For the purpose of this section, "data message" means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange, electronic mail, telegram, telex or telecopy.” [17] Essentially, the applicant’s counsel is relying on s. 9 (4)(b) of the Act (which the wording is similar to the previous s.9(4)(c) of the Act). The applicant’s counsel submits that there was exchange of statement of claim S/N 8wpWneKifkykGFXhfH2N7w Page 13 of 21 and defence in which the existence of an agreement was alleged by the applicant and it was not denied by the respondents. [18] This Court is again utterly perplexed with the applicant’s counsel’s submission that the applicant has satisfied s. 9(4)(b) of the Act (or the previous s.9(4)(c) of the Act). Section 9(4)(b) of the Act applies in the context of an arbitral proceeding in which the claimant has issued its statement of claim and the respondent has replied to the claimant’s statement of claim by submitting a defence. [19] The terms “statement of claim” and “defence” in s. 9(4)(b) of the Act has to be read and understood in the context of s. 25 of the Act where it refers to both the documents (the pleadings) that are submitted during the arbitral proceeding. This is where the parties exchange the statement of claim and the defence, and one party alleges the existence of an arbitration agreement and the other party does not deny its existence. By virtue of the pleaded fact vis-à-vis the existence of an arbitration agreement and the non-denial of the pleaded fact, the parties have agreed that there is an arbitration agreement. In the present case, the facts are nothing close to what is envisaged by s.9(4)(b) of the Act. S/N 8wpWneKifkykGFXhfH2N7w Page 14 of 21 [20] The applicant’s counsel also refers to s. 5 of the Act which states: “This Act shall apply to any arbitration to which the Federal Government or the Government of any component state of Malaysia is a party.” [Note: there is no amendment to s. 5 of the Act] [21] The applicant’s counsel submits as follows: “11. The Respondent in it’s [sic] capacity as the Federal Government is bound by the Act and Section 5 makes any reference to any arbitration binding. This makes Section 5 a legislative consent to arbitrate. It is a guarantee by the Respondent to partake in any arbitration which they are a party to.” [22] Section 5 of the Act is a general provision that confirms that in the event the Federal Government or the Government of any component state of Malaysia is a party to an arbitration with a private entity, the Act shall be applicable to that arbitration. This provision has to be read in the context of the Act in that there must first be a valid and enforceable arbitration agreement involving the Federal Government or State S/N 8wpWneKifkykGFXhfH2N7w Page 15 of 21 Government. Section 5 does not make a reference to arbitration binding on the Government in the absence of a valid and enforceable arbitration agreement. [23] As there is no arbitration agreement between the applicant and the respondents, the applicant has failed to comply with s. 38(2)(b) of the Act which requires the applicant to produce the original arbitration agreement or duly certified copy of the agreement. For this reason alone, the applicant’s Originating Summons ought to be dismissed. [24] This Court is fully aware that an arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement (see s. 18(1) of the Act). However, this Court is in agreement with the respondents’ counsel’s submission in that due to the absence of an arbitration agreement, the proceeding brought by the applicant before the MATE is invalid and devoid of jurisdiction from the onset. The MATE could not arbitrarily and/or on its own volition seize jurisdiction to arbitrate a matter in the absence of a valid and enforceable arbitration agreement whether one that is concluded between the parties before or after a dispute has arisen. S/N 8wpWneKifkykGFXhfH2N7w Page 16 of 21 [25] This Court notes that there are several reported cases involving the awards made by the MATE which is indeed alarming. The manner in which the MATE has carried itself is seriously questionable (see AmFinance Berhad v Jantan Che Mat & Dato’ Dr (Munsyi) Muslim Yacob (selaku Presiden Establishmen Tribunal Timbangtara Malaysia [MATE] [2011] 1 LNS 1716, HC; Pendaftaran Pertubuhan Malaysia v Establismen Tribunal Timbangtara Malaysia & Ors [2011] 6 CLJ 684, HC; Danial Adham B Saifulbahri & others [2022] 1 LNS 1513, HC. The MATE made startling awards in all three cases which were set aside by the respective High Courts). [26] In recent years, settling disputes by way of arbitration has become one of the most popular alternative dispute resolution mechanisms. The