Sabah Shell Petroleum Company Limited v Gumusut-Kakap Semi-Floating Production System (Labuan) Limited (WA-24C(ARB)-10-05/2020)

These are applications to set aside an arbitration award as well as to set aside the registration of the same award pursuant to ss. 37 and 39 of the Arbitration Act 2005 (“AA”).

The Plaintiff in KL High Court Originating Summons no. WA- 24C(ARB)-10-05/2020 (“Enforcement Application”) and Defendant in KL High Court Originating Summons no. WA-24C(ARB)-18-03/2021 (“Setting Aside Application”) is a limited company incorporated in the United Kingdom and involved in the oil and gas business.

The Defendant in the Enforcement Application and Plaintiff in the Setting Aside Application is a limited company incorporated in Labuan and involved in the crude oil and natural gas production business as well.

For ease of reference and convenience, the parties will hereinafter be described as SSPC and GKL respectively.

In 2004, SSPC and its co-venturers Petronas Carigali Sdn Bhd, Conoco Philips Sabah Ltd and Murphy Sabah Oil Co. Ltd. discovered oil at the Gumusut-Kakap field and declared it commercially viable.

Hence in 2005, Petroliam Nasional Bhd (“Petronas”) appointed SSPC under a production sharing contract (“PSC”) as the unit operator of the Gumusut-Kakap field to undertake operations and extraction of oil therefrom on behalf of all the co-venturers.

On 17 November 2006, SSPC issued an instruction and authorization to proceed letter to MISC Bhd to commence engineering, procurement and construction of a semi-submersible floating production platform (“Semi-FPS”). This Semi-FPS is a specially designed purpose built platform that weighs 37,500 metric tonnes and stationed at sea for 30 years. It is capable to operate in waters up to depth of 1,200 metres and produce up to 150,000 barrels of oil per day. The Semi-FPS together with the accomodation vessel is depicted below.

In 2012, MISC Bhd incorporated GKL as its wholly owned subsidiary and special purpose vehicle to take over the engineering, procurement and construction of the Semi-FPS.

Thus by a Lease Agreement (Contract no. C-591672) dated 9 November 2012 ("Contract"), SSPC and GKL contracted for the carrying out of the engineering, procurement, construction and lease of the Semi-FPS.

Subsequently, there were disputes and differences that arose between the parties in connection with the performance of the Contract particularly on the punctuality of completion as well as quality of work of the Semi-FPS. Thus in crux, GKL claimed for unpaid disputed variation work claims that allegedly arose under the Contract whilst SSPC set off and counterclaimed for disputed claims for costs of defects remediation work carried out to make good allegedly non-conforming work done and liquidated delay damages.

These disputes and differences were referred to arbitration that commenced on 2 September 2016 before an eminent and experienced arbitral tribunal comprising of Sir Vivian Ramsey QC, Professor Doug Jones and Dr Robert Gaitskell QC ("collectively "Tribunal"). Sir Vivian Ramsey is a chartered civil engineer and barrister. He is also a retired judge of the English Queens Bench Division (Technology and Construction Court), an arbitrator and international judge of the Singapore International Commercial Court presently. Professor Doug Jones is a lawyer, arbitrator and international judge of the Singapore International Commercial Court presently too. Dr. Robert Gaitskill is a chartered electrical engineer, barrister and arbitrator. The arbitral proceeding was conducted under the auspices of the Kuala Lumpur Regional Centre of Arbitration (now Asian International Arbitration Centre) and subjected to the KLRCA Arbitration Rules. It was agreed by the parties as recorded in the Procedural Order no. 1 dated 6 February 2017 that the application of ss. 41, 42, 43 and 46 of the AA is excluded from the arbitral proceeding.

The Tribunal published its final award dated 8 April 2020 ("Award") by ordering as follows in paragraph (3461) of the Award:

That Handover Completion under the Contract did not occur prior to 11 October 2014;

That SSPC shall pay GKL the Additional Lease rate of USD43,336.01 per day as from the date of this Award;

That GKL shall pay SSPC the following sums:

USD324,695,970.59 for the Work Done Claims, Liquidated Damages and Overpayment in respect of the Semi-FPS Day Rate and sums awarded in the Adjudication Proceedings;

USD84,844,226.64 for interest up to the date of this Award;

USD12,746,570.70 for the Costs under Article 12(9) of the

Interest at 6.65% on the sums awarded in this Award from the date of this Awards until payment.

That SSPC is entitled to set-off the above claims against moneys owed by SSPC to GKL under the Contract, including but not limited to the Semi-FPS Day Rate.

That GKL and SSPC shall do everything necessary to account for any GST that has already been paid or may be due on the sums awarded, as may be required by the relevant GST legislation and practice.

Except as set out above, the Tribunal dismisses the Claims of GKL and the Counterclaims of SSPC. [13] Consequently SSPC on 22 May 2020 filed its Enforcement Application to enforce the Award which I allowed on 7 July 2020 pursuant to s.38 of the AA. In addition, SSPC began to set off the sum awarded in the Award against the monthly Semi-FPS lease payment payable to GKL pursuant to the Contract; see Sabah Shell Petroleum Company Limited v Gumusut-Kakap Semi-Floating Production System (Labuan) Limited [2021] 1 LNS 1729. [14] GKL however on 7 July 2020 filed KL High Court Originating Summons no. WA-24NCC(ARB)-16-07/2020 to set aside the Award in the Commercial Court. [15] Furthermore GKL on 27 July 2020 filed its application to challenge/set aside the registration of the Award made under the Enforcement Application pursuant to s. 39 of the AA (“Challenge Application”). [16] Since the Enforcement Application was made here in the Construction Court and the setting aside of the Award application was originally made in the Commercial Court, both applications were eventually ordered to be disposed by the Construction Court; see Sabah Shell Petroleum Company Limited v Gumusut-Kakap Semi-Floating Production System (Labuan) Limited [2021] 1 LNS 289. The setting aside application of GKL has hence been re-constituted as the Setting Aside Application. [17] I heard both the Setting Aside Application and the Challenge Application (collectively “Applications”) concurrently hybrid, to wit, either by Zoom remote communication technology or physical in-person on different dates for the total of 10 days on 9 September 2021, 1, 20 and 25 October 2021, 13 January 2022, 16 and 17 February 2022, 4 April 2022, 10 August 2022 and 23 September 2022. [18] The affidavits which were filed for purposes of the Setting Aside Application are as follows:

GKL’s Affidavit in Support affirmed by Noridah binti Khamis on 7

(ii) SSPC’s Affidavit in Reply affirmed by Kho Liang Kung on 29 August 2020 (Enclosures 22 – 28);

