M101 Entity Sdn Bhd v Geopancar Sdn Bhd (WA-24C(ARB)-15-06/2020)

(a) the application by M101 Entity Sdn Bhd (‘M101’) in Originating Summons (‘O.S.’) No. WA-24C(ARB)-15-06/2020 to set aside the Final Award dated 12.3.2020 by the learned Arbitrator, Ir. Harbans Singh K.S (‘Award’) pursuant to subparas 37(1)(a)(iv) and 37(2)(b)(ii) of the Arbitration Act 2005 [Act 646] (‘AA 2005’) and/ or under the inherent jurisdiction of the Court (‘Setting Aside Application’);

(b) the application by Geopancar Sdn Bhd (‘GSB’) in encl. 1 in O.S. No. WA-24C(ARB)-20-6/2020 for the Award to be recognised and enforced against M101 by way of a judgment and/ or Order of the High Court pursuant to ss 38 and 39 AA 2005 and/ or the inherent jurisdiction of the Court (‘Enforcement Application’); and

(c) the application by GSB in encl. 10 in O.S. No. WA-24C(ARB)-20- 6/2020 pursuant to sub-s 37(7) AA 2005 and/ or the inherent jurisdiction of the Court for an order that costs in the sum of RM50,000.00 in respect of the Award be brought into the Court or otherwise secured pending the determination of the Setting Aside Application (‘Security for Costs Application’). [2] On the date fixed for hearing of all the above-mentioned applications via Zoom video conferencing, I had enquired as to whether GSB intends to proceed with the Security for Costs Application and Mr. Kamraj Nayagam who appeared for GSB indicated that encl. 10 can be put in abeyance if the two other applications were going to be heard on that day. [3] With the consent of the parties, the Setting Aside Application and the Enforcement Application were then heard together and after having considered the cause papers and written submissions filed as well as the oral submissions on 21.12.2020 together with the additional submissions by the parties regarding the case of Magna Prima Construction Sdn Bhd v Bina BMK Sdn Bhd and another case [2015] 11 MLJ 841, the Court found that M101 had failed to establish its case to set aside the Award under subparas 37(1)(a)(iv) and/ or 37(2)(b)(ii) AA 2005. M101’s application in O.S. No. WA-24C(ARB)-15-06/2020 was accordingly dismissed with costs of RM15,000.00 and GSB’s application in O.S. No. WA-24C(ARB)-20-06/2020 was allowed with costs of RM10,000.00. Both orders are subject to the payment of the allocatur fees. [4] Upon the pronouncement of the decision of the Court, GSB’s counsel withdrew encl. 10 and it was accordingly struck out by the Court with no order as to cost. [5] M101 is dissatisfied with the decision as aforesaid, and I now provide the full grounds of judgment for purposes of the appeal. Background Facts [6] The salient background facts were set out quite extensively in M101’s Written Submissions, the gist of which is re-produced in the ensuing paras. [7] M101 is a private company limited by shares incorporated in Malaysia and having its registered address at Lot 20-ACD, Level 5, Menara Pandan B, Persiaran MPAJ, Jalan Pandan Utama, Pandan Indah, 55100 Kuala Lumpur and its business address at Suite 16.03 & 16.04, Plaza 138, Jalan Ampang, 50450, Kuala Lumpur. [8] GSB is a private company limited by shares incorporated in Malaysia and having its registered address at 2A, Jalan SS 25/22, Taman Mayang, Petaling Jaya, 47301 Selangor and its business address at 50-1, Jalan Maarof, Bangsar Baru, 59100 Kuala Lumpur. [9] By way of the Letter of Award dated 10.2.2017 (‘LoA’) issued by Veritas Architects Sdn Bhd on behalf of M101, GSB was appointed as the contractor for the Site Clearance, Demolition Works, Piling Works, Diaphragm Wall and Plunge in Column (‘Works’) for the project known as “Cadangan Pembangunan 2 Blok Perdagangan Bercampur 81 Dan 80 Tingkat Serta Sebuah Roda Pemerhati “Ferris Wheel” Yang Mengandungi:

(a) Menara 1 Yang Terdiri Daripada:

(i) 1 Tingkat Kemudahan (Di Aras 78),

(v) 1 Tingkat Ruang Kemudahan (Di Aras 47),

(b) Menara 2 Yang Terdiri Daripada:

(i) 1 Tingkat Kemudahan (Di Aras 77),

(v) 1 Tingkat Ruang Kemudahan (Di Aras 47),

(c) Sebuah Roda Pemerhati “Ferris Wheel” (Di Aras 53), Termasuk 14 Podium Yang Mengandungi 2 Tingkat Ruang Niaga (Di Aras Tanah Dan Mezanin) Dan 12 Tingkat Tempat Letak Kereta (Di Aras 1 Hingga 12) Dengan 1 Tingkat Basemen, Di Atas Lot 1713 (Lot Lama 412), Seksyen 41, Jalan Raja Muda Abdul Aziz, Kampong Bharu, Kuala Lumpur Untuk Tetuan M101 Entity Sdn Bhd” (‘Project’) for a contract sum of RM75,800,000.00. [10] The contract is a firm price contract with the date of commencement on 22.2.2017 and a completion period of 15.5 months which means that the completion date for the whole Works is on 5.6.2018. [11] The parties agreed that the contract shall be based on the Agreement and Conditions of PAM Contract 2006 (Without Quantities) (‘PAM Contract’) subject to such amendments, amplifications and supplementary clauses. [12] Article 4(a) of the Articles of Agreement (‘AoA’) provides that Ir. Ng Pek Har of Web Structures (M) Sdn Bhd (‘Web Structures’) shall be the Structural and Civil Engineer for the Project. On 19.7.2017, Ir. Ng Pek Har as the Director of Web Structures wrote to M101 to confirm the agreement that Web Structures should release its services for the Civil, Structural and Geotechnical Engineering Services for the Project as of 19.7.2017. Web Structures was eventually replaced by Meinhardt

