Poratha E & C Sdn. Bhd. v Petrofac Engineering Services (Malaysia) Sdn. Bhd (WA-24C-124-07/2025)

there has been a denial of natural justice;

the Adjudicator failed to act independently or impartially; and

the Adjudicator acted in excess of jurisdiction. [3] All three grounds are said to arise from a single factual matrix: the Adjudicator, at the time of his appointment, was acting as lead counsel for Sinopec Engineering (Group) Co Ltd and Sinopec Engineering Group Malaysia Sdn Bhd in Kuala Lumpur High Court Originating Summons No. WA-24C(ARB)-38-06/2024 ("OS 38"), in which the opposing counsel acting for Pengerang Refining Company Sdn. Bhd. was Mr. Sanjay Mohanasundram (“Mr. Sanjay”) of Messrs Sanjay Mohan, who was also Poratha's lead counsel in the Adjudication Proceedings. Poratha contends that this concurrent adversarial relationship gave rise to "perceived enmity" and a reasonable suspicion of bias. [4] After carefully considering the cause papers, the written submissions filed by both parties, and the authorities cited therein, I dismissed the Setting Aside Application with costs of RM10,000 (subject to allocator fees). [5] Poratha has since lodged an appeal against my decision in respect of the aforesaid Setting Aside Application. These constitute my full reasons for the decision. B. BACKGROUND FACTS [6] By a Letter of Award dated 7.6.2022 (Subcontract No.: PF-109858- 104-005-A/B2), as amended by an Addendum dated 25.6.2022, Petrofac engaged Poratha as its sub-contractor for the provision of mechanical, structural, piping, painting and HSE works ("Mechanical Works") for the Engineering, Procurement, Construction and Commissioning (“EPCC”) of the Bintulu Additional Gas Sales Facilities-2 ("Project") for a contract sum of RM52,643,052.00. Petrofac also engaged Poratha for Electrical, Instrumentation, Telecom and Cathodic Protection Works ("EIT Works") under a separate subcontract. Both subcontracts covered works within two areas: the Greenfield area and the Brownfield area. [7] Disputes arose, and Poratha commenced 4 separate adjudication proceedings against Petrofac concurrently, with different adjudicators appointed for each proceeding, covering:

Mechanical Works in the Brownfield area; (ii) Mechanical Works in the Greenfield area; (iii) EIT Works in the Brownfield area; and (iv) EIT Works in the Greenfield area. The present proceedings concern item (ii), being the Mechanical Works in the Greenfield area. [8] As parties could not agree on an adjudicator for the above item(ii) i.e. the Mechanical Works in the Greenfield area dispute, on 30.10.2024 Poratha requested the Director of AIAC to appoint one pursuant to Section 21(b)(i) of CIPAA. [9] On 6.11.2024,AIAC sent a copy of its letter to Mr. Thayananthan Baskaran regarding his appointment as the Adjudicator for the adjudication proceedings, along with a copy of the AIAC’s letter of acceptance, dated 5.11.2024, duly signed by the Adjudicator, to the parties. [10] It is pertinent to refer to the correspondences between the parties, as exhibited in Poratha’s Affidavit in Support (“AIS”), following the appointment of the Adjudicator and before the commencement of the Adjudication Proceedings: Date Events Documents 6.11.2024 Poratha’s solicitors wrote to the Adjudicator(copied to AIAC & Petrofac’s solicitors) requesting that the Adjudicator decline the appointment on the ground of potential issues of conflict given that Adjudicator and Poratha”s lead counsel, Mr. Sanjay of Poratha’s solicitors, were Exhibit “A-5” of Plaintiff’s AIS, opposing counsel in OS 38.

7.11.2024 The Adjudicator wrote to both parties (copied to rejecting Poratha’s above request on the ground that there was no conflict of interest given that the OS 38 was unrelated to the parties, contract and project which was the subject of the present Adjudication.

Plaintiff’s AIS

11.2024 Poratha’s solicitors wrote to Petrofac’s solicitors asking if Petrofac would agree to jointly request that AIAC appoint a new adjudicator and that Poratha’s solicitors will make an application to Court to seek the Adjudicator’s recusal (“Proposal for New Adjudicator”).

Plaintiff’s AIS

11.2024 The Adjudicator issued his terms of appointment to both parties (copied to AIAC)

Plaintiff’s AIS

11.2024 Poratha’s solicitors responded to the Adjudicator’s letters of 7&8.11.2024(copied to AIAC & Exhibit “A-7” of Plaintiff’s AIS Poratha’s solicitors) :

maintaining the objection of the Adjudicator’s acceptance of the appointment to be inappropriate on the issue of conflict;

stating that Poratha did not agree to the proposed terms of appointment and fees; and (3) reserving Poratha’s rights to seek for necessary relief as Poratha deemed appropriate.

14.11.2024 The Adjudicator wrote to both parties (copied to requesting their reply to the Adjudicator’s letter dated 8.11.2024.

Plaintiff’s AIS

11.2024 Petrofac’s solicitors informed Poratha’s solicitors that Petrofac was agreeable to requesting a new adjudicator, on the condition that the present Adjudication and the adjudication for Mechanical Works within Brownfield be consolidated and heard before the same adjudicator. Exhibit “A-8” of Plaintiff’s AIS 8 15.11.2024 Poratha’s solicitors informed Petrofac’s solicitors of Poratha’s disagreement to Petrofac’s proposed consolidation and for the adjudication be heard by the same adjudicator and confirmed Poratha’s instruction to proceed with the appointment of Adjudicator in respect of the present Adjudication.