(iii) GKL’s Affidavit in Reply affirmed by Noridah binti Khamis on 9 October 2020 (Enclosure 44);

(iv) SSPC’s Affidavit in Reply (2) affirmed by Kho Liang Kung on 16 November 2020 (Enclosure 64);

SSPC’s Notice of Intention to Use Affidavit dated 23 April 2021 (Enclosure 87);

(vi) SSPC’s Affidavit in Support affirmed by Kho Liang Kung on 14 August 2020 (Enclosure 19);

(vii) SSPC’s Affidavit in Reply affirmed by Kho Liang Kung on 14 September 2020 (Enclosure 31);

(viii) SSPC’s Affidavit in Support affirmed by Kho Liang Kung on 16 November 2020 (Enclosure 66); and

(ix) SSPC’s Affidavit in Reply affirmed by Kho Liang Kung on 5 January 2021 (Enclosure 70). [19] The affidavits which were filed for purposes of the Challenge Application are as follows:

SSPC’s Affidavit in Support affirmed by Kho Liang Kung on 22 May 2020 (Enclosures 2 - 4);

(ii) GKL’s Affidavit in Support affirmed by Noridah binti Khamis on 7 July 2020 (Enclosures 10 - 25);

(iii) SSPC’s Affidavit in Reply affirmed by Kho Liang Kung on 2 August 2020 (Enclosures 29 - 35);

(iv) GKL’s Affidavit in Reply affirmed by Noridah binti Khamis on 9 October 2020 (Enclosure 40);

SSPC’s Affidavit in Reply (2) affirmed by Kho Liang Kung on 16

(vi) SSPC’s Notice of Intention to Use Affidavit dated 23 April 2021 (Enclosure 80);

(vii) SSPC’s Affidavit in Reply affirmed by Kho Liang Kung on 14 August 2020 (Enclosure 28);

(viii) SSPC’s Affidavit in Reply (2) affirmed by Kho Liang Kung on 14 September 2020 (Enclosure 37);

(ix) SSPC’s Affidavit in Support affirmed by Kho Liang Kung on 16 November 2020 (Enclosure 49); and

SSPC’s Affidavit in Reply affirmed by Kho Liang Kung on 5 January 2021 (Enclosure 59). [20] After having read the voluminous written submissions and heard the oral submissions and clarifications of counsel, I deferred my decision to deliberate on the lengthy and complex arguments advanced by the parties. [21] Now having duly done so, I furnish my decision below with the supporting grounds based on the evidence produced and the arguments that were canvassed before me as finally refined in counsels’ submissions from those made originally in the affidavits of the parties. Contentions and Findings [22] First and foremost, I noted that the Award of the Tribunal is also itself lengthy made up of 3,461 paragraphs and 4 Appendices. [23] In respect of the Applications, GKL advanced six heads of contentions to justify them, viz:

Specific Costs based on breach of public policy pursuant to ss.30(5) and/or 37 or 39(1)(b)(ii) of the AA;

(ii) Common Costs based on breach of public policy pursuant to ss. or 39(1)(a)(iii) and/or (1)(b)(ii) of the AA and/or excess of jurisdiction pursuant to ss. 37 or 39(1)(a)(v) and/or 30(4A) and/or 30(5) of the AA and/or breach of natural justice pursuant to ss. 39(1)(b)(ii) or s. 37(2)(b) of the AA;

(iii) Accommodation Vessel based on breach of public policy pursuant to ss. 37 or 39(1)(a)(iii) and/or (1)(b)(ii) of the AA and/or excess of jurisdiction pursuant to ss. 37 or 39(1)(a)(v) and/or 30(4A) and/or 30(5) of the AA and/or breach of natural justice pursuant to s. 39(1)(b)(ii) of the AA;

(iv) Limitation of Liability based on excess of jurisdiction pursuant to ss. 37 or 39(1)(a)(v) and 30(5) of the AA;

Handover Completion based on excess of jurisdiction pursuant to ss. 37 or 39(1)(a) (v) of the AA and/or breach of public policy pursuant to ss. 37 or 39(1)(b)(ii) of the AA and/or breach of natural justice pursuant to ss. 39(1)(b)(ii) or s. 37(2)(b) of the AA; and

(vi) Declaration of Set Off based on excess of jurisdiction pursuant to ss. 37 or 39(1)(a)(v) and/or 30(4A) and/or 30(5) of the AA and/or breach of public policy pursuant to ss. 37 or 39(1)(a)(iii) and/or

(1)(b)(ii) of the AA. [24] They are of course all opposed by SSPC as unmeritorious. In addition, SSPC pointed out that GKL does not seek to set aside/challenge the entirety of the whole of the Award but parts of it especially on common costs and certain specific costs counterclaims awarded in favour of SSPC. GKL does not also challenge the findings made in GKL’s favour in the Award. Principles of Law on Challenge against Arbitral Proceedings [25] It is apt that I first reproduce the following provisions of the AA:

Law applicable to substance of dispute …

The arbitral tribunal shall decide according to equity and conscience only if the parties have expressly authorized it to do so.

The arbitral tribunal shall, in all cases, decide in accordance with the terms of the agreement and shall take into account the usages of the trade applicable to the transaction.

Application for setting aside

An award may be set aside by the High Court only if-

the party making the application provides proof that-

a party to the arbitration agreement was under any incapacity;

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of Malaysia;

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party's case;

(iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

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

(vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or

the High Court finds that-

the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or

(ii) the award is in conflict with the public policy of Malaysia.

Without limiting the generality of subparagraph (1)(b)(ii), an award is in conflict with the public policy of Malaysia where-

the making of the award was induced or affected by fraud or corruption; or

a breach of the rules of natural justice occurred-

during the arbitral proceedings; or

(ii) in connection with the making of the award.