(M) Sdn Bhd (‘Meinhardt’). [13] A dispute arose between the parties after Meinhardt came into the picture as it had reviewed the alternative design which was previously submitted by GSB to Web Structures for comments (‘Alternative Design’) and found that there were some deficiencies in relation to the Alternative Design which did not correspond to the specifications in the Contract Documents. However, GSB was of the view that Meinhardt was trying to impose new design requirements and refused to acknowledge that there were deficiencies in the Alternative Design. [14] What followed was a series of correspondence between GSB and Meinhardt or the Architect and ultimately this led to the issuance of Architect’s Instruction (‘AI’) Nos. 012 and 013 dated 18.9.2017, AI No. 015 dated 28.9.2017, AI No. 016 dated 10.10.2017, AI No. 017 dated 12.10.2017, Engineer’s Instruction (‘EI’) No. 001 dated 28.9.2017 and EI No. 002 dated 10.10.2017 (hereinafter collectively referred to as the ‘New Instructions’). [15] Basically, the AIs require GSB to comply to the technical requirements as per Meinhardt’s letter dated 8.9.2017 and to the EIs. In Meinhardt’s letter dated 11.9.2017 to GSB, the design calculation was attached to the letter and GSB was directed to review its calculation and to address the concerns/ comments raised by Meinhardt and to substantiate GSB’s design based on the same. [16] GSB took the position that Meinhardt was imposing new design requirements and alleged that it would cause significant cost and time implications to the Contract. As such, GSB refused to comply with the New Instructions by arguing that Web Structures had previously approved the Alternative Design and thus Meinhardt and the Architect did not have the power to issue the New Instructions. [17] By way of a Notice to Arbitrate dated 24.10.2017, GSB commenced an arbitration against M101 to refer the issue as to whether or not M101’s Architect and/ or Engineer have the power to issue the New Instructions pursuant to Clauses 1.3 and 6.5(d) of the Conditions of Contract (‘CoC’). [18] In its Statement of Claim (‘SoC’), GSB claimed the following: “(1) A declaration that the Architect has no authority and/or power to issue AI 012, AI 013, AI 015, AI 016, and AI 017;

(i) AI 012;

(v) AI 017;

Whether or not the New Instructions as issued by the Respondent’s Architect and/or Engineer are validly and/or correctly issued under the PAM 2006 Standard Form of Building Contract, or else are null and void.

Whether or not Article 3 of the Articles of Agreement of the PAM 2006 Standard Form of Building Contract (“No Architect so appointed shall be entitled to disregard or overrule any certificate or opinion or decision or approval or instruction given by the preceding Architect”) is applicable to the facts of the case.

Whether or not the Engineer’s powers are only those as are delegated to him by the Architect under the Article 4 of the Articles of Agreement of the PAM 2006 Standard Form of Building Contract (“the Architect may from time to time delegate such duties and authority of the Architect to the Engineer as the Architect deems fit”) and whether the Engineer’s powers are ultimately subject to similar restrictions as those of the Architect.

Whether or not the Respondent’s Architect and/or Engineer in issuing the New Instructions was entitled to disregard or overrule any approvals previously given by the preceding Engineer, Web Structures (M) Sdn Bhd, i.e. whether or not Meinhardt (Malaysia) Sdn Bhd was bound by the approvals already given by Web Structures (M) Sdn Bhd vide emails dated 23 May 2017, 31 May 2017, and 4 July 2017 in respect of revised construction drawings for “Submission of Revised Piling Layout and Plunge-in Column Layout Plan by Geopancar Sdn Bhd” (ref. GPC/P233/139/D/YTF/WPC/NKC) and “Submission of Revised Piling Layout and Revised Rock Socket Length Designs for Liftcore Pile group” (ref. GPC/P233/171/D/YTF/WPC/NKC) (“the Claimant’s Alternative Design”).

Whether or not previous approvals already given by Web Structures (M) Sdn Bhd were superseded and/or overridden by the New Instructions.”. [20] During the Preliminary Meeting No.2 which was held on 30.8.2018, both parties agreed that the arbitral proceedings shall be conducted by way of “Documents Only” in view of the fact that it would purely involve the interpretation of the Contract. [21] The Arbitrator found, determined and declared that: “1. The Architect had no authority and/or power to issue AI Nos. 012, 013, 015, 016 and 017;

The AI Nos. 012, 013, 015, 016 and 017 issued by the Architect are null and void;

The Engineer had no authority and/or power to issue EI Nos. 001 and 002;

The EI Nos. 001 and 002 issued by the Engineer are null and void;

The Respondent shall bear and pay the Claimant’s costs in this Arbitration in the sum of Ringgit Malaysia Fifty Thousand (RM 50,000.00) only within twenty-one (21) days from the date of the Final Award; and

4.[sic] The Respondent shall pay and bear the cost of this Final Award and if the Claimant has already paid the whole or any of such costs, the Respondent shall, within twenty-one (21) days in which the Final Award is taken by either party, reimburse the Claimant accordingly.”. I. O.S. No. WA-24C(ARB)-15-06/2020: The Setting Aside Application [22] In the intitulement of the O.S., M101 had referred to subparas 37(1)(a)(iv), 37(1)(a)(v), 37(1)(b)(ii), 37(2)(b) and 37(3) of the AA 2005 whilst, based on the grounds in support of the application as enumerated in paras 5 to 9 in the O.S., it appears that M101 is invoking the grounds under subparas 37(1)(a)(iv) and (v) as well as subpara 37(1)(b)(ii) read together with subparas 37(2)(b)(i) and (ii) of the AA

[23] On the date of hearing of the Setting Aside Application and the Enforcement Application, the Court directed M101’s counsel to tabulate the grounds of challenge for purposes of clarity and to set out the parties’ respective pleadings and submissions at the arbitration proceedings and the relevant part of the Award in respect of each of the said grounds. The table was duly submitted to the Court and based on the same, it can be surmised that the Setting Aside Application was largely premised on subparas 37(1)(a)(iv) and 37(2)(b)(ii) [which must necessarily be read together with subpara 37(1)(b)(ii)] of the AA 2005. [24] The subsection and subparas of s 37 AA 2005 as aforementioned are shown below: “Application for setting aside

37.