Plaintiff’s AIS

11.2024 Petrofac’s solicitors’ letter (copied to Petrofac’s Solicitors & to the Adjudicator confirmed Petrofac’s acceptance of the Adjudicator’s proposed terms as stated in the Adjudicator’s letter dated 8.11.2024.

Plaintiff’s AIS

11.2024 The Adjudicator issued Notice of Acceptance of the Appointment to Act as Adjudicator to the parties (copied to AIAC). Exhibit “A-8” of Plaintiff’s AIS [11] After the Adjudicator accepted the appointment, the parties proceeded with the Adjudication. Poratha filed the Adjudication Claim, followed by Petrofac’s Adjudication Response, and then Poratha’s Adjudication Reply. Further replies were filed by both parties, as consented to by the Adjudicator. Notably, Poratha did not take any further action or raise any challenge regarding the alleged potential conflict. [12] On 2.4.2025, the Adjudicator delivered the Adjudication Decision, which consisted of 112 pages, 80 of which contained the Adjudicator’s findings and reasons. The decision dismissed Poratha's claim of approximately RM17.8 million in its entirety and awarded costs of RM310,320.00 to Petrofac, covering legal fees, Adjudicator’s fees, expenses, and expert fees. [13] This outcome was in contrast to the 3 other adjudication decisions of 3 different adjudicators involving the same parties (though different subcontract works) which were decided in Poratha's favour, in which Poratha was collectively awarded approximately RM14 million. [14] On 15 July 2025, Poratha filed the present application to set aside the Adjudication Decision. C. COURT PROCEEDING [15] The following cause papers were filed for Setting Aside Application:

Originating Summons dated 15.7.2025;

(ii) Affidavit in Support of Poratha affirmed by Sheila Dewi A/P Vadivaloo on 15.7.2025;

(iii) Affidavit in Reply of Petrofac affirmed by Noorul Khairi bin Mohd Nor on 22.8.2025 &

(iv) Affidavit in Reply of Poratha affirmed by Sheila Dewi A/P Vadivaloo on 8.9.2025. D. THE APPLICABLE LEGAL FRAMEWORK [16] The legislative framework governing the present application is well-settled. CIPAA is designed to facilitate cash flow in the construction industry by providing a speedy, cost-effective, and binding interim dispute resolution mechanism. Speed, finality, and minimal court intervention are its hallmarks. Setting aside under Section 15 is an exceptional remedy, available only through narrow statutory gateways. [17] Section 15 of CIPAA provides, in relevant part: "15. A party may apply to the High Court to set aside an adjudication decision on the following grounds only —

the adjudication decision was improperly procured through fraud or bribery;

there has been a denial of natural justice;

the adjudicator has not acted independently or impartially; or

the adjudicator has acted in excess of his jurisdiction." [18] The Malaysian courts have repeatedly and consistently held that these grounds must be construed narrowly. Not every procedural irregularity, dissatisfaction with process, or unfavourable outcome warrants the court's intervention. As the Court of Appeal cautioned in Ireka Engineering and Construction Sdn Bhd v PWC Corp Sdn Bhd and another appeal [2019] 1 LNS 51, the court's function under Section 15(b) is to look at how the adjudicator conducted the hearing, not to re-examine the merits of the decision. [19] The test for apparent bias — applicable to both Section 15(b) and Section 15(c) — is well-established: whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased: Porter v Magill [2002] 2 AC 357; Bar Council Malaysia v Tun Dato' Seri Arifin bin Zakaria & Ors [2020] 4 MLJ 773. The test is objective. Subjective apprehension, however genuinely held, does not suffice. [20] Moreover, as recognised by Justice Azlan bin Sulaiman in the High Court’s decisions in SMCC Malaysia Sdn Bhd v Wah Loon (M) Sdn Bhd [2025] CLJU 1709 and Exyte Malaysia Sdn Bhd v Greencon Resources Sdn Bhd [2025] CLJU 1436, an allegation that an adjudicator has not acted independently or impartially is an extremely serious allegation that strikes at the adjudicator's honesty, character and integrity. Such allegations must not be made lightly, and clear and cogent evidence is required before the court will interfere. [21] I am also guided by the Federal Court's warning in View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22 that the court must carefully distinguish between: (a) core jurisdiction; (b) competence jurisdiction; and (c) procedural or conduct-related complaints. Not every complaint about the conduct of proceedings crosses the jurisdictional threshold. E. ISSUES FOR DETERMINATION [22] Based on the affidavits and submissions of the parties, I am of the view that the following are the main issues to be determined by this Court:

Whether the Adjudicator’s failure to disclose OS 38 constitutes a jurisdictional defect or excess of jurisdiction under section 15(d) of CIPAA;

(ii) Whether such non-disclosure or the refusal to decline appointment gives rise to a reasonable suspicion of bias, engaging sections 15(b) and/or 15(c) of CIPAA;

(iii) Whether the Adjudicator owes a duty to disclose;