Where the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside. …

Grounds for refusing recognition or enforcement

Recognition or enforcement of an award, irrespective of the State in which it was made, may be refused only at the request of the party against whom it is invoked-

where that party provides to the High Court proof that-

a party to the arbitration agreement was under any incapacity;

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of the State where the award was made;

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party's case;

(iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

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

(vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or

(vii) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or

if the High Court finds that-

the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or

(ii) the award is in conflict with the public policy of Malaysia. … [26] Generally the application to set aside an arbitral award is not an appeal against the award as held by the Court of Appeal in Pembinaan LCL Sdn Bhd v SK Styrofoam (M) Sdn Bhd [2007] 4 MLJ 113 where Gopal Sri Ram JCA (later FCJ) held as follows: “ … a court while examining the objections taken to an award filed by an arbitrator is not required to examine the correctness of the claim on merits. The court cannot sit in appeal over the views of the arbitrator by re-examining and re-assessing the materials.” In other words, the court cannot re-hear the dispute or review the award on its rightness. I have recently in PWC Bina Sdn Bhd v Ideal City Development Sdn Bhd [2022] AMEJ 0147 reviewed and stated as follows on the law and jurisprudence as pronounced by the Malaysian appellate courts on setting aside of arbitral awards: "[23] The law on setting aside an arbitration award under the AA generally and specifically in relation to the now repealed s. 42 of the AA has been well encapsulated in the Federal Court case of Far East Holdings Bhd & Anor v Majlis Ugama Islam Dan Adat Resam Melayu Negeri Pahang & Other Appeals [2018] 1 CLJ 693 where Jeffrey Tan FCJ held as follows: "[111] Section 8 provides that "No court shall intervene in matters governed by this Act, except where so provided in this Act". That was read to mean "minimal intervention consistent with the policy underlying the UNCITRAL Model Law" (Perwira Bintang)... ... [114] AA 2005 is devoid of a provision in the words of s. 81(2) of the UK Arbitration Act 1996. But AA 2005 is nonetheless clear that "No court shall intervene in matters governed by this Act, except where so provided in this Act". Pertinent to "where so provided in this Act", AA 2005 provides for court intervention in the matters stated in ss. 10, 11, 13(7), 15(3), 18(8), 29, 37, 41, 42, 44(1), 44(4), 45, and 46 of AA 2005. "Where a party seeks intervention is one of those situations, the court is permitted to intervene only in the manner prescribed by the Model Law, and in the absence of any express provision the court must not intervene at all. By contrast, where the situation is not of a type to which the Model Law is addressed, the court may intervene or decline to intervene in accordance with the provisions of the relevant domestic arbitration law" (A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary by Howard M. Holtzmann & Joseph E. Neuhaus, published 1994 at 224). Accordingly, s. 8 "would... not exclude court intervention in any matter not regulated by [AA 2005]" (The Arbitration Act 2005 supra at 8.17); matters which are not governed by the Model Law include the following areas: the inherent jurisdiction in the court to grant an injunction to stay arbitral proceedings; and the whole topic of confidentiality of arbitral proceedings (for a non-exhaustive list of matters not governed by the Model Law, see A Guide to the UNCITRAL Model Law on International Commercial Arbitration supra at 218). [115] But "... in situations expressly regulated by the Act, the courts should only intervene where so provided in the Act..." (LW Infrastructure Pte Ltd v. Lim Chin San Contractors Pte [2012] SGCA 57 per Sundaresh Menon JA, as he then was, delivering the judgment of the court). Since the setting aside of an award is a matter governed by AA 2005, the court is permitted to set aside an award only in manner prescribed by AA 2005. The court is not permitted to set aside an award in manner not prescribed by AA 2005. 'Error of fact or law on the face of the award' is not prescribed as a ground for court intervention. Hence, under AA 2005, there is no jurisdiction to set aside an award on the ground of 'error of fact or law on the face of the award'. It is accepted that under AA 1952, the jurisdiction for court intervention stemmed from both common law and statute. But under AA 2005, "the common law ground of setting aside an award for 'error on the face of the award' no longer exists" (The Arbitration Act supra at 8.23(b)). ... [123] But under s. 42, "any party may refer to the High Court any question of law arising out of an award". Leave of the court is not a prerequisite. Given that leave is not required, a s. 42 reference on 'any question of law arising out of an award' is akin to an appeal on 'a question of law arising out of an award' in the United Kingdom, Singapore, Australia, New Zealand or Canada. The label of the application to court might be different. But both 'reference' and 'appeal' pertain to "question of law arising out of the award". In truth, a s. 42 reference is indistinguishable from an 'appeal on a question of law arising out of an award' under the UK Arbitration Acts of 1979 and 1996, the Singapore Arbitration Act 2001, the Australian uniform Commercial Arbitration Acts, the New Zealand Arbitration Act 1996, or the Canadian Commercial Arbitration Act 1996. Given the similarity in substance between the two, appeals in those jurisdictions, as opposed to applications for leave, are clearly persuasive on the interpretation of 'question of law' and 'arising out of an award' in s. 42. ... [150] "The question of law must be one of law and not fact" (The Arbitration Act 2005 supra at p. 198). "An error of fact alone is insufficient" (Dept of Education v. Azmitia [2015] WASCA 246 per Mazza JA). But there is no universal definition of 'question of law'. Nonetheless, from our survey of the authorities, we would conclude that one of the following, which is not an exhaustive list, would meet the paradigm of 'any question of law' in s. 42:

a question of law in relation to matters falling within (2) of Mustill J's three-stage test;

a question as to whether the decision of the tribunal was wrong (The Chrysalis);

a question as to whether there was an error of law, and not an error of fact (Micoperi): error of law in the sense of an erroneous application of law;

a question as to whether the correct application of the law inevitably leads to one answer and the tribunal has given another (MRI Trading);

a question as to the correctness of the law applied;

a question as to the correctness of the tests applied (Canada v. Southam);

a question concerning the legal effect to be given to an undisputed set of facts (Carrier Lumber);

a question as to whether the tribunal has jurisdiction to determine a particular matter (Premiums Brands): this may also come under s. 37 of AA 2005;