(a) the party making the application provides proof that –

(i) … …

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

(b) the High Court finds that –

(i) …

(a) …

(b) a breach of the rules of natural justice occurred –

(i) during the arbitral proceedings; or

(a) where the award conflicts with the public policy of Malaysia for the reason of there being a breach of the rules of natural justice, it is the whole award which will be set aside and not merely a part of it;

(b) the threshold to satisfy under s 37 AA 2005 is very low as compared to that under s 42, though the courts are slow in setting aside an award, and upon proof, if successful, the court has an option, at either party’s behest, to send back the matter to the arbitral tribunal to eliminate the grounds for setting aside, as set out in sub-s 37(6) AA 2005; and

(c) the threshold to be met under subpara 37(1)(b)(ii) or sub-s 37(2) is on a balance of probabilities that there has been a breach of the rules of natural justice either during the arbitral proceedings or in connection with the making of the award. [40] The Court of Appeal also held that there is no requirement for proof of actual or real prejudice to be met where reliance is placed on subpara 37(1)(b)(ii) read with para 37(2)(b) AA 2005. As for the provision in para 21(3)(b) and s 20 AA 2005, the Court opined that although an arbitrator has the power to draw from his own knowledge and expertise, this power must be read with the arbitrator’s overarching duty to act fairly and in accordance with the rules of natural justice. The said duty is a continuous duty, consistent with the universal concept of fair play that permeates and prevails throughout the whole arbitral process. The parties must be given a reasonable opportunity to present their case or arguments, including supporting or rebuttal evidence on any live issue in the arbitration irrespective of whether the issue was brought up by the parties or the arbitrator. Further, the Court agreed with the ratio in Trustees of Rotoaira Forest Trust v Attorney General [1999] 2 NZLR 452 that, unless there is express or implied agreement to the contrary, the arbitrator is precluded from taking into account evidence or argument extraneous to the hearing without giving the parties further notice and the opportunity to respond.”. [43] The judicial approach to be applied to challenges against an award on the grounds of violation of public policy was explicated by the Federal Court in Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 2 MLJ 413. In the decision of this Court in SJIC Bina Sdn Bhd v Iskandar Regional Development Authority and another case [2020] MLJU 2366, the legal principles that can be distilled from Jan De Nul’s case was summarised as follows: “(a) the concept of public policy generally is itself a broad concept and the term “public policy” is commonly used to signify some matter which concerns public good and public interest;

(b) the term “public policy” in subpara 37(1)(b)(ii) AA 2005 covers a scope of public policy elements as used generally but in subpara 37(2)(b)(ii), the scope is more specific since it categorises a breach of the rules of natural justice which occurred in connection with the making of an award as being in conflict with the public policy of Malaysia;

(c) 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;

(d) 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;

(e) 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;

(f) the circumstances stated in sub-s 37(2) AA 2005 are not exhaustive and other appropriate situations 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 sub-s 37(2); and

(g) 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.”. [44] Further guidance when dealing with an application to set aside an award premised on a breach of the rules of natural justice pursuant to para 37(2)(b) AA 2005 can be found in another decision by the apex court, Master Mulia Sdn Bhd v. Sigur Ros Sdn Bhd [2020] 6 MLRA 51. In that case, the Court said: “[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:

(a) 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;

(b) 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;

(c) third, if the breach is relatively immaterial or was not likely to have affected the outcome, discretion will be refused;

(d) 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;

(e) fifth, where the breach is significant and might have affected the outcome, the award may be set aside;

(f) 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;

(g) seventh, the discretion given the court was intended to confer a wide discretion dependent on the nature of the breach and its impact.”. [45] In the context of an application grounded on subpara 37(1)(b)(ii) read with subpara 37(2)(b)(ii) AA 2005, 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, 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 the Award is discretionary and will not be exercised automatically in every case where the complaints are established [see para 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 (supra)]. These discretionary powers must be exercised judiciously (see para 40 in SJIC Bina’s case).”. [29] Guided by these well entrenched legal principles, I now turn to the issues which arose for consideration of the Court as submitted by the parties. 1st Ground: Whether the Award deals with a dispute not contemplated by or not falling within the terms of the submissions to arbitration when the Arbitrator decided that the New Instructions amount to a variation (subpara 37(1)(a)(iv) AA 2005) 2nd Ground: Whether the Arbitrator exceeded his jurisdiction by determining the factual issue as to whether there was variation (subpara 37(1)(a)(iv) AA 2005) [30] Both these grounds as raised by M101 shall be dealt with together as it involves an analysis of the same issue pertaining to the Arbitrator’s decision that the New Instructions amount to a variation of the Works. - M101’s Submissions [31] M101 referred to the Notice to Arbitrate, the first issue in the Agreed Issues and GSB’s SoC in submitting that the question posed to the Arbitrator was merely as to whether the Architect and/ or Engineer has the power to issue instructions pursuant to Clause 1.3 and 6.5(d) of the CoC. This, it is said, is purely a question on contractual interpretation. [32] However, it was contended that the Award deals with a dispute not contemplated by or not falling within the terms of the submissions to arbitration when the Arbitrator went further and decided that the New Instructions amounted to a variation and since the New Instructions were not issued as formal variation orders under Clauses 11.1 and 11.2 of the CoC, they were therefore invalid. [33] With regards to the 2nd Ground, M101 argued that the Arbitrator’s decision as above mentioned went beyond his jurisdiction as he himself had expressly recognised at para 109(2) of the Award that the issue of whether the New Instructions amounted to a variation order was never raised by GSB in its pleadings nor its Notice to Arbitrate. Despite the Arbitrator’s own finding that he has no jurisdiction to deal with the issue of variation in the arbitration proceedings, he nevertheless exceeded his jurisdiction as can be seen in paras 140 to 147 of the Award. [34] M101 cited the decision of the Court of Appeal in Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 6 MLJ 126 to support the submission that the issue of whether the New Instructions amounted to variation is a “new difference” and the Court is allowed to set aside the Award on the ground that the Arbitrator had decided on a “new difference” which is irrelevant to the claim. Reliance was also placed on the decision of the High Court in Magna Prima’s case (supra) for the proposition that the Arbitrator does not take jurisdiction from the submissions made by the parties but rather, his jurisdiction stems from the appointment and from the issues submitted for consideration. [35] It was emphasised that the Arbitrator’s finding regarding the issue of variation also affected his findings on the second and fifth issues in the Agreed Issues. - GSB’s Submissions [36] GSB’s overall submissions, which are applicable across all the grounds of challenge, are the common contentions that a setting aside application pursuant to s 37 AA 2005 is not akin to an appeal against the award and that GSB’s grounds in support of the Setting Aside Application are unsustainable and do not meet the threshold requirements of s 37 AA 2005. [37] GSB asserted that the Arbitrator did not determine whether the New Instructions amounted to a variation or not. Instead, para 146 of the Award shows that all he did was to decide whether there were any variation orders validly issued as the only way for the New Instructions to have been validly given was by way of a variation order. [38] Further, the Arbitrator merely found that there were new requirements over and above the approved Alternative Design previously accepted under the Contract which M101 was not obliged to comply with unless these were issued as variations. [39] In response to M101’s submission on the Arbitrator having exceeded his jurisdiction, Mr. Kamraj relied on the cases of Taman Bandar Baru Masai Sdn Bhd v Dindings Corporations Sdn Bhd [2010] 5 CLJ 83 and Kelana Erat Sdn Bhd v Niche Properties Sdn Bhd and another application [2012] 5 MLJ 809 to support his argument that the AA 2005 confers wide powers upon arbitrators to deal with matters incidental to the dispute before them and in this case, the Arbitrator had, within his powers, examined the facts and documents before him in detail before making findings which were well within his jurisdiction. [40] Learned counsel additionally submitted, on the authority of Allianz General Insurance Company v Virginia Surety Company Labuan Branch [2020] MLJU 331 that, if the Arbitrator had erred by drawing wrong inferences of fact from the oral or documentary evidence before him, that is not sufficient reason to set aside the Award. - Analysis and decision of the Court [41] I have, firstly, perused the Notice to Arbitrate and it is irrefutable that the dispute that was referred to arbitration by GSB is whether the Architect and/ or Engineer have the power to issue the New Instructions pursuant to Clauses 1.3 and 6.5(d) of the CoC (see too, para 35 of the CoC). [42] Clauses 1.3 and 6.5(d) of the CoC read as follows: “1.3 If the Contractor proposes any alternative design to that specified in the Works or if the Contract leaves any matter of design, specification or choice of materials, goods and workmanship to the Contractor, the Contractor shall ensure that such works are fit for its purpose. The copyright of the Contractor’s design and alternative design belongs to the Contractor, but the Employer shall be entitled to use the design and alternative design for the completion, maintenance, repair and future extension of the Works. The acceptance by the Architect or Consultant of the Contractor’s design and alternative design shall not relieve the Contractor of his responsibilities under the Contract. …

