the outcome of the Setting Aside Application. [51] As I have decided to dismiss the Setting Aside Application and Jiangsu has chosen not to show other reasons as to why the Enforcement Application should not be allowed in favour of D Box, the inevitable conclusion is that the Enforcement Application must be allowed. Conclusion [52] Based on all the aforesaid considerations, the Setting Aside Application was dismissed with costs of RM6,000.00 and the Enforcement Application was allowed with costs of RM4,000.00, subject to allocator. Dated: 2 January 2025 (ALIZA SULAIMAN) Judge High Court in Malaya Kuala Lumpur Counsels/ Solicitors: For the Plaintiff in O.S. No. 18 and the Respondent in O.S. No. 38: Noor Muslihah Binti Marhaban Messrs. Hew, Lee & Co. Advocates & Solicitors D-18-07, Menara Mitraland No.13A, Jalan PJU 5/1 Kota Damansara 47810 Petaling Jaya Selangor For the Applicant in O.S. No. 38 and the Defendant in O.S. No. 18: Colin Anak Victor George (Christine Jee Panji Papanji with him) Messrs. Colin Victor & Co Advocates & Solicitors D-61-1, Jalan Zuhal U5/179