a question of construction of a document (Intelek). [151] Given that AA 2005 does not say so, we could not hold that a 'question of law' must be the same one which the arbitral tribunal was asked to determine (for the UK position, see s. 69(3)(b)) of the UK Arbitration Act 1996). [152] Section 42 allows any question of law arising from the award. 'Any question of law' is wider than 'a question of law'. Since so, it would seem that s. 42 contemplates a less narrow interpretation of 'question of law'. Unless opted in, s. 42 only applies to domestic arbitration. A less narrow interpretation of 'question of law' in s. 42, as we might have given it, would not widen court intervention in international arbitration. But 'a point of law in controversy which has to be resolved after opposing views and arguments have been considered' is not a 'question of law' within the meaning of s. 42. There would surely be 'a point of law in controversy' in every case. If 'a point of law in controversy' were a question of law, then there would be a 'question of law' arising in every award. And that, with respect, could not be right. [153] Where it is a question of fact, "The arbitrators (remain) the masters of the facts. On an appeal the court must decide any questions of law arising from the award on the basis of full and unqualified acceptance of the findings of fact of the arbitrators. It is irrelevant whether the court considers these findings to be right or wrong. It also does not matter how obvious a mistake by the arbitrators on issues of fact might be or what the scale of the financial correspondences of the mistake of fact might be. That is, of course, an unsurprising position. After all, the very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the courts. Parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators' award on the facts. The principle of party autonomy decrees that a court ought never to question the arbitrators' findings of fact." (the 'Baleares ' at 228). "... on findings of facts an arbitrator is the sole judge. Further, whether he drew the wrong inferences of facts from the evidence itself is not sufficient as a ground to warrant setting aside his award (see GKN Centrax Gears Ltd v. Matbro Ltd [1976] 2 Lloyd's Rep 555)" (Future Heritage Sdn Bhd v. Intelek Timur Sdn Bhd [2003] 1 CLJ 103; [2003] 1 MLJ 49 per Richard Malunjum JCA, as he then was). "... if an arbitrator had erred by drawing wrong inferences of fact from the evidence before him, be it oral or documentary, that in itself is not sufficient to warrant setting aside of his award. It would be contrary to all the established legal principles relating to arbitration if an award based upon the evidence presented were liable to be reopened on the suggestion that some of the evidence had been 'misapprehended and misunderstood' per Raja Azlan Shah J (as he then was) in Syarikat Pemborong Pertanian & Perumahan v. Federal Law Development [1969] 1 LNS 172; [1971] 2 MLJ 210" (Intelek Timur Sdn Bhd v. Future Heritage Sdn Bhd [2004] 1 CLJ 743; [2004] 1 MLJ 401 per Siti Norma Yaakob FCJ, as she then was, delivering the judgment of the court). [154] "It is essential therefore to understand the basic difference between appeals in the court system from subordinate courts, where issues of 'weight of evidence' are routinely addressed, and references under s. 42 of the Act, where the court has no jurisdiction to entertain arguments based on weight of evidence... 'the parties will not be allowed to circumvent the rule that the tribunal's findings of fact are conclusive by alleging that they are inconsistent or they constitute a serious irregularity or an excess of jurisdiction, or on the basis that there was insufficient evidence to support the findings in question. The argument that it is a question of law whether there is material to support a finding of fact is no longer available' (Russell on Arbitration (1997) at 8-057)" (The Arbitration Act 2005 supra at pp. 198-199). [155] At any rate, s. 42 only permits a reference on a discrete question of law. Under s. 42, there is no jurisdiction to deal with questions of fact. As Steyn LJ put it in The Baleares, "on an appeal the court must decide any question of law arising from the award based on a full and unqualified acceptance of the findings of fact of the arbitrators". The question of law must accept the findings of facts. Hence, all argument or debate on the findings of fact of the arbitrator, on the inferences drawn by the arbitrator from his findings of fact and or from the evidence could not and would not be entertained." (emphasis added) [24] Setting-aside an arbitration award under s. 37(1)(a)(iv) and (v) of the AA has been explained in the Court of Appeal case of Garden Bay Sdn Bhd v. Sime Darby Property Bhd [2021] 3 CLJ 751 by Azizah Nawawi JCA as follows: "[60] The other issue raised by the learned judge was whether the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration when the arbitrator decided that by conduct, the parties have accepted that Sime Darby's claim for rectification works is the sum retained as retention sum under the contract. [61] On the legal position, we agree that it is trite law that when parties refer their dispute to arbitration, the mandate of the arbitrator must be limited to the terms defined by the parties for him to exercise his jurisdiction. If the arbitrator strays from the confines of this mandate, he will be acting in excess of his jurisdiction, even though he may have the initial and primary jurisdiction to arbitrate between the parties." (emphasis added) [25] As to setting aside an arbitration award pursuant to ss. 37 (1)(b)(ii) and (2) of the AA, Ramly Ali FCJ held as follows in the Federal Court case of Jan De Nul (M) Sdn Bhd v. Vincent Tan Chee Yioun & Anor [2019] 1 CLJ 1; [2019] 2 MLJ 413: "[49] The term "public policy" is not defined in the AA 2005. However, the term appears in three different sections, namely of ss. 4, 37 and 39 of the AA 2005. As commonly used, the term "public policy" signifies some matter which concerns public good and public interest. It is a fundamental principle of justice in substantive and procedural aspects. [50] The High Court Judge expressed his view that in order for JDN to succeed in its complaint that the award was in conflict with the public policy of Malaysia, JDN must show that the most basic notions of morality and justice would be offended by the award and that the conflict is something clearly injurious to the public good in Malaysia. [51] "A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary " by Howard M Holtzmann and Joseph E Neuhaus (Kluwer, 1989) had highlighted the term 'public policy' as follows: "In discussing the term 'public policy, it was understood that it was not equivalent to the political stance or international policies of a State but comprised the fundamental notions and principles of justice. It was understood that the term 'public policy', which was used in the 1958 New York Convention and many other treaties, covered fundamental principles of law and justice in substantive as well as procedural respects." [52] The term "public policy" as appears in s. 37(1)(b)(ii) of the AA 2005 covers a scope of "public policy" elements as used generally. However, in s. 37(2)(b)(ii) the scope is more specific. It specifically 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. ... [55] Section 37(2)(b)(ii) of the AA 2005 provides that an award made by an arbitral tribunal would be in conflict with the public policy of Malaysia if a breach of the rules of natural justice occurred in connection with the making of the award. The circumstances stated in s. 37(2) are by no means exhaustive. Other appropriate circumstances 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 s. 37(2) of the AA 2005. However, it must be appreciated that the concept of public policy generally is itself a broad concept. But in applying the concept for the purpose of setting aside an award under s. 37 of the AA 2005, the concept of public policy ought to be read narrowly and more restrictively. 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. As clearly stated by the Court of Appeal in Sigur Ros (with which we agree): "The concept of public policy must be one 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." [56] Even though the court finds that a breach of the rules of natural justice has been established or that an arbitral award is in conflict with the public policy under s. 37 of the 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 an award under s. 37 is discretionary and will not be exercised automatically in every case where the complaints are established. (see: Kyburu Investment Ltd v. Beca Corporate Holdings Ltd [2015] 3 NZLR 644; Sigur Ros Sdn Bhd (supra). [57] The court must evaluate the nature and impact of the particular breach in deciding whether the award should be set aside under s. 37. The court must also consider the background policy of encouraging arbitral finality and minimalist intervention approach to be adopted in line with the spirit of UNCITRAL Model Law. The effect of ss. 8, 9, 37 and 42 of the AA 2005 is that the court should be slow in interfering with or setting aside an arbitral award. The court must always be reminded that constant interference of arbitral award will defeat the spirit of the AA 2005 which for all intent and purposes, is to promote one-stop adjudication in line with the international practice. (see: AJWA For Food Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395; Taman Bandar Baru Masai Sdn Bhd v. Dindings Corporations Sdn Bhd [2010] 5 CLJ 83; and Lesotho Highland Development Authority v. Imprigelo SpA & Others [2005] UKHL 43). In this regard, the court needs to recognise the autonomy of the arbitral process by encouraging finality; and its advantage as an efficient alternative dispute resolution process should not be undermined. [58] The scope of public policy ground for setting aside an arbitral award could only be invoked in deserving case ie, in instances where it appears a violation of the most basic notions of morality and justice. It covers fundamental principles of law and justice in substantive as well as procedural respect. Instances where the upholding of an arbitral award would shock the conscience, or clearly injurious to the public good, or wholly offensive to the ordinary reasonable and fully informed member of the public, had been held by courts in various jurisdiction to fall within the category of public policy ground for setting aside an arbitral award. Thus, instances such as "patent injustice", "manifestly unlawful and unconscionable", "substantial injustice", "serious irregularity" and other similar serious flaws in the arbitral process and award, would also fall within the applicable concept of public policy and therefore by virtue of s. 37(1)(b)(ii) of the AA 2005 when proven, can be a ground for the court to exercise its discretion to set aside the award. (see: Ajwa for Food Industries (supra) ). Such instances fall within "the basic and fundamental notions or principles of justice". The court must adopt the principle as laid down by Howard M. Holtzmann and Joseph E Neuhans as found in their commentary in "A guide to the UNCITRAL Model on International Commercial Arbitration: Legislative History and Commentary " (supra) "that the term "public policy" which was used in the 1958 New York Convention and many other treaties, covered fundamental principles of law and justice in substantive as well as procedural respects." The terms "patent injustice" or "substantial injustice" or "manifestly unlawful and unconscionable" as often used by the court in setting aside arbitral awards, 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 right of the applicant. (see: Soh Beng Tee & Co Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SLR 86)." (emphasis added) [26] Subsequently Vernon Ong Lam Kiat FCJ held as follows in the Master Mulia Sdn Bhd v. Sigur Ros Sdn Bhd [2020] 9 CLJ 213: "[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: 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; 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; Third, if the breach is relatively immaterial or was not likely to have affected the outcome, discretion will be refused; 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; Fifth, where the breach is significant and might have affected the outcome, the award may be set aside; 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; Seventh, the discretion given to the court was intended to confer a wide discretion dependent on the nature of the breach and its impact. Therefore, the materiality of the breach and the possible effect on the outcome are relevant factors for consideration by the court; and Eighth, whilst materiality and causative factors are necessary to be established, prejudice is not a pre-requisite or requirement to set aside an award for breach of the rules of natural justice. [54] Underlying these guiding principles is the policies and objectives of the New York Convention and the Model Law. As a matter of principle and policy, the courts will seek to support rather than frustrate or subvert the arbitration process. The role of courts in the arbitral regime in general is one of assistance supportive of the arbitral process and not one of interference with it. Bearing in mind the two primary objectives of the Model Law (respect for and preservation of party autonomy and ensuring procedural fairness), the courts do not review the merits of the arbitral tribunal's decision. [55] In the present appeal before us, the High Court had made a clear finding that there were the two breaches of the rules of natural justice. That finding stands unchallenged in the Court of Appeal. However, the High Court Judge declined to set aside the award on the ground that the respondent was not prejudiced by the breaches. The Court of Appeal set aside the award on the ground that once a breach of natural justice has been established, the whole award must be set aside; reading sub-ss. 37(1)(b)(ii) with 37(2) of the AA 2005. The Court of Appeal held that the terms of s. 37 do not appear to allow for severance, especially in view of the terms of sub-s. 37(3) read with sub-s. 37(1)(a)(v). [56] In our view, the High Court Judge adopted the Singapore position as propounded in Soh Beng Tee (supra) and subsequently adopted in AKN (supra) which requires an applicant to show "actual or real prejudice" in that "it must be established that the breach of the rules of natural justice must, at the very least, have actually altered the final outcome of the arbitral proceedings in some meaningful way". Whilst we appreciate the appellant's arguments that s. 37 should be interpreted in a manner consistent with the underlying policies and objectives of the New York Convention and the Model Law, the courts must be mindful against importing principles advocated by foreign jurisdictions without careful consideration of the foreign law in question and our AA 2005. In this respect, we are bound to agree with the submission of the respondent that the Singapore position is not applicable in Malaysia. We say this because sub-ss. 37(1)(b)(ii) and 37(2)(b)(ii) do not require prejudice to be established; unlike s. 48(1)(a)(vii) of the Singapore Act which requires the applicant to show that the rights of any party have been prejudiced. [57] The imposition of a requirement of prejudice narrows down what is intended to be a wide discretion. The Report of UNCITRAL on the work of its 18th session (3-21 June 1985), UN A/40/17, states at para. 303: It was understood that an award might be set aside on any of the grounds listed in paragraph (2) irrespective of whether such ground had materially affected the award. The learned authors of "A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary " (Kluwer Law and Business, 1989), after examining the legislative history of article 34 of the Model Law on the setting aside of awards, observed at p. 922: Prior to the Commission's deliberations, two delegations submitted written comments suggesting that even with this understanding as to Article 4, at least some procedural errors should be material to the result or serious in order for the award to be set aside. The Commission discussed this proposal at some length, during which it was suggested by the delegate who had been the chairman of the Working Group that the word "may" in the opening sentence of Article 34(2) provided the court with discretion not to set aside the award even if grounds for doing so were present. The Commission Report eventually concluded merely that "(1) It was understood that an award might be set aside on any of the grounds listed in paragraph (2) irrespective of whether such ground had materially affected the award. It is submitted that both of these statements are consistent with each other and with the text of the Model Law: as noted by the Commission Report, a non-material error can give rise to grounds for setting aside the award, but, as noted during the debates, a setting-aside court has discretion not to set aside the award when such grounds are present. [58] This reading is supported by the case law in New Zealand where the setting aside provision on the NZ Act mirrors s. 37 of the AA 2005. Like s. 37(2)(b) of the AA 2005, article 34(6)(b), Schedule 1 of the NZ Act does not stipulate the requirement of prejudice (Kyburn (supra ); Trustees of Rotoaira Forest Trust v. Attorney General [1999] 2 NZLR 452). To reiterate, these decisions make the following points. First, the imposition of a requirement of prejudice narrows down what is intended to be a wide discretion (Kyburn (supra) at p. 564); Second, provisions allowing for the setting aside of arbitral awards can be said to vest in the court a wide discretion to set aside awards. The question of whether an award ought to be set aside for breach of natural justice therefore does not turn on prejudice. It turns, instead, on amongst other things, the significance of the breach and the extent to which it might or may have affected the outcome of the arbitration. It is not necessary to show that the breach did in fact affect the outcome (Kyburn (supra) at p. 653). Procedural prejudice would be sufficient to ground an application to set aside (Rotaoira (supra) at p. 462). Fourth, there is no basis on which it can be said that the onus is on the applicant to show that the consequences of the breach are sufficiently material to warrant setting aside an award. The ordinary burden on an applicant cannot be elevated to a legal requirement to show that the outcome would be different had the breach not occurred (Kyburn (supra) at p. 654). Fifthly, materiality of the breach and the possible effect on the outcome are treated as relevant factors going to the exercise of the discretion, such as the likely costs of holding a re-hearing (Kyburn (supra) at p. 654). Lastly, prejudice, if it can be shown, would be material. However, no single factor is decisive or necessary for an award to be set aside (Kyburn (supra) at p. 654). Kyburn (supra) was cited with approval by this court in Jan De Nul (M) Sdn Bhd (supra)). We are in agreement with the view expressed by the Court of Appeal that the threshold under s. 37 is very low as compared to that under s. 42 of the AA 2005 (see para. [38] of the Court of Appeal's written judgment). [59] Although the court's discretion to set aside an award under s. 37(1) is unfettered, it must nevertheless be exercised with regard to the policies and objectives underpinning the AA 2005. In particular, due cognisance must be taken of the purposes of encouraging arbitration as a method of dispute resolution and facilitating the recognition and enforcement of arbitral awards..." (emphasis added). [27] Furthermore, Abdul Rahman Sebli FCJ held as follows concurrently in the Federal Court case of Pancaran Prima Sdn Bhd v. Iswara Bena Sdn Bhd and Another Appeal [2020] 9 CLJ 466: "[10] The principle is trite that courts do not exercise appellate jurisdiction over arbitration awards: See Pembinaan LCL Sdn Bhd v. SK Styrofoam (M) Sdn Bhd [2007] 3 CLJ 185; [2007] 4 MLJ 113. The only provisions in the Act that provide for the setting aside of domestic awards are s. 37(1) and s. 42(1) to (4) of the Act (before its deletion)...." (emphasis added) [27] In summary, it can be discerned from these appellate court case authorities that the sanctity of the arbitral award has time and again been preserved by the courts. Intervention is the exception rather than the norm. With the abolition of s. 42 of the AA, there can be no appeal whatsoever against any error in an arbitral award even on questions of law. The limited avenue of intervention under s. 37 of the AA is confined to grounds of non-arbitrability of the dispute, non-submission to arbitration by the parties, serious procedural injustice or an arbitral award made in conflict with public policy that manifestly shocked the conscience. This limited avenue of intervention is also applicable to a challenge made under s. 39 of the AA because the provisions therein are identical with those provided in s. 37 of the AA. Be that as it may, there is also s. 8 of the AA which provides as follows:

Extent of court intervention No court shall intervene in matters governed by this Act, except where so provided in this Act. In the recent Federal Court case of Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd & Another Appeal [2020] 4 CLJ 301, Nallini Pathmanathan FCJ stressed as follows: “This is more so in light of s. 8 of the Arbitration Act 2005 which prescribes a statutory non-interventionist approach by the courts, as well as the principles of party autonomy which underscore the law relating to arbitration.” [28] There is no doubt that this arbitral proceeding is not one of the ordinary size or scale of Malaysian arbitrations. There were 1,647 pages of pleading and submissions, 843 pages of joint statements of experts (not including appendices), 1,124 pages of GKL’s Expert Reports (not including appendices and exhibits) and 1,050 pages of SSPC’s Expert Reports (not including appendices and exhibits). The nature of the claims involved is technically complex as well as very substantial in quantum. [29] Pre-hearing communications as well as case managements were extensively conducted between the Tribunal and the parties. There were about 450,000 pieces of documentary evidence (almost 1 terabyte digitally). Subsequently in total 21 of 27 factual and 12 of 13 expert witnesses (involving technical, delay and quantification fields) were called before the Tribunal over the course of a three-week hearing. Additionally, the parties also entered into a Quantum Experts Access Agreement (“Access Agreement”) which granted the Tribunal the right to have direct access to the parties’ quantification expert witnesses for purposes of performing calculations premised on existing materials contained in their expert report. [30] For purposes of the Applications here, it seems to me that save on the dispute on handover completion in the Award, GKL focussed on other parts of the Award pertaining to the disputes on SSPC’s counterclaim for correction of constructional defects carried out on the Semi-FPS which was guaranteed by GKL to be free from defects. GKL’s contentions centred on the quantification of quantum awarded on several heads of SSPC’s counterclaim by the Tribunal. [31] The Applications here will consequently be determined in accordance with the six contentions advanced by GKL in paragraph [23] above seriatim premised on the nature and background of the arbitral proceeding as conducted and the settled law and jurisprudence on demur against arbitral awards.