6.5 If the Architect finds any work, materials, goods or workmanship which is not in accordance with the Contract, the Architect shall instruct the Contractor in writing: …

6.5(d) to submit a method statement within seven

11.1(a) the addition, omission or substitution of any work;

11.1(b) the alteration of the kind or standard of any materials and goods to be used in the Works;

11.1(c) the removal from the Site of any work executed or materials and goods brought thereon by the Contractor for the purposes of the Works other than work, materials and goods which are not in accordance with the Contract; and

11.1(d) any changes to the provisions in the Contract with regards to:

11.1(d)(i) any limitation of working hours;

11.1(d)(ii) working space;

11.1(d)(iii) access to or utilisation of any specific part of the Site; and

11.1(d)(iv) the execution and completion of the work in any specific order, but shall exclude any changes intended to rectify any negligence, omission, default and/or breach of contract by the Contractor and such changes shall be executed by the Contractor entirely at his own cost.

11.2 The Architect may issue an AI ordering a Variation or sanctioning any Variation made by the Contractor. No Variation ordered by the Architect or subsequently sanctioned by him shall vitiate the Contract. Pending the valuation of the Variations, the Contractor shall carry out with due diligence and expedition all Variations so instructed.

11.3 The Architect may issue instructions in writing requiring a Variation at any time before the issuance of the Certificate of Practical Completion. …”. [45] On the other hand, M101 in its Statement of Defence contended that GSB misconstrued Meinhardt’s instructions; that these were merely to request GSB to review the PTP1 and substantiate the Alternative Design and do not amount to the imposition of any new design requirements. The correspondence which was referred to by M101 are Meinhardt’s e-mail and letter to GSB dated 24.8.2017 and 8.9.2017, respectively, with the relevant excerpts as shown below: Meinhardt’s e-mail dated 24.8.2017: “We have no adverse comment on your proposed rock socketing length of 20.137m for P30-3. For P1-7, the group effect calculation submitted is not acceptable. Within those groups there will be influence in each other, therefore, the entire core had to be considered as a group. Based on our design check and considering the entire core as a single group as shown in the attachment, the required socketing will be 20.9m. This is based on the following design parameters: …”. Meinhardt’s letter dated 8.9.2017 (a similar e-mail was sent by Meinhardt to GSB on 29.8.2017): “We refer to your letter dated 25 August 2017, we disagree on your statement that new design requirements imposed on the safety factor and rock parameters for the design of rock socketing length. The PTP, which is a 2m dia. bore pile was carried out based on bi-directional test, where the jack is placed at 0.85m above the pile toe. … … Further, the group effect calculation submitted in your alternative design does not seem to have any technical basis or substantiation. Within those groups there will be influence of one pile on another, therefore, the entire core has to be considered as a group as per relevant technical literature. We therefore direct you to kindly review the PTP results, address the above concerns / comments and substantiate your alternative piling design based on the same. …”. [46] In para 15 of the Reply to Defence, GSB pleaded that “… any technical points raised by the Respondent are irrelevant to the issue of Meinhardt’s purported power to issue instructions, which were expressly stated to not constitute variations. …”. [47] Moving on to the written submissions of the parties at the arbitration, the crux of GSB’s Initial Submissions dated 30.11.2018 and Written Submissions (2) dated 28.1.2019 is that –

(a) neither Clause 1.3 nor Clause 6.5(d) of the CoC confers power on the Architect and/ or Engineer to issue the New Instructions and that the Architect and Engineer acted ultra vires in so doing;

(b) GSB’s repeated requests for the contractual basis of the New Instructions and for the same to be formalised as variations went unheeded. Reliance was placed on the excerpt from Chow Kok Fong’s Law and Practice of Construction Contracts, Third Edition at p 183 which states, among others, that “Where the changes introduced are significant and, in particular, where the changes carry financial implications for one or both parties, it serves the interest of both parties to require the specific details of the changes to be recorded in the form of written variation orders.”. The New Instructions will cause drastic increment in the rock socket length of the bored piles, therefore the New Instructions amount to variation of works;

(c) GSB has made its position very clear from the start, namely that the design by the previous Engineer was done in the exercise of powers delegated by the Architect and the approval cannot be retracted without varying the Contract; and

(d) under the PAM Contract, variation work is ordered through an AI and the Architect, not the Engineer, is specifically empowered to order variations to the works under Clause 11 of the CoC by way of a valid Variation Order. The Architect and/ or Engineer were attempting to vary GSB’s works, not by way of variation as permitted by the Contract, but by way of some implied power. There is no contractual provision which bestows an implied power upon the Architect and/ or Engineer to vary the works. [48] Meanwhile, the gist of M101’s Written Submissions dated 30.11.2018 is that –