(iv) Whether there was any denial of natural justice, and

Whether the Plaintiff is estopped or has waived the objection by continuing with the Adjudication. [23] With the above legal framework in mind and the need to address the issues outlined, I now turn to consider each of Poratha's grounds. F. DOES THE NON-DISCLOSURE OF OS 38 CONSTITUTE A JURISDICTIONAL DEFECT UNDER SECTION 15(d) OF CIPAA? [24] Poratha's primary contention is that the Adjudicator's failure to disclose OS 38 when signing his Section 24 declaration of acceptance amounts to a breach of the disclosure obligation under Section 24 of CIPAA so fundamental as to render his appointment ‘void ab initio’, thereby constituting an excess of jurisdiction under Section 15(d). [25] Section 24 of CIPAA requires an adjudicator, at the time of acceptance of appointment, to make a written declaration that: (a) there is no conflict of interest; (b) he shall act independently, impartially, and in a timely manner; (c) he shall comply with the principles of natural justice; and (d) there are no circumstances likely to give rise to justifiable doubts as to his impartiality and independence. [26] I am unable to accept Poratha's contention. There are two distinct reasons for this. [27] First, the proposition conflates the duty to disclose with the question of competence jurisdiction. Section 15(d) is directed at situations where the adjudicator decides matters beyond the scope of his statutory authority — where he decides a dispute not referred to him, or goes beyond the terms of the notice of adjudication. It is not a vehicle to impugn an adjudicator's appointment on the basis that he failed to disclose some circumstance. As correctly noted in View Esteem(supra), the jurisdictional threshold is the power to adjudicate — not whether every procedural obligation was scrupulously discharged. [28] In the present case, the Adjudicator was validly appointed by the Director of the AIAC pursuant to Section 21(b) of CIPAA. The subject matter of the adjudication fell squarely within CIPAA. The parties to the adjudication were parties to a construction contract. The Adjudicator decided precisely the dispute referred to him — nothing more and nothing less. There was no excess of jurisdiction in any legally cognisable sense. [29] Second, even if the disclosure obligation under Section 24 were breached (which I do not find on the facts), it does not follow that every such breach elevates to a jurisdictional nullity. To so hold would collapse an important legal distinction and invite an endless stream of post-adjudication decision challenges dressed up as jurisdictional complaints. Parliament could have expressly provided that a failure to disclose vitiates the appointment — it did not. The court should not read in such a consequence where the statute does not impose it. [30] I therefore find that Poratha’s setting aside application under Section 15(d) fails. The non-disclosure of OS 38 does not go to the Adjudicator’s jurisdiction. [31] By way of further submissions filed on 8.12.2025 (Enclosure 28), Poratha advances an additional jurisdictional argument. It characterises the Adjudicator’s conduct as involving two discrete “critical decisions”: first, a “Decision Not to Disclose” made prior to accepting appointment on 5.11.2024; and second, a “Determination of No Conflict” made on 7.11.2024 following Poratha’s challenge. [32] Poratha contends that CIPAA does not empower an adjudicator to make either decision: the first ought to have been submitted to the Director of AIAC as relevant disclosure enabling an informed appointment; the second ought to have been referred back to the Director of AIAC rather than self-determined. By self-determining both, Poratha submits, the Adjudicator usurped the Director’s statutory role under Section 23 of CIPAA and rendered his appointment a nullity. [33] Poratha further relies on the absence of a kompetenz-kompetenz clause in CIPAA (as contrasted with Section 18 of the Arbitration Act 2005) as confirmation that the Adjudicator lacked power to determine this jurisdictional question himself. [34] I have considered these further submissions carefully. For the reasons set out below, they are not persuasive and do not alter the conclusions I have reached above. [35] First, the fundamental premise of the further submissions — that the alleged conflict constitutes a “competence jurisdiction” defect engaging the rule that an adjudicator cannot decide on his own competence — is misconceived. The principle articulated in Terminal Perintis Sdn Bhd v Tan Ngee Hong Construction Sdn Bhd and another case [2017] MLJU 242 at paragraph [73] (as referred in Poratha’s submission) and adopted by the Federal Court in View Esteem(supra) is directed at a specific and narrow category of defect: where the adjudicator’s appointment is void because the foundational preconditions for CIPAA to apply were absent — in particular, where there was no valid payment claim, or where the payment claim was not served. [36] The Singaporean’s Court of Appeal’s decision in Lee Wee Lick Terence (alias Li Weili Terence) v Chua Say Eng (formerly trading as Weng Fatt Construction Engineering) and another appeal [2012] SGCA 63 at paragraph [30] explained this with precision: the power of the ANB (Authorised Nominating Body) to nominate arises from the service of a valid payment claim — if no such claim exists or is served, the power to nominate never arose and no valid adjudicator can result. [37] This is the precise sense in which competence jurisdiction is engaged. Petrofac correctly draws support from Geostream Sdn Bhd v MPTS Construction Sdn Bhd [2024] MLJU 3607, where the High Court confirmed that a competence jurisdiction challenge relates to the absence of a payment claim under Section 5 of CIPAA resulting in the adjudicator not having been properly appointed. [38] The present case has no such defect. There was an undisputed valid payment claim, a valid adjudication application, and the Director of AIAC exercised her power of appointment in full compliance with Section 21 of CIPAA. To assimilate a conflict of interest allegation — which, at its highest, is a complaint about the adjudicator’s suitability — with a competence jurisdiction nullity would impermissibly and unjustifiably extend the doctrine beyond its established scope. [39] Second, Poratha ’s argument that Section 24 of CIPAA does not empower the adjudicator to determine whether he is conflicted is self-defeating. Section 24 expressly requires