Padda Gurtaj Singh v Dr. Christopher To (WA-24NCC(ARB)-12-05/2023)

Celcom Axiata Berhad (1st Respondent);

Christopher Mark Anthony Lankester (2nd Respondent); 3. East Pacific Capital Pte Ltd (3rd Respondent); 4. Jason Jonathan Lo (4th Respondent); 5. Tune Strategic Investments Limited (5th Respondent); 6. Kalimullah Bin Masheerul Hassan (6th Respondent); 7. Lim Kian Onn (7th Respondent); 8. Padda Gurtaj Singh (8th Respondent); 9. Tune Group Sdn Bhd (9th Respondent); and 10. Celcom Mobile Sdn Bhd (10th Respondent); And In the matter of a Summary Determination (no jurisdiction and lack of locus standi) delivered by the Arbitral Tribunal (Dr Christopher To) on 11.4.2023 (and received on 11.4.2023); And In the matter of Section 18 of the Arbitration Act 2005 (particularly, Sections 18(5), 18(7) and 18(8) thereof); And In the inherent jurisdiction of this Honourable Court. BETWEEN PADDA GURTAJ SINGH [Passport No.:K3640770E] …APPELLANT

1.

CHRISTOPHER MARK ANTHONY LANKESTER [IC NO: 650805-10-5243]

KALIMULLAH BIN MASHEERUL HASSAN [IC NO: 580315-07-5319]

LIM KIAN ONN [IC NO:561012-05-5691]

TUNE GROUP SDN. BHD. [Company No.: 200701040836 (798868-P) …RESPONDENTS GROUNDS OF JUDGMENT Introduction [1] The Appellant and the 1st to 5th Respondents are parties to an arbitration, which is registered with the Asian International Arbitration Centre (AIAC) as Arbitration No. AIAC/INT/ADM-1001- 2021 (‘the 1001 Arbitration’). [2] After the exchange of pleadings, the Appellant applied for a Summary Determination Request (‘SDR’) pursuant to Rule 19 of the AIAC Rules 2021 to dismiss the Respondents’ respective Statement of Defences and Counterclaims on the grounds the Arbitration Tribunal had no jurisdiction over additional disputes unilaterally added on by the 1st Respondent. The additional disputes effectively brought in the 2nd to the 5th Respondents. [3] The Arbitral Tribunal dismissed the Appellant’s SDR. [4] The Arbitral Tribunal’s decision in respect of its jurisdiction is a matter appealable to the High Court pursuant to s.18(8) of the Arbitration Act 2005 (‘AA 2005’). [5] I heard and considered the appeal pursuant to s.18(8) of the AA 2005 and allowed the appeal. In essence, I agreed with the Appellant that the Arbitral Tribunal has no jurisdiction to consider disputes that were not directed to be heard (by the High Court when directing the matter to be referred to Arbitration) as it was outside of the original dispute between the Appellant and 1st Respondent. Decision of the High Court not appealable [6] The decision of a High Court in determining an appeal under s.18(8) is final and binding on parties. [7] For completeness, s.18 of the AA 2005 is reproduced with emphasis on subsections 18(8) and 18(10).

Competence of arbitral tribunal to rule on its jurisdiction

The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

For the purposes of subsection (1) - a) an arbitration clause which forms part of an agreement shall be treated as an agreement independent of the other terms of the agreement; and b) a decision by the arbitral tribunal that the agreement is null and void shall not ipso jure entail the invalidity of the arbitration clause.

A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence.

A party is not precluded from raising a plea under subsection (3) by reason of that party having appointed or participated in the appointment of the arbitrator.

A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.

Notwithstanding subsections (3) and (5), the arbitral tribunal may admit such plea if it considers the delay justified.

The arbitral tribunal may rule on a plea referred to in subsection (3) or (5), either as a preliminary question or in an award on the merits.

Where the arbitral tribunal rules on such a plea as a preliminary question that it has jurisdiction, any party may, within thirty days after having received notice of that ruling appeal to the High Court to decide the matter.

While an appeal is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.

No appeal shall lie against the decision of the High Court under subsection (8). Findings [8] A plain reading of s.18(10) would lead to an interpretation that the decision of this Court made pursuant to s.18(8) is non-appealable. [9] Accordingly, the Notice of Appeal filed by the 2nd to 5th Respondents is incompetent. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 3rd April 2024 Counsel Tang Choon Hao for the Appellant Messrs. Fahri, Azzat & Co, Selangor Foo Joon Liang and Tasha Lim for the 1st Respondent. Messrs. Logan Sabapathy & Co, Kuala Lumpur Vivian Oh for the 2nd to 5th Respondents. Messrs. Gan Partnership, Kuala Lumpur