(a) the Architect and/ or Engineer have the power to issue the New Instructions pursuant to Clauses 1.3 and 6.5(d) CoC in view of Clause 2.1 CoC. Consequently, the Architect and/ or Engineer are not bound by the approvals by Web Structures;

(b) when Meinhardt identified the deficiency in the Alternative Design, the Architect was empowered under Clauses 1.3 and 6.5(d) CoC to issue the New Instructions to ensure that GSB complied with its responsibilities under the Contract for the deficiencies in the Alternative Design. As such, the New Instructions are validly issued under the Contract and furthermore, both parties did not dispute the validity of the procedures to issue the AI;

(c) based on Article 4 of the AoA, the delegation of duty and authority by the Architect to the Engineer must be done expressly. In this case, no documentary evidence was submitted to show that there was such express delegation of powers by the Architect to Web Structures in relation to the approval of the Alternative Design;

(d) approval by Web Structures of the Alternative Design was merely the performance of Web Structures’ duties as engineer expected of this profession;

(e) Article 3 of the AoA is not applicable as it only binds the replacement Architect regarding the approvals given by previous Architects, and not previous Engineers; and

(f) EI001, EI 002, AI 015 and AI 016 supersede the former Engineer’s approvals. However, in issuing these instructions, the Architect and/ or Engineer were entitled under Clauses 1.3 and

6.5(d) CoC to disregard or overrule any approvals previously given by the former Engineer due to the safety concern of the Alternative Design [49] It is observed that nowhere in M101’s Written Submissions did it expressly submit that the New Instructions are not variations. The word “variation” was used only in para 23 when M101 explained the contents of GSB’s letter dated 13.10.2017 wherein GSB reiterated that it requires a variation to be issued to carry out the New Instructions or alternatively, the works will be suspended pending resolution of the matter via arbitration. Presumably, GSB’s statement in para 30 of its Written Submissions (2) and the Arbitrator’s statement in para 102(1) of the Award that M101 had submitted that the New Instructions are not variations are reflective of their understanding of M101’s submissions as a whole. [50] What is more pertinent is the fact that in paras 7 to 19 of M101’s Submissions In Reply dated 28.1.2019, it raised a Preliminary Objection (‘PO’) and contended that the Arbitral Tribunal cannot consider GSB’s submissions which are based on the assumption that the New Instructions amount to a Variation Order as the matter is beyond the jurisdiction of the Arbitrator. It was further submitted that –

(a) it would be a breach of natural justice and unfair for the Arbitrator to decide this issue that was belatedly included by GSB as M101 did not have the opportunity to take the issue into consideration in the preparation of evidence and in the initial submissions;

(b) it would not be possible for the Arbitral Tribunal to determine whether the New Instructions amount to a variation based on the limited documentary evidence before it; and

(c) in order to determine whether the New Instructions amount to a variation, a key issue which has to be decided first is whether the Alternative Design is fit for purpose, entitling GSB to a variation or whether the changes intended to rectify any negligence, omission, default and/ or breach of contract by GSB and thus, disentitling GSB to a variation. These matters can only be decided at an arbitration with the benefit of expert witnesses and reports (see too, para 105(1) to (6) of the Award). [51] On 14.2.2019, the Arbitral Tribunal issued a “List of Queries on Submissions” comprising of nine questions (‘Tribunal’s 9 Questions’). This was followed by a “List of Queries on Submissions: Jurisdictional Challenge” dated 17.2.2019 wherein the Arbitrator referred to M101’s PO and invited GSB to make the relevant submissions in reply “to enable the tribunal to rule on the status/ tenability of the said jurisdictional challenge …”. [52] In GSB’s Reply to both List of Queries dated 25.2.2019, it maintained that: “It is common ground between the parties that the purported instructions given by the Architect and/or Engineer do not amount to variation. As such, the issue of whether the purported instructions amount to variation does not arise. For the avoidance of doubt, the Claimant’s submission is that the only way in which the purported instructions could validly have been given was by way of variation: once it is accepted that they were not so given, it follows that they were not validly given. This is a point of submission which can be taken at any time and which does not in any way change the terms of reference.” (emphasis added). [53] M101’s Response to the List of Queries dated 25.2.2019 is essentially the contentions in respect of the Tribunal’s 9 Questions. [54] During the hearing on 1.3.2019, the Arbitrator sought for further clarification of the parties’ respective submissions and requested that the parties attempt to agree in their responses as much as possible (see subpara 11(d) of M101’s Affidavit In Reply (‘AIR’), encl. 9). [55] In submitting on the issue of “Rules of Interpretations on Documents”, GSB in its Clarification Submission dated 8.3.2019, responded to M101’s rhetoric question as to what would be the remedy for the employer who finds the design to be constructed is defective by answering that it would be to order a variation. [56] GSB went on to reiterate its earlier submission that it was common ground between the parties that no variation was ordered and that the New Instructions do not amount to a variation. It was further submitted that M101’s suggested interpretation was commercially illogical and if accepted, it would mean that the Architect or the Engineer, could, at any stage of the works, including after the design has been approved and construction works have started as is the scenario in the instant case, purport to withdraw the approval and to force the contractor to produce an alternative design at the contractor’s own expense. GSB asserted that “Such an interpretation would deprive the contractor of his contractual rights to carry out the work in the manner which was previously approved, and would make the terms of the contract essentially variable at will, by a mechanism entirely distinct from that already provided for the variation of works.”. [57] M101’s Further Response To List of Queries dated 5.4.2019 (and submitted on 8.4.2019, see para 67 of M101’s Written Submissions) again contains the answers to the Tribunal’s 9 Questions. In para 107 of the Award, the Arbitrator noted that, despite having the opportunity to reply to GSB’s response as quoted in para 52 above, M101 chose not to rebut or comment to the same and it did not state whether it was maintaining the earlier position in its Submissions In Reply. [58] Although in para 12 of the AIR, M101 averred that its Further Response dated 5.4.2019 was not intended to be a response to GSB’s submission dated 25.2.2019 and in para 71 of the Written Submissions, it was submitted that the Further Response was solely to submit further responses as requested by the Arbitrator during the hearing on 1.3.2019, there is no valid reason for this Court to doubt the Arbitrator’s statement in the Award that M101 had indeed been given the opportunity to response to GSB’s earlier submission. Looking at the sequence of events, this opportunity must have been given at the hearing on 1.3.2019. [59] In these circumstances, the Arbitrator then deemed that M101 has no further objections to GSB’s explanation on the issue. Nevertheless, the Arbitrator was quick to acknowledge that, in the event he is wrong in coming to the said conclusion, he “must endeavor to examine both parties’ arguments on this issue which impacts and questions the limits of the Tribunal’s jurisdiction” as raised by M101. [60] Having done so, the following are the Tribunals’ findings and conclusions: “(109) From the foregoing, it is clear that:

The Tribunal is bound by the “four corners” of the pleadings and as such, its jurisdiction is limited to the issues raised in the parties’ pleadings;

As rightly pointed out by the Respondent, the issue of whether Architect’s and/or Engineer’s New Instructions amounted to a Variation Order and therefore rendered the same invalid was never raised by the Claimant in its pleadings nor its Notice to Arbitration;

This being an “un-pleaded” issue, it therefore, prima facie, fell outside the jurisdiction of the arbitrator Tribunal to decide in this arbitration;

Notwithstanding the above, the parties are permitted to raise “un-pleaded” issues if there is an agreement between them to do so;

Since the parties (and in particular, the Respondent) have not agreed to permit “un-pleaded” issues to be raised, the Tribunal is strictly bound by the “four corners” of the pleadings as adverted to in Sigur Ros’ case. This is also to ensure that I do not breach any of the rules of national justice and I abide by the relevant provisions of the Arbitration Act 2005 (Rev. 2011), in particular, Section 18; and

It is therefore not necessary for me to address the other contentions raised by the Respondent, in particular, Item 6 of para (105) above which in any case I find not to be true and/appliable based on the facts of the case. Anyway, it has no impact on my determinations as above with regard to the extent of my jurisdiction.

(a) there was never any express delegation of duties and authorities as stipulated in Article 4 AoA from the Architect to the 1st Engineer and/ or the New/ Replacement Engineer;

(b) there was never any change or replacement of the Architect on record; and

(c) procedurally, the 1st Engineer had been validly replaced by the New/ Replacement Engineer pursuant to Article 4 AoA. [83] The Arbitrator then opined that the only issue in contention was whether the last sentence of Article 3 AoA as to the contractually binding effect of the Architect’s previous certificates, decisions, approvals or instructions applied equally to the Engineer in the absence of express wordings to the same effect in Article 4 AoA. [84] In finding the answer to this poser, the Arbitrator examined the extent and purpose of the last sentence of Article 3 AoA and said in para 175 of the Award (with my added emphasis) as follows: “Looking at the Claimant's submissions in the light of the Respondent's above contentions, I agree that the latter do cast doubt on the Claimant’s use of the said authority to buttress its arguments. But notwithstanding this, it is trite that:

As rightly pointed out in the authority cited by the Respondent in para (171) above, there are valid reasons in practice to prohibit a New/Replacement Architect from disregarding/overruling the decisions, opinions, certificates or approvals granted by the previous/1st Architect. These are meant primarily to protect the Contractor from abuses of power especially for the Employer's benefit exercised through the New/Replacement Architect. These can then be expressly stipulated in the Contract; Article 3 of the COG being a notable example;