the adjudicator, at the time of accepting appointment, to make a written declaration that there is no conflict of interest and no circumstances likely to give rise to justifiable doubts as to his impartiality and independence. [40] As Petrofac correctly observes at paragraph 20.2 of its Reply to Further Submissions dated 15.12.2025(Encl 30): if the adjudicator had no power to determine whether he was conflicted, Parliament would not have required him to make a mandatory declaration to precisely that effect before accepting appointment. One cannot declare an absence of conflict without first assessing whether one exists. [41] I am of the view that the obligation to declare necessarily entails the power to assess. Parliament, by enacting Section 24, has implicitly conferred on the adjudicator the authority to make that preliminary self-assessment. Poratha’s submission that the Adjudicator was wholly devoid of authority to determine the conflict question is irreconcilable with the statutory obligation Parliament has imposed on him. [42] Third, and in any event, Section 27(3) of CIPAA expressly authorises the adjudicator to proceed with and complete the adjudication “notwithstanding a jurisdictional challenge.” The Poratha sought to read the word “may” in Section 27(3) as suggesting that an alternative avenue — referral to the Director of AIAC — was available. I do not accept this. The word “may” confers a discretion to proceed, not an obligation to refer elsewhere. And there is, in any event, no avenue of referral to the Director of AIAC within the statutory scheme. As was held in Ranhill E & C Sdn Bhd v Tioxide (M) Sdn Bhd and other appeals [2015] MLJU 1873 at paragraphs [41]-[43], a jurisdictional challenge “may or may not be disposed of by the adjudicator” — and the fact that an adjudicator decides on the issue “is no reason to say that either is wrong or right.” [43] In Punj Lloyd Sdn Bhd v Ramo Industries Sdn Bhd & Anor and another case [2019] 11 MLJ 574 at paragraph [27]-[28], the High Court confirmed that when a jurisdictional challenge is raised, the adjudicator “need not have to wrestle with the issue nor be rattled by it” and may proceed under Section 27(3) providing non-binding observations on the jurisdictional point. The Adjudicator was therefore entirely within his rights under CIPAA to address the conflict objection and proceed with the adjudication. [44] Fourth, Poratha’s alternative proposition — that the learned Adjudicator was obliged to refer the conflict issue to the Director of AIAC for determination, there being a “residual discretion” so vested in the Director — is fundamentally unsupported by CIPAA and requires this Court to insert a statutory power and procedure that Parliament has not provided. [45] Section 23 of CIPAA confers upon the Director of AIAC a limited and specific administrative function: to appoint an adjudicator where the parties cannot agree(pursuant to Section 21(b)). There is no provision in CIPAA whatsoever conferring on the Director any ongoing supervisory or post-appointment role in respect of conflict of interest disputes. If Parliament had intended the Director to exercise such a function, it would have said so expressly. [46] This Court will not read in a statutory power in the absence of clear legislative provision to that effect. Furthermore, as Petrofac aptly observes, the proposition is also internally inconsistent: if the Adjudicator, having considered the Director’s determination, remained the ultimate party to decide whether to accept the appointment and make his Section 24 declaration, then referral to the Director would serve no meaningful purpose. The Director’s determination, on Poratha ’s own case, would not be binding. [47] Fifth, and in any event, Poratha ’s further jurisdictional argument is conclusively barred by its own conduct. As Petrofac correctly submits at paragraph 14 of its Reply to Further Submissions and during the Adjudication Proceedings themselves, Poratha never raised any contention that the Adjudicator’s appointment was invalid or that his jurisdiction was defective by reason of the alleged conflict. The Poratha did not raise this in its adjudication claim, adjudication reply, or adjudication reply no. 2. [48] Tellingly, on 15.11.2024—before the Adjudication Proceedings formally commenced—Poratha’s solicitors unequivocally stated in their letter to Petrofac’s solicitors that they had been instructed by Poratha to 'proceed with the appointment of Mr. Thayananthan Baskaran in respect of the Mechanical Greenfield Adjudication.' This statement was made without any reservation regarding the competence, jurisdiction, or validity of the appointment. In my opinion, given that this letter was sent after Poratha’s solicitors’ letter to the Adjudicator on 13.11.2024, which reserved their rights, it neutralises Poratha’s opposition to the Adjudicator’s appointment. [49] The Malaysian courts have consistently held that a party must raise competence jurisdiction objections promptly — and that a party who instead elects to proceed with the adjudication is barred from raising that objection as a setting aside ground after the award: Sue Lye Construction Sdn Bhd v Brilliant LTP Construction Sdn Bhd and another summons [2025] MLJU 719; Zana Bina Sdn Bhd v Cosmic Master Development Sdn Bhd and another case [2017] MLJU 146 and Gazzriz Sdn Bhd v Hasrat Gemilang Sdn Bhd & another case [2016] 1 LNS 1280. As Lee Swee Seng J (now FCJ) expressed in Gazzriz (supra): “[57] delay in raising this objection and raising it for the first time after the Decision has been given “smacks of bad faith on the part of the Respondent who is scrabbling the bottom of the barrel to raise every possible ground to set aside the Decision not in its favour. That simply would not do.” This characterisation applies with full force to the present circumstances. [50] For all these reasons, Poratha’s further submissions do not advance its case on jurisdiction. The learned Adjudicator was entitled under CIPAA to assess the conflict objection and to proceed with the adjudication. He did not usurp the statutory role of the Director of AIAC or commit any jurisdictional error by doing so. The further submissions raise no new ground of substance, and the argument — even if correct in principle (which it is not) — is in any event conclusively barred by Poratha ’s unequivocal election to proceed without reservation. G. DO THE CIRCUMSTANCES GIVE RISE TO APPARENT BIAS UNDER SECTIONS 15(b) AND 15(c) OF CIPAA?