Specific Costs [32] From my reading of the Award, the Tribunal’s findings on liability in respect of SSPC’s counterclaim are set out in paragraphs (981) to (2498) of the Award. Consequently, the detail findings on specific costs are seen in paragraphs (2502) to (2638) and (2933) to (2967) of the Award. There were many SSPC’s heads of counterclaim ranging from work done/defects claims category A to F and category G. [33] GKL complained that SSPC’s counterclaim for specific costs amounted to USD181,833,738.00 out of which the Tribunal awarded USD117,263,116.87 encompassing 64% of SSPC’s counterclaim wrongfully by way of using the methodology of sampling and extrapolation as well as applying 80:20 ratio in the sampling process. [34] In this regard, GKL contended the Tribunal exerted pressure that constituted duress and undue influence on both parties’ quantification expert witnesses who are principally Mr. Kevin Hazzlet and Robert Breeze representing GKL and Mr. Jon Prudhoe representing SSPC respectively whom assisted the Tribunal in its ultimate assessment and finding on the quantum to be awarded. This was according to GKL engineered by the Tribunal to ensure that the arbitral administration was more “manageable” despite Mr Hazlett’s and GKL’s objections and pleas for additional hearing dates. However, the Tribunal utilised ways to exert pressure in favour of sampling and extrapolation by way of indicating that it was unreasonable and not sensible for all details to be properly heard and explored as well as that in default of agreement, the Tribunal would engage a Tribunal appointed expert accordingly. [35] After numerous discussions between the Tribunal and the parties, the Tribunal on 29 May 2018 issued Procedural Order no. 5 relating to SSPC’s counterclaim directing, amongst others, as follows: “Claims for Work Done