This does not mean that either the original Architect and/or the New/Replacement Architect cannot in any situation whatsoever, circumvent the said express prohibitions. To give business efficacy, it is nevertheless, implied that this can be done but on reasonable grounds which may include safety reasons, to prevent the breach of any laws/regulations, etc. and even to the extent that the original Architect if still in post would have the express/implied authority to do so. This has been conceded by the Respondent when it agreed that the New/Replacement Engineer was permitted to withdraw the “approval” granted by the 1st Engineer in relation to the Alternative Design due to concerns such as safety and design. If such concerns permit the Engineer in the absence of express provisions to the contrary to disregard/overrule previously granted “approvals”, etc. these should apply equally also to the Architect. In essence therefore, the blanket prohibition imposed on a New/Replacement Architect is not absolute but can be lifted in limited circumstances based on the particular facts and reasonable grounds; this being reinforced in the above-mentioned extract from the Building Law Encyclopedia cited by the Claimant; and …”. [85] Based on the above quoted passage from the Award, M101 submitted that the Arbitrator had found that the Architect and/ or New/ Replacement Architect can circumvent the prohibition on the Architect overruling any certificate, opinion, decision, approval or instruction given by the preceding Architect under Article 3 of the AoA on reasonable grounds which may include safety reasons. It is in this context that the term “Safety Exception” was used by M101. - M101’s Submissions [86] M101’s complaint was that the issue on whether the incoming Engineer in this case could have overruled the previous Engineer’s approval on safety grounds (the “Safety Exception”) was never intended to be determined in the arbitration proceedings. [87] It was additionally argued that since the Arbitrator has accepted that there is a Safety Exception which, if applicable, may lift up the prohibition under Article 3 of the AoA, he nevertheless decided that M101's Architect and New/ Replacement Engineer was bound by the approvals of the 1st. Engineer (Web Structures) in respect of the Alternative Design and that the New Instructions did not, in effect, overrule the previous approvals given by the 1st. Engineer, thus implying that the Safety Exception does not arise or apply in the arbitration. [88] According to M101, this matter involves a question of fact, to be determined with the benefit of witness evidence, in particular that of experts and tested in cross-examination and M101 would never have agreed for the issue to be conducted on a Documents Only basis if it had been alerted to the fact that such issue was to be determined in the arbitration proceedings. - GSB’s Submissions [89] In submitting for GSB, Mr. Kamraj emphasised that the Arbitrator did not, in any part of the Award, determine that “the Safety Exception does not apply in this arbitration”. To support his submission, the learned counsel referred to subpara 16(b) of M101’s AIR (encl. 9) wherein M101 had affirmed that “Having recognised that there is a Safety Exception where the Architect may on overruling in paragraph 175(2) of the Final Award …, the Arbitrator has implied that the Safety Exception does not apply in this arbitration when he had stated at paragraph 209 … that: “(209) From the foregoing and based on the totality of the Written Submissions, clarifications, authorities and contemporaneous documents, I find that the Respondent’s Architect and New/Replacement Engineer bound by the approvals of the 1st Engineer (Web Structure) and that the New Instructions could not under the Contract and hence did not, in effect overrule the previous approvals given by the 1st Engineer (Web Structure) in respect of the Claimant’s Alternative Design.””. [90] Based on the above excerpt, it was argued that M101 has acknowledged that there is no express finding by the Arbitrator that the Safety Exception does not apply in this arbitration, and that it was only by implication. [91] Furthermore, GSB’s counsel clarified that what the Arbitrator did was simply to determine that Article 3 of the AoA, which provides a prohibition on the Architect from disregarding and/ or overruling any certificate, opinion, decision, approval or instruction given by the preceding Architect, is applicable to the Engineer under Article 4 of the AoA. - Analysis and decision of the Court [92] Factually, GSB in its pleadings has always questioned the source of power in the issuance of the AIs and EIs, and more precisely, in paras 23 and 24 of the SoC, GSB had referred to Articles 3 and 4 of the AoA in taking the position that although Article 4 does not contain a similar provision as in Article 3, the Engineer should still be bound by the decisions of a previous Engineer and that the Engineer’s powers are ultimately subject to similar restrictions as those of the Architect. GSB reasoned that the Engineer’s powers are only those as are delegated to him by the Architect under the PAM Contract. [93] In the Statement of Defence, M101 alleged that GSB is misconceived in its arguments premised on Articles 3 and 4 of the AoA and highlighted the purported deficiencies in relation to the design parameters of the Alternative Design. To this, GSB responded that there were no deficiencies in the design as asserted by M101 as M101 had sought bids from replacement contractors to perform the same works that GSB had been performing, based on the same drawings which M101 alleged were defective (see para 10 of the Reply To Defence). [94] The parties’ written submissions in the arbitration proceedings covered mainly their respective arguments for or against a particular interpretation of Articles 3 and 4 of the AoA. In fact, one of the Tribunals’ 9 Questions was to request for the rules of construction that the parties have premised their respective arguments as the Tribunal recognised that the determination of the various issues in dispute invariably involves the construction or interpretation of the relevant express provisions in the Contract. Later, in the Award, it is evident that the Arbitrator had addressed his mind to the literal rule and purposive approach to statutory interpretation (see paras 176 to 186) before concluding that “… the application for the literal rule does not lead to a result that fairly reflects the intentions of the parties as expressed in the “four corners” of the Contract but results in inconsistency and absurdity. Applying the purposive test to give business efficacy, it can be implied that Articles 3 and 4 should share similar restrictions and prohibitions on the Architect and Engineer, especially so that the intended safeguards against possible abuse by the Architect could also be implemented for the other contract administrators, in particular, the Engineer in this case. Therefore, the prohibitions contained in Article 3, are especially applicable to Article 4 and to the facts of this case, not by express stipulations but by necessary implication.” in para 187 of the Award. [95] From my examination of the pleadings and written submissions before the Tribunal, the fact or issue as to whether the Safety Exception applied was never explicitly pleaded or raised. This was also clearly not one of the Agreed Issues. [96] Further, from my reading of the “Tribunal’s Findings” on the third issue in the Agreed Issues (paras 168 to 189 of the Award), the Arbitrator had, in the midst of his analysis, expressed the view that the prohibition on a New/ Replacement Architect from disregarding or overruling the decisions, opinions, certificates or approvals granted by the previous Architect is not absolute but can be lifted on reasonable grounds which include concerns as to safety and design. Such concerns were mentioned in para 175(2) of the Award by way of illustration. [97] I am unable to find anywhere in the Award that the Arbitrator had explicitly determined, as a matter of fact, the issue as to whether the Safety Exception applied. Based on M101’s submission in this Court, its stance is indeed that there was no express decision to that effect, however M101 contended that the Arbitrator’s unreserved determination that the New Instructions could not and did not overrule previous approvals, implies that the Safety Exception is not applicable. [98] It is my considered view that the affidavit evidence before this Court does not justify a finding that the Tribunal had impliedly decided in the manner as advocated by M101 and even if the Court is prepared to make a finding that the Tribunal had, by implication, concluded that the Safety Exception does not apply in the circumstances of this case, the Court is not inclined to set aside the Award based on implied grounds. [99] Ultimately, the Arbitrator had answered the third issue in the Agreed Issue in the affirmative in that the prohibition on the Architect overruling any certificate, opinion, decision, approval or instruction given by the preceding Architect under Article 3 AoA is applicable on the facts of the case also to the Engineer, even though there is no corresponding express prohibition under Article 4 AoA applicable to the Engineer, essentially as a matter of necessary implication to prevent possible abuses by other contract administrators such as the Engineer. This finding and conclusion was well within the jurisdiction of the Arbitrator and the terms of the submission to arbitration. [100] Therefore, the Court finds and holds that M101 has not established the 4th Ground of challenge to set aside the Award. 5th Ground: Whether the Award is in conflict with the public policy of Malaysia where a breach of natural justice occurred in connection with the making of the Award when the Arbitrator failed to give the parties a reasonable opportunity to lead evidence and make submissions that the Safety Exception did not apply (subparas 37(1)(b)(ii) and 37(2)(b)(ii) AA 2005) - M101’s Submissions [101] M101’s contentions pertaining to this ground follows through from the submission in respect of the 4th Ground in that, the Arbitrator, having decided that the Safety Exception was a relevant consideration in deciding whether the previous instructions could be overruled or superseded, it is thus imperative for the Arbitrator to allow parties to submit on this issue before making a final decision, especially considering that M101 had specifically pleaded in the Statement of Defence and extensively submitted in the Written Submissions dated 30.11.2018 that GSB’s alternative design is not sufficient to support the 80-storey towers. [102] In addition to not inviting the parties to address the Safety Exception, M101 argued that the Arbitrator had further deprived its submissions on the safety concern by disregarding the expert report by Ir. Dr. Wong Fook Keong dated February 2018 (‘Expert’s Report’). M101 maintained that the Expert Report was included at the earliest possible opportunity in the arbitration i.e. as one of the Appendices in the Statement of Defence and hence, to M101, it was most unfair for the Arbitrator to deem the Expert Report as an afterthought as the purpose of the Expert Report is to investigate Meinhardt’s concerns, which are of paramount importance as it is a safety issue. The mere fact that the Expert Report was produced after the events does not render it completely irrelevant. - GSB’s Submissions [103] GSB contended that M101’s assertion about not being given reasonable opportunity to lead expert evidence and/ or to make submissions on the Safety Exception is irrelevant since M101 itself had accepted that the Safety Exception was never an issue to be determined in the arbitration proceedings. - Analysis and decision of the Court [104] In view of the finding of this Court in respect of the 4th Ground as explained above, it necessarily follows that the issue of breach of the rules of natural justice in connection with the making of the Award simply does not arise as the Safety Exception was not one of the Agreed Issues and the Arbitrator did not make any express or implied finding that the Safety Exception is inapplicable in the instant case. [105] As to the point of argument on the Expert Report, it is observed that the Expert Report is expressly mentioned in subpara 8(e) of M101’s Statement of Defence and appended thereto as Appendix R4. M101 pleaded that the Expert Report corroborates Meinhardt’s findings and deficiencies in the Alternative Design were found. [106] GSB refuted M101’s pleadings as above stated in para 11 of the Reply To Defence wherein GSB claimed that the contents of the Expert Report are irrelevant. GSB also took issue with the date of the Expert Report because the parties have been in dispute since August 2017 and such report should have been commissioned as soon as the differences over the design arose. GSB pleaded that the irresistible conclusion that must be drawn from the fact that the Expert Report was prepared in February 2018 is that from August 2017, M101 was issuing instructions for GSB to re-substantiate, revise and resubmit the alternative design without basis. [107] Based on para 132 of the Award, the Arbitrator had considered the juxtaposed positions of the parties on the issue of the Expert Report and he has chosen to agree with GSB. M101’s grievance effectively relates to the Arbitrator’s decision whereas it is fundamental legal principle that this Court, in hearing the Setting Aside Application, is not to delve into the merits of the Award. [108] Hence, the 5th Ground of challenge must similarly be rejected as being devoid of any merits whatsoever. - Pronouncement [109] Premised on the reasons as elaborated in the preceding part of this judgment, M101 has failed to establish its case to set aside the Award under subparas 37(1)(a)(iv) and 37(2)(b)(ii) read together with subpara 37(1)(b)(ii) of the AA 2005 and therefore, the Setting Aside Application was duly dismissed with costs. II. O.S. No. WA-24C(ARB)-20-06/2020: The Enforcement Application [110] In the O.S., GSB had applied for the Award to be recognised and enforced against M101 by way of a judgment and/ or Order of this Court pursuant to ss 38 and 39 AA 2005. [111] M101 resisted the Enforcement Application largely on the ground that it has filed the Setting Aside Application. No averment was made by M101 as to whether GSB had fulfilled the requirements under paras 38(2)(a) and (b) AA 2005 in terms of the production of the duly authenticated original Award and arbitration agreement or duly certified copies of the same (see M101’s AIR in encl. 5). [112] Following from the decision to dismiss the Setting Aside Application and there being no other issue raised by M101 as to why the recognition and enforcement of the Award should be refused by this Court, the Enforcement Application was accordingly allowed with costs. Costs [113] On a final note, Mr. Kamraj prayed for costs of RM50,000.00 for the Setting Aside Application and RM10,000.00 for the Enforcement Application whilst Mr. Rajendra opined that RM20,000.00 for both applications would suffice. The Court, having considered the learned counsels’ submissions and the relevant factors to be taken into account (see O. 59, r. 16 of the Rules of Court 2012), awarded costs of RM15,000.00 for the Setting Aside Application and RM10,000.00 for the Enforcement Application with both orders being made subject to the payment of the allocatur fees. Dated: 20 May 2022 (ALIZA SULAIMAN) Judge Construction Court 2 High Court Kuala Lumpur Counsels/Solicitors: For the Applicant in O.S No. WA-24C(ARB)-15-06/2020 and the Defendant in O.S. No. WA-24C(ARB)-20-06/2020: Rajendra Navaratnam (Allen Cheng Peng Han and Brandon Shen Shi Han with him) Messrs. Azman Davidson & Co Advocates & Solicitors Suite 13.03, 13th Floor Menara Tan & Tan 207Jalan Tun Razak 50400 Kuala Lumpur For the Respondent in O.S. No. WA-24C(ARB)-15-06/2020 and the Plaintiff in O.S. No. WA-24C(ARB)-20-06/2020: Kamraj Nayagam (Maya Gayathri Devaruban with him) Messrs. Mah-Kamariyah & Philip Koh Advocates & Solicitors 3A07, Block B, Phileo Damansara II 15, Jalan 16/11, Off Jalan Damansara 46350 Petaling Jaya Selangor Cases referred to: Agrovenus LLP v Pacific Inter-Link Sdn Bhd and another appeal [2014] 3 MLJ 648 Allianz General Insurance Company v Virginia Surety Company Labuan Branch [2020] MLJU 331 Antara Steel Mills Sdn Bhd v. CIMB Insurance Brokers Sdn Bhd [2015] 5 CLJ 1018 Jan De Nul (M) & Anor v Vincent Tan Chee Yioun & Anor [2019] 2 MLJ 413 Kelana Erat Sdn Bhd v Niche Properties Sdn Bhd and another application [2012] 5 MLJ 809 Kerajaan Malaysia v Perwira Bintang Holdings Sdn Bhd [2015] 6 MLJ 126 Magna Prima Construction Sdn Bhd v Bina BMK Sdn Bhd and another case [2015] 11 MLJ 841 Master Mulia Sdn Bhd v. Sigur Rus Sdn Bhd [2020] 6 MLRA 51 Pancaran Prima Sdn Bhd v. Iswarabena Sdn Bhd & Another Appeal [2020] 9 CLJ 466 Perwira Bintang Holdings Sdn Bhd v Kerajaan Malaysia [2014] 11 MLJ 561 Petronas Penapisan (Melaka) Sdn Bhd v Ahmani Sdn Bhd [2016] 2 MLJ 697 Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd [2016] 5 MLJ 417 Propel Synergy Sdn Bhd v Vistasik Sdn Bhd and another case [2022] MLJU 824 Sigur Ros Sdn Bhd v Master Mulia Sdn Bhd [2018] 3 MLJ 608 Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] SGCA 28; [2007] 3 SLR 86 Taman Bandar Baru Masai Sdn Bhd v Dindings Corporations Sdn Bhd [2009] MLJU 793; [2010] 5 CLJ 83 Tune Talk Sdn Bhd v Padda Gurtaj Singh [2020] 3 MLJ 184 Zenbay Sdn Bhd v Yong Choo Kui Shipyard Sdn. Bhd. [2015] MLJU 907 Legislation referred to: Arbitration Act 2005, ss 8, 35, 36, 37, 38 & 39 Rules of Court 2012, O. 59, r.