The Applicable Test [51] Sections 15(b) and 15(c) of CIPAA are overlapping but distinct provisions. The first limb of natural justice (Section 15(b)) requires the adjudicator to be unbiased; Section 15(c) independently requires independent and impartial conduct. The applicable test for both is the real possibility of bias — assessed objectively through the lens of the fair-minded and informed observer: Rosha Dynamic Sdn Bhd v Mohd Salehhodin bin Sabiyee [2021] MLJU 1222. [52] The fair-minded and informed observer is not unduly suspicious. He or she knows how legal proceedings work, understands that lawyers commonly find themselves opposing each other in different forums, appreciates that professional adversity is part of legal practice, and does not confuse vigorous advocacy with personal animosity. He or she looks at all the circumstances and asks: is there a real — not merely fanciful — possibility of bias?

(ii) The "Double-Hatting" Argument [53] Poratha's principal factual argument is what it calls "double-hatting": the Adjudicator simultaneously held an adversarial role as lead counsel in OS 38 opposing Mr. Sanjay, while also holding an adjudicatory role over a dispute in which Mr. Sanjay appeared for Poratha. Poratha submits that this created a structural conflict of interest sufficient to give rise to a reasonable suspicion of bias, drawing on international arbitration authorities including Blue Bank International & Trust (Barbados) Ltd v Bolivarian Republic of Venezuela (ICSID Case No. ARB/12/20), ICS Inspection and Control Services Limited v Republic of Argentina (UNCITRAL, PCA Case No. 2010-9), and Eiser Infrastructure Limited v Kingdom of Spain (ICSID Case No. ARB/13/36). [54] I have carefully considered these authorities. They are drawn from the distinct context of international investment arbitration and the ICSID framework, which operates under different rules, different standards, and different institutional arrangements from domestic CIPAA adjudication. I am not persuaded they directly translate into the present context, where Parliament has enacted a specific and narrow statutory framework governing challenges to adjudication decisions. [55] But even taking the principle at its highest — that an ongoing adversarial relationship between a decision-maker and a party's counsel in an unrelated proceeding may in appropriate circumstances give rise to apparent bias — I am not satisfied that the present facts cross that threshold. [56] OS 38 was wholly unrelated to the present adjudication in every material respect. The parties in OS 38 were different (Sinopec and Pengerang); the contract was different; the subject matter was different; the project was different; the legal issues were different. The Adjudicator's role in OS 38 was purely representational — he appeared as counsel for his client, as counsel routinely do. There was no personal stake or financial interest in OS 38 that touched or concerned the present adjudication. [57] Mr Sanjay's role in OS 38 was equally representational — he appeared for Pengerang, not for Poratha. The suggestion that because the same counsel appeared in different roles in an unrelated matter, the Adjudicator might harbour subconscious hostility sufficient to distort his adjudicatory function is, on these facts, speculative and abstract. [58] The critical distinction between the international arbitration cases relied upon by Poratha and the present facts is instructive. In Blue Bank v Venezuela(supra), the arbitrator's firm was actively acting against Venezuela in ongoing related proceedings. In ICS Inspection v Argentina(supra), the arbitrator himself had recently and personally acted adversely against Argentina. In Eiser v Spain(supra), the arbitrator had an ongoing collaborative professional relationship with a damages expert appointed by one of the parties in the very arbitration before him. In each of those cases, there was a demonstrable and concrete link between the conflict and the proceeding at hand. [59] No such concrete link exists here. Poratha has not pointed to a single finding, procedural ruling, evidential determination, or evaluative step in the Adjudication Decision that evidences any partiality. The challenge is structural and abstract. It is predicated entirely on the possibility that the Adjudicator might have been subconsciously influenced — not on any evidence that he was. [60] As Lee Swee Seng J (now FCJ) stated in Binastra Ablebuild Sdn Bhd v JPS Holdings Sdn Bhd & another case [2018] 8 MLJ 190, unless there is cogent and convincing evidence of lack of independence or impartiality, the court would not venture into accusations of this nature. The adjudicator is expected to mean what he declared as true. The court in Rentak Segar Sdn Bhd v Transmission Technology Sdn Bhd [2018] 1 LNS 2130 similarly held that the court must be slow to allow a ground based on alleged lack of independence and impartiality, given that the adjudicator has no opportunity to respond to the affidavits filed against him. [61] I accept Petrofac's submission that the scenario described by Poratha does not fall within any of the enumerated circumstances constituting a conflict of interest under Regulation 5(6) of the Construction Industry Payment and Adjudication Regulations 2014. Regulation 5(6) specifically defines when a conflict of interest arises for CIPAA purposes: it requires the adjudicator to be an employee, director, partner or shareholder of a party; a party to be a family member; or the adjudicator to have assisted a party in preparing documents or provided advice in relation to the construction contract. Being opposing counsel in an unrelated matter involving different parties does not fall within any of these categories. [62] Poratha argues that Regulation 5(6) is non-exhaustive. Even if I were to accept this — which I do not need to decide — the proposition must still clear the high hurdle of demonstrating that the circumstances objectively give rise to a real possibility of bias. For the reasons already stated, this hurdle has not been cleared. [63] I note, for completeness, that Poratha relies on the Federal Court’s decision in Kerajaan Malaysia & Anor v Dr Vijaendreh a/l Subramaniam & Anor [2025] 2 MLJ 701 for the proposition that subsidiary legislation cannot restrict or read down rights conferred by primary legislation — and therefore that Regulation 5(6) of the CIPA Regulations cannot exhaustively define or limit the disclosure duty imposed by Section 24 of CIPAA. [64] The general constitutional principle affirmed in Dr Vijaendreh(supra) is uncontroversial. However, its application here is misplaced. Even accepting that the disclosure duty in Section 24 of CIPAA extends beyond the categories in Regulation 5(6) — and that a broader common law standard of disclosure applies — that finding only widens the inquiry into whether a disclosure obligation arose on the facts. It does not, without more, generate a ground for setting aside. [65] The 2 questions are entirely distinct: the scope of the duty of disclosure on the one hand, and the legal consequence of a breach on the other. On the latter question, my findings on Section 15(d), Section 15(c) and Section 15(b) each remain unaffected by the breadth of the disclosure duty. Non-disclosure of facts that do not, objectively, give rise to apparent bias cannot found a setting aside challenge — whether the disclosure duty is wide or narrow.

(iii) The Perceived Enmity Argument [66] Poratha places considerable reliance on what it describes as a "heated exchange" between the Adjudicator (as counsel for Sinopec) and Mr Sanjay (as counsel for Pengerang) during the hearing of OS 38, concerning whether Sinopec's counsel had made full and frank disclosure of the correct legal position in obtaining an ex parte injunction. Poratha contends this exchange evidences "perceived enmity" between the Adjudicator and Poratha's counsel. [67] I have read the transcript of proceedings in OS 38 produced in the affidavit evidence. I am unable to characterise what occurred as evidencing enmity, much less enmity of the intensity required by the legal definition. The exchange was a legal disagreement about whether non-disclosure obligations in an ex parte application extended to written submissions. The Adjudicator, in his capacity as counsel, responded to the court's observation that non-disclosure is typically confined to facts in affidavits, not submissions. This is entirely normal contested advocacy. [68] Enmity — as correctly submitted by Petrofac with reference to Black's Law Dictionary — denotes an intense feeling of hatred, mutual hostility, or the state of being enemies. What is described in the transcript falls conspicuously short of this standard. There were no personal attacks, no offensive remarks, no conduct suggesting animosity beyond professional disagreement on a legal point. [69] Poratha also seeks to derive "enmity" from the fact that the Adjudicator refused to decline his appointment after Poratha raised its objections. With respect, this is untenable. The Adjudicator concluded — entirely reasonably — that there was no conflict of interest. He was entitled to reach that conclusion. His decision to proceed with his appointment, having formed that view, cannot itself be characterised as evidence of antagonism toward Poratha's counsel. To accept this argument would mean that any adjudicator who declines to capitulate to a demand for recusal thereby demonstrates bias, which would be a perverse outcome. [70] I note further that Poratha's counsel was the party alleging material non-disclosure against the Adjudicator's client in OS 38 — not the other way around. It was Poratha's counsel who raised contentious challenges directed at the Adjudicator's client in that proceeding. If this dynamic were capable of generating the appearance of bias, it would more logically be the Adjudicator's client (had it been a party to the adjudication) who might claim apprehension of prejudice — not Poratha. [71] Further, upon reviewing Justice Nadzarin bin Wok Nordin’s (now JCA) decision in Sinopec Engineering (Group) Co Ltd & Anor v Pengerang Refining Company Sdn Bhd [2025] MLJU 1533, I do not find any evidence of a ‘heated argument’ between the two counsels. Moreover, his Lordship held that the Plaintiffs (Sinopec) made full and frank disclosure, satisfying the requirements under the ROC 2012 when applying for the Ex-Parte Order, including disclosing all relevant material, even those unfavourable to the Plaintiffs(Sinopec). In any case, the fact that the Adjudicator’s client(Sinopec) succeeded in its injunction application under OS 38, which was subsequently upheld by the Court of Appeal, is immaterial to the Setting Aside Application before me. [72] I therefore find that no reasonable and informed observer, viewing all the circumstances objectively, would conclude that there was a real possibility of bias on the part of the Adjudicator. H. THE DUTY TO DISCLOSE AND ITS LEGAL CONSEQUENCES [73] Poratha advances a distinct but related argument: even if the circumstances do not establish actual bias, the Adjudicator's failure to disclose OS 38 was itself a breach of his disclosure obligation and a separate ground for setting aside, relying on the principle in United Kingdom’s Supreme Court in Halliburton Co v Chubb Bermuda Insurance Ltd [2021] 2 All ER 1175 that failure to disclose is itself a factor the fair-minded observer would take into account. [74] I accept, as a general proposition, that the duty of disclosure by adjudicators and arbitrators is well-established in Malaysian and international jurisprudence. The principle in Halliburton(supra) — that a failure to disclose is a factor to which the fair-minded observer would have regard — has been referred in Malaysian proceedings including Rosha Dynamic(supra). I also accept that the duty of disclosure may extend beyond circumstances that would warrant disqualification to circumstances that might found or warrant a bona fide application for recusal: Jung Science Information Technology Co Ltd v Zte Corporation [2008] HKCU 1127. [75] However, several important qualifications apply. [76] First, the duty to disclose is predicated on the existence of circumstances that may — in the eyes of a reasonable and informed observer — give rise to doubts about impartiality. If, on an objective assessment, the circumstances do not give rise to such doubts, there is nothing to disclose. It would be a circular exercise to say: because there was no disclosure, there must be a conflict; and because there is a conflict, there ought to have been disclosure. The duty to disclose presupposes that the circumstances in question carry sufficient potential for concern — and I have already found that they do not, on the present facts. [77] Second, as Petrofac correctly submits, the AIAC was copied on Poratha's Request to Decline Appointment, which set out the full basis of Poratha's objection. The AIAC was therefore aware of OS 38 and the relationship between the respective counsel. Significantly, AIAC took no steps to revoke the Adjudicator's appointment or raise any concern. This indicates that the institutional appointing authority — equipped with knowledge of the alleged conflict — did not regard it as warranting intervention. [78] Third, even accepting that disclosure of OS 38 would have been the more prudent course ("err on the side of disclosure"), it does not follow that the failure to do so vitiates the adjudication. The consequence of a failure to disclose depends entirely on whether the undisclosed circumstances, had they been disclosed, would have given rise to a real possibility of bias. Since I have found they would not, the failure to disclose has no operative legal consequence in the setting aside analysis. [79] Fourth, and most fundamentally, the argument that non-disclosure is “of itself” a standalone ground for setting aside — independent of whether the undisclosed circumstances give rise to apparent bias — is circular and cannot stand. In an LCIA challenge decision dated 20 February 2019 (LCIA Decision 11/2019) cited by Petrofac, the challenge arbitrator explicitly rejected this reasoning in the following terms: “As an additional issue… the Claimant seeks to rely on the very fact of non-disclosure as ‘of itself’ giving rise to justifiable doubts as to impartiality… This can be disposed of at the outset since, in my view, such an argument is circular and cannot add anything to the basic test as outlined above. If the facts relied on are themselves insufficient to ground a proper challenge, then the failure to disclose those facts cannot ‘of itself’ generate a further ground of challenge separate from those facts.” [80] While that decision arose in the international arbitration context, the underlying logic is equally applicable here. Non-disclosure cannot bootstrap a challenge where the underlying undisclosed facts are themselves insufficient to ground one. The inquiry must always return to the fundamental question: do the circumstances, objectively assessed, give rise to a real possibility of bias? I have already found that they do not. I. DENIAL OF NATURAL JUSTICE [81] Poratha contends that natural justice was denied on two related bases: first, the Adjudicator was not fit to decide his own impartiality; and second, Poratha was placed in a position of procedural unfairness by being compelled to proceed before a potentially biased decision-maker. [82] As to the first basis: CIPAA contains no provision for interlocutory recusal applications. There is no mechanism within the statutory framework by which a party can apply, mid-adjudication, to have the adjudicator recused. When Poratha raised its objection, the Adjudicator was required, as a matter of practical necessity, to consider and rule on that objection himself. This is not a denial of natural justice — it is an unavoidable feature of the CIPAA framework, which by design does not replicate the fuller procedural machinery of court or arbitration proceedings. [83] I note, significantly, that Poratha was heard on its objection. The Adjudicator responded in writing, setting out his reasons for not declining the appointment. Poratha thereafter participated fully in the adjudication and advanced its substantive case. Natural justice concerns process, not outcome: Gazzriz(supra). A party who chooses to participate fully in proceedings, raises all its arguments on the merits, and then challenges the process only after receiving an adverse decision cannot claim that the process was unfair to it. [84] As to the second basis: the alleged procedural unfairness — being required to proceed before an adjudicator Poratha objected to — is a consequence of the CIPAA framework, not a breach of it. Poratha elected to proceed. It could have withdrawn the adjudication under Section 17(1) of CIPAA. It chose not to. Its decision to continue, having reserved its rights, was a calculated tactical choice. [85] There is a further and reinforcing reason to dismiss this ground. The Court of Appeal in TSR Bina Sdn Bhd v Sykt Pembenaan Yeoh Tiong Lay Sdn Bhd [2024] 4 MLJ 405 has authoritatively held that an alleged breach of natural justice, to be actionable under Section 15(b) of CIPAA, must satisfy a materiality threshold: it must be a breach that has materially affected the outcome of the adjudication. This requirement is consistent with the principle recognised across common law jurisdictions that not every procedural imperfection warrants curial intervention — the court is concerned with real injustice, not technical complaint. [86] In the present case, Poratha has not demonstrated — nor even attempted to demonstrate — how any procedural unfairness in the adjudication process has materially affected the outcome of the Adjudication Decision. The complaint is wholly structural and abstract: that the Adjudicator was improperly appointed. There is no identification of a specific step, ruling, finding, or procedural direction in the conduct of the adjudication that was tainted by the alleged bias, still less that any such step altered the result. Even on the assumption that the natural justice ground were otherwise established (which I have not found), the absence of demonstrated materiality constitutes an independent basis for declining to set aside. [87] I accordingly find that no denial of natural justice has been established. J. ESTOPPEL AND ELECTION [88] I have not found it necessary to rest my decision primarily on estoppel or election. The application fails on its merits. However, Poratha 's conduct is relevant context and reinforces my conclusions on the substantive grounds. [89] The chronology is telling. By letter dated 13.11.2024 — just days before the adjudication formally commenced — Poratha's solicitors reserved Poratha's rights but 2 days later on 15.11.2024 in its letter to Petrofac’s solicitors confirmed it would proceed with the adjudication without any reservation. Poratha did not: (a) apply to Court for the Adjudicator's recusal, as it had earlier threatened; (b) seek to withdraw the adjudication; (c) challenge the appointment by any formal process; or (d) raise the conflict issue again in any form during the conduct of the adjudication itself. [90] Instead, Poratha engaged fully with the adjudication, delivered its adjudication claim, responded to the Respondent's submissions, and participated throughout. Only after receiving an adverse decision — dismissing its entire claim and awarding substantial costs against it — did Poratha revive its challenge to the Adjudicator's appointment. [91] This sequence is precisely the pattern that CIPAA jurisprudence has consistently disapproved of as a tactical post-award challenge. As held in Lee Wee Lick (supra), the authorities have expressed concern that parties who lose adjudications use setting aside applications as a backdoor means to resist enforcement, contrary to the statutory purpose. The Malaysian courts have adopted the same approach: Sue Lye (supra); Zana Bina(supra) and Gazzriz(supra). [92] If Poratha had a genuine and substantial concern about the Adjudicator's impartiality, the proper course was to act on it promptly and decisively — either by applying to Court before the adjudication progressed, or by withdrawing the adjudication to avoid the risk of an unsatisfactory outcome. Poratha chose neither path. It took a calculated risk that the adjudication might yet be decided in its favour. When that gamble failed, it sought to set aside the decision by reviving the very objection it had abandoned. [93] This is the very kind of "tactical insurance" challenge that the courts have repeatedly warned against. It would be contrary to the policy underpinning CIPAA to allow it. K. THE IBA GUIDELINES ON CONFLICTS OF INTEREST [94] Poratha places considerable reliance on the IBA Guidelines on Conflicts of Interest in International Arbitration 2024 ("IBA Guidelines"). Poratha submits that: (a) the Adjudicator's situation constitutes an "Orange List" situation under Article 3.2.7 (enmity between arbitrator and counsel); and (b) the double-hatting scenario falls within the spirit of Article 3.1.2 (counsel having acted against one of the parties within the past three years). It is further submitted that the Orange List situations carry a duty to disclose and that the IBA Guidelines are non-exhaustive. [95] I make several observations about this reliance. [96] First, the IBA Guidelines are formulated for international arbitration. They do not, by their own terms, govern domestic adjudications under CIPAA. The disclosure and conflict framework for CIPAA adjudicators is comprehensively addressed by Section 24 of CIPAA and Regulation 5 of the CIPA Regulations 2014. Parliament has made specific provision for what constitutes a conflict of interest in the CIPAA context — and that provision does not include opposing counsel in an unrelated matter. [97] Second, even if the IBA Guidelines were treated as persuasive guidance in the CIPAA context — as Poratha urges — the Orange List is a list of situations that may, in the eyes of the parties, give rise to doubts. The Orange List itself acknowledges that these are not automatic disqualifying circumstances, but situations requiring disclosure and consideration. The question in each case remains whether, on the specific facts, a real possibility of bias exists. That question must be assessed on the facts as I have found them — and I have found it does not. [98] Third, I do not accept that the present situation falls within Article 3.2.7 (enmity). As I have already found, the interactions in OS 38 did not evidence enmity in any meaningful sense. Nor does the situation squarely correspond to Article 3.1.2, which addresses the arbitrator personally having served as counsel against one of the parties to the arbitration. In this case, the Adjudicator was not counsel against Poratha — he was counsel against Pengerang, which is an entirely different entity. [99] Accordingly, the reliance on the IBA Guidelines does not advance Poratha's case. L. THE CONTRAST WITH THE OTHER THREE ADJUDICATION DECISIONS [100] Poratha draws attention to the fact that the 3 other adjudication decisions in the same Project were decided in its favour, collectively awarding approximately RM14 million, and that only the Adjudication Decision in the present proceedings went against it. Poratha appears to suggest this inconsistency is itself corroborative of the bias allegation. [101] I am unable to agree with this contention. The 4 adjudication proceedings concerned different subcontracts, different scopes of work (Brownfield vs Greenfield; Mechanical vs EIT), and were presided over by different adjudicators, each making independent assessments of the evidence and submissions placed before them. Petrofac correctly submits that by electing to bring 4 separate adjudications rather than accepting Petrofac's proposal for consolidation, Poratha itself took the risk of inconsistent outcomes. [102] Adjudicators are not bound by the determinations of their counterparts in related proceedings. Each adjudicator is required to decide the dispute on the evidence and submissions before him. An adverse outcome in one proceeding, contrasted with favourable outcomes in others, does not demonstrate bias. It demonstrates, at most, that the adjudicators reached different conclusions on different facts. [103] As Petrofac correctly notes, the Adjudication Decision itself shows that the Adjudicator dismissed Poratha's claim for substantive reasons rooted in the contractual terms — specifically, his finding that Article 27 of the General Terms and Conditions applied to all the delays alleged by Poratha, and that Poratha had failed to comply with the notice and impact assessment requirements as conditions precedent to adjustment of the subcontract price or completion date. These were findings on the merits. They were not tainted by any bias or impropriety. M. CONCLUSION [104] In summary, having considered the entirety of the parties' submissions and the authorities cited, I find as follows:

The non-disclosure of OS 38 does not constitute a jurisdictional defect under Section 15(d) of CIPAA. The Adjudicator was validly appointed, had authority over the subject matter, and decided within his mandate. This ground fails.

The circumstances — being opposing counsel in an entirely unrelated proceeding involving different parties, a different contract, and a different project — do not give rise to a real possibility of bias, whether assessed through the prism of "double-hatting", "perceived enmity", or any other formulation. The Poratha has not identified a single step in the adjudication process that evidences impartiality. This ground fails.

The failure to formally disclose OS 38 has no operative legal consequence, as the circumstances did not carry the potential for concern that would trigger such a duty in the first place. In any event, AIAC was aware of the position, took no action, and the outcome of the adjudication is immaterial to the disclosure analysis.

No denial of natural justice occurred. Poratha was heard on its objection, participated fully in the adjudication, and its dissatisfaction with the outcome does not retroactively convert fair process into unfair process.

Poratha's conduct — in abandoning its threatened court application, proceeding with the adjudication with full knowledge of its objection, and reviving the challenge only after an adverse decision — is consistent with a tactical post-award challenge that CIPAA policy firmly discourages. [105] The policy underlying CIPAA is clear and has been articulated repeatedly by the courts: adjudication decisions must be enforced as a matter of course; setting aside is exceptional; parties must not be permitted to use procedural challenges as a substitute for substantive vindication on appeal. To allow this application would impermissibly dilute the finality and efficiency of the CIPAA regime. N. ORDER [106] For the foregoing reasons, Poratha 's application to set aside the Adjudication Decision dated 2 April 2025 is dismissed with costs. Dated 22nd December 2025 sgd RAJES RAGHAVJI JUDICIAL COMMISSIONER HIGH COURT CONSTRUCTION COURT 1 KUALA LUMPUR COUNSEL FOR THE PLAINTIFF: Sanjay Mohanasundram and Tan Jia Shen (Messrs Sanjay Mohan) COUNSEL FOR THE DEFENDANT: Zack Tan and Joyce Ng (Messrs Raja, Darryl & Loh)