In respect of the Respondent’s claims for Work Done, the Lead Technical Experts shall meet…as soon as possible to continue their discussions on the way in which the issues on the Work Done Claims can be narrowed so as to make the trial of the Work Done Claims manageable. In particular they are:

To consider the extent to which resolution of the Work Done Claims for the Respondent’s 12 examples can be used to resolve other claims or issues in relation to other claims;

To consider whether limited additional examples might assist in the resolution of other Work Done Claims or issues in relation to other claims;

To consider whether there are common liability, technical or other issues which can be used to assist in resolving other claims;

To consider the extent to which, the resolution of a number of major claims might be used to assist in the resolution of other minor claims (including consideration of the 80:20 rule);

To consider how the categorisation of the Work Done Claims might be further divided so as to assist in the resolution of other Work Done Claims;

To consider any other ways in which the issues in relation to the Work Done Claims can be narrowed and the trial of those claims made manageable; …”. [36] As the result, the parties’ experts were required to firstly group SSPC’s specific costs claims into four distinct categories, to wit:

preservation;

(ii) construction errors;

(iii) design errors; and

(iv) faulty equipment/materials. [37] According to GKL, the parties’ expert witnesses chose samples (“Examples”) in each category which made up as close to 80% value of the claim to be analysed the liability for the claim and to apply the remaining 20% to the other claims not so analysed. [38] Hence, Examples 1 and 2 of the preservation category were applied to 48% of the preservation minor claims including on balance piping without analysis. These were also applied to 64% of the constructional error minor claims without analysis. Finally, Examples 1, 3 to 5, 7 to 10, 12, 15, 16 to 18 were applied to 33% of the faulty equipment/materials category without analysis. [39] As the result, GKL concluded that the ultimate findings on liability and quantum of the specific costs by the Tribunal was unsatisfactorily made in denial of natural justice and that the resultant Award is in conflict with Malaysian public policy. With regard to the former, GKL reiterated that the aforesaid sampling and extrapolation methodology was wrongly imposed upon them under duress and undue influence by the Tribunal. As to the latter, GKL contended that the sampling and extrapolation methodology violated Article 5A of the Contract and s. 74 of the Contracts Act 1950 which permitted recovery of claims without requiring SSPC proving adequate direct causal linkage between the defect remediation and the resultant costs following Garden Bay Sdn Bhd v Sime Darby Property Bhd [2021] 2 MLJ 281 CA and Iso Technic Electrical Sdn Bhd v Calibre M & E Sdn Bhd [2017] 1 LNS 212. [40] SSPC in rebuttal counter-contended that the purported unsatisfactory portion which is contended by GKL seems to be confined to only the extrapolated specific claim costs of USD6,074,228.37 awarded for work done/defects claims Category A: specific costs (HOC - 2 to 20) (see paragraph (2502) item 20 of the Award) out of USD21,890,000.00 claimed by SSPC. [41] That notwithstanding, GKL’s alleged duress and/or undue influence is baseless because the parties’ expert witnesses are reputable and experienced practitioners in their own professional right to be unduly pressured to act accordingly. Additionally, the Tribunal has in fact adopted GKL’s position and submissions on extrapolation and sampling whereby this methodology was not adopted on claims that were not part or sufficiently connected on technical basis with the Examples. Furthermore, the Tribunal has also in fact taken a conservative approach by having followed GKL’s submissions in only the usage of the sampling and extrapolation on the minor specific costs claims where sufficient connection on technical basis had been established as presented in the parties’ First Technical Experts Joint Statement dated 7 May 2018, Second Technical Experts Joint Statement dated 29 May 2018, Third Technical Experts Joint Statement dated 27 July 2018 and/or Fifth Technical Experts Joint Statement 27 August 2018 accordingly. The 80:20 ratio was not applied to these minor specific costs claims. [42] More pertinently, SSPC stressed that GKL itself had agreed in the arbitral proceeding that sampling and extrapolation is legally permissible and the Tribunal is empowered to direct the sampling process to be carried out. In the Applications, GKL is now blowing hot and cold that it has been victimised by the Tribunal. [43] It seems to me that GKL has equated actionable duress and/or undue influence made by the Tribunal against the parties in the course of the arbitral proceeding as denial of natural justice. However, no direct case authority in point has been cited by GKL. [44] Under the law of contract generally, duress and undue influence has been codified as coercion and defined in s. 15 of the Contracts Act

Based on the case authorities of Mohd Fariq Subramaniam v Naza Motor Trading Sdn Bhd [1997] 3 CLJ Supp 249 and OCBC Securities (Melaka) Sdn Bhd v Koh Kee Huat [2003] 1 LNS 563 relied upon GKL, it can plainly be discerned that it is a formidable feat to prove actionable coercion. [45] I gathered that GKL and its expert witness were at all material times against the usage of sampling and extrapolation for establishing liability and quantification of the quantum of SSPC’s specific costs claims. GKL duly protested but was not heeded by the Tribunal. Hence, GKL had no other legal recourse available to it at the time but to continue to participate in the arbitral proceeding till completion as so coerced by Tribunal. [46] It is relevant to reproduce ss. 20, 21 and 47 of the AA which provide as follows:

Equal treatment of parties The parties shall be treated with equality and each party shall be given a fair and reasonable opportunity of presenting that party's case.

Determination of rules of procedure

Subject to the provisions of this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

Where the parties fail to agree under subsection (1), the arbitral tribunal may, subject to the provisions of this Act, conduct the arbitration in such manner as it considers appropriate. …