Act recognises arbitration awards made in arbitral proceedings. An arbitration award is capable to be recognised as binding and to be enforced as a judgment of the court of law. Therefore, any entity that provides arbitral services has to adhere strictly to the law provided under the Act. An entity should not act on its own volition and take on every dispute before it without limitation. Otherwise, it will be an abuse of the dispute resolution as a backdoor to enforce an award which did not go through proper due process. Recognising and enforcing such a S/N 8wpWneKifkykGFXhfH2N7w Page 17 of 21 questionable award through s. 38(1) of the Act is clearly an abuse of the court process. The Scope of s. 38 of the Act [27] The respondents’ counsel’s second objection is that the applicant’s Originating Summons also sought this Court to “add to and vary” the Award, in particular reference to paragraphs 7(a), (b) and (c) of the Award. [28] Paragraphs 7(a), (b) and (c) of the Award refer to the general, exemplary and special damages which were awarded by the arbitrator. The Award did not specify the portions the respondents are to be liable or whether they are jointly and/or severally liable for the awarded damages. The applicant, therefore, seeks this Court to decide on the allocation of the portions of the damages the respondents are to be liable to pay to the applicant. The applicant’s counsel relies on Order 69 rule 4(a)(ii) of the Rules of Court 2012 (hereafter ‘RoC’) to state that the applicant may seek this Court to determine the portion of liability of the respondents. [29] Order 69 rule 4(a)(ii) of the RoC states: “any question on which the applicant seeks the decision of the Court”. The applicant’s Originating S/N 8wpWneKifkykGFXhfH2N7w Page 18 of 21 Summons was filed pursuant to s. 38 of the Act (see Order 69 rule 2(k) of the RoC). Therefore, the relevant rule is Order 69 rule 8 of the RoC. [30] The question the applicant may seek a decision of this Court must be within the ambit of the court to make a ruling. However, the prayers sought by the applicant are not questions for a decision of this Court. They are rather prayers seeking for an order of the Court to improve the Award or to add-on what the Award has failed to address. This is clearly beyond the scope of this Court in an application under s. 38 of the Act and Order 69 rules 4 and 8 of the RoC. [31] Likewise, the prayers pertaining to “tempoh bersara wajib Pemohon selaras Perkara 7 (d) Award berkenaan ditentukan oleh Mahkamah” and “Pengiraan faedah pencen Pemohon selaras Perkara 7 (e) Award berkenaan ditentukan oleh Mahkamah” are outside the ambit of the court’s power to determine in an application under s. 38(1) of the Act to the Court. [32] The Award by MATE clearly is incomplete and falls short of dealing with the questions raised in the Originating Summons’ prayers. The applicant could not come to this Court to seek this Court to improve the Award. This is clearly an abuse of the process of the court. S/N 8wpWneKifkykGFXhfH2N7w Page 19 of 21 [33] Based on the objections raised by the respondents’ counsel against the applicant’s Originating Summons, this Court is overwhelming satisfied that the applicant’s application has failed to comply with s. 38(2)(b) of the Act and read together with Order 69 rule 8(3) of the RoC which in both instances the production and exhibition of an arbitration agreement is an essential part of the procedural requirement for the recognition and enforcement of an arbitration award. [34] In the absence of an arbitration agreement, therefore, it is not necessary for this Court to dwell into the grounds for refusing recognition or enforcement of an arbitration award under s. 39(1) of the Act. [35] On a final note, this Court finds many parts of the applicant’s counsel’s submissions could not be sustained because from the onset the applicant’s counsel has misunderstood the application of s. 9(4)(b) of the Act (or s. 9(4)(c) which the applicant’s counsel wrongly referred to). As a result of the failure to appreciate the application of s. 9(4)(b) of the Act, the applicant’s counsel’s submission went off course. S/N 8wpWneKifkykGFXhfH2N7w Page 20 of 21 Conclusion [36] For the reasons stated above, this Court dismissed the applicant’s Originating Summons. This Court ordered that the applicant to pay costs of RM10,000.00 (subject to allocator fees) to the respondents. Sgd ……………………………………….. (CHOO KAH SING) JUDGE HIGH COURT SHAH ALAM S/N 8wpWneKifkykGFXhfH2N7w Page 21 of 21 Applicant’s counsel: Lingswaran Singh Tetuan Lingswaran Singh & Associate Respondents’ counsel: Mohd Faisal Md Noor Senior Federal Counsel Jabatan Peguam Negara S/N 8wpWneKifkykGFXhfH2N7w