Liability of arbitrator An arbitrator shall not be liable for any act or omission in respect of anything done or omitted to be done in the discharge of his functions as an arbitrator unless the act or omission is shown to have been in bad faith. [47] In this context, I have further read paragraphs (226) to (369) of the Award on the procedures adopted particularly paragraph (276) and (351) of the Award that merit reproduction as follows: “(276) The Quantum Experts were able to narrow significant areas of quantum and to narrow many of the issues between them, particularly in their Seventh Joint Statement produced at the end of the Hearing. In addition, under the Quantum Expert’s Access Agreement between Mr Breeze, Mr Prudhoe, the parties and the Tribunal, the Quantum Experts produced confidential calculations based on their evidence, particularly in the area of overlap between the Variation Works Claim and the Work Done/Defects Claims. There were some aspects of the quantum on which they disagreed in terms of methodology and the Tribunal has had to determine a number of issues of principle. One those matters have been decided, based on their intimate knowledge of the figures, they have been able to agree the appropriate quantum.” and “(351) It follows that the Tribunal finds that there is no principle of substantive Malaysian law which establishes principles which the Tribunal must adopt. It is common ground that the Evidence Act 1950 does not apply to arbitration. It is also common ground that Article 27(4) of the KLRCA Rules confers on the Tribunal the discretion to determine the admissibility, materiality, relevance and weight of the evidence presented by GKL and SSPC. That is the approach which the Tribunal has taken in this Award, assessing the evidence, in accordance with submissions made by the parties.” [48] Thus, the Tribunal is the master of its own procedure in the arbitral proceeding between the parties. Based on the chronology of events that took place in the arbitral proceeding as set out in the Award, I find that the Tribunal has as a matter of fact afforded both the parties a fair and reasonable opportunity to present their respective case within the applicable rules of procedure from an objective standpoint. By a fair and reasonable opportunity as provided in the AA, I do not think this is a carte blanche for parties to insist that they have unbridled chance and time to present their case as well as having it dealt by the Tribunal to their satisfaction notwithstanding that they are paying the fees of the Tribunal. [49] Moreover, I find that the approach adopted by the Tribunal requiring the parties’ respective quantification expert witnesses to use sampling and extrapolation methodology to deal and quantify the quantum on certain claims amongst the massive number of claims advanced by the parties prudent and practicable. The parties were nonetheless also given the alternative option of letting the Tribunal appoint the Tribunal’s expert to otherwise deal with such claims but the parties did not go along with the option. In my view, GKL ought to have accepted the suggested Tribunal’s expert if GKL is indeed absolutely against the sampling and extrapolation methodology. Moreover, I find the GKL so called protests by its expert quantification witness and counsel objections in the 22 May 2018 case management conference with the Tribunal are merely reservations at best rather than emphatic disapprovals. [50] In the premises, I am not satisfied that GKL has sufficiently led cogent evidence that it was in fact coerced into participating in the sampling and extrapolation methodology to determine liability and quantification of the quantum claimed by SSPC. There is no therefore no breach of natural justice because coercion has not been made out by GKL. In The Government of India v Cairn Energy India Pty Ltd & Ors [2014] 9 MLJ 149, Mary Lim J (now FCJ) plainly held as follows: "[123] In this case, since the Plaintiff is relying on sub-paras 37(1)(a)(iv) and (v); and (b(ii)), the Plaintiff has to provide proof... [124] It is not enough to make general allegations of such grounds without providing any evidence. It also goes without saying that the absence of such evidence must mean necessarily result in a refusal of the order(s) sought." [51] As to GKL’s other complaint that the Tribunal wrongly permitted recovery of SSPC’s claims without provision of adequate proof of any link between certain claimed costs and underlying defect remediation by adopting the sampling and extrapolation methodology, I find that GKL has only delved in generalities but not systematic specificities (particularly on lack of technical commonality) before me on exactly how the resultant assessment of each affected claim was flawed and therefore prejudiced GKL. In other words, I find that GKL has not led adequate cogent evidence to establish the cause and effect of each alleged breach of s. 30(5) of the AA by the Tribunal in failing to decide in accordance with the Contract. I am mindful that Article 5A of the Contract provides the requirement that SSPC can only recover all reasonable and proper documented direct costs but GKL has not satisfactorily convinced me that this was not done by the Tribunal just because the sampling and extrapolation methodology was used. In fact, I noted that the Tribunal stated as follows instead in paragraphs (2494) and (2595) of the Award contrary to that as generally alleged by GKL: “(2494) The Tribunal therefore finds that, with the exception of the Technical Expert’s findings dealt with below, there is no basis for it to either adopt a sampling basis by applying findings on an Example or a number of Examples to the remaining claims. Nor, in the absence of agreement by the Parties, does the Tribunal consider that it can apply a percentage success rate from the defect Examples in the categories to the remaining defects in those categories.

With some regret, the Tribunal therefore concludes that its findings in relation to the Work Done Claims must be limited to the findings which it has made on the particular Examples in the four categories, with extrapolation only in respect of particular findings by the Technical Experts but without general extrapolation to the remaining claims.” Hence as a matter of fact, the Tribunal only applied the sampling and extrapolation methodology to certain inevitable minor claims only. [52] It seems to me that GKL is presumptuous and over-expected the Tribunal to conduct the arbitral proceeding akin to Malaysian court civil litigation that adopts the Rules of Court 2012 and Evidence Act 1950 particularly strict proof on the quantification of the quantum of every item of claim in the traditional way. However, the assessment of defect remediation damages by sampling and extrapolation methodology has been even allowed by the English Technology and Construction Court in Amey LG Ltd v Cumbria County Council [2016] EWHC 2856 (TCC) and Standard Life Assurance Ltd v Gleeds (UK) (a firm) & Ors [2020] EWHC 3419 (TCC). [53] Thus, I see no reason why this sampling and extrapolation methodology with adequate safeguards built-in according to the circumstances of the case should be anathematic in Malaysia especially in an international arbitration here. It is axiomatic that arbitration just like civil action nowadays has to be disposed in a just, expeditious and economical manner too. [54] In the circumstances, I also find that GKL has failed to satisfy me that the usage of the sampling and extrapolation methodology by the Tribunal is injurious to public good that shocked my conscience. Simply put, the basic notions of morality and justice have not been violated to warrant my finding that the Award on specific costs conflicts with Malaysian public policy as set out in Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 2 MLJ 413 FC. I have also not detected that the Tribunal has acted in bad faith in any way.

Common Costs [55] Again from my reading of the Award, the Tribunal’s common costs detail findings are extensively seen in paragraphs (2639) to (2932), (2968) to (3092) and (3093) to (3129) therein. [56] According to SSPC, these common costs are those claimed by SSPC for indirect costs of offshore defect remediation of the Semi-FPS such as project management, logistics and personnel accommodation which were carried out simultaneously with the pre-commissioning and commissioning works. It was therefore necessary to allocate part of the common costs to defect remediation and another part to the originally planned pre-commissioning and commissioning works. In the arbitral proceedings, the common costs were divided into two categories for purposes of assessment, viz. time related common costs and non-time related common costs. The analysis and computation of the common costs are obviously the expertise of the parties’ quantification expert witnesses. [57] GKL in both Applications again contended that SSPC was never able to prove the causal link between the common costs incurred and the defects remediation as required by s. 74 of the Contracts Act 1950. In this regard, GKL alleged that SSPC did not link each item of costs incurred to a specific defect but based on the entire defect remediation generally as well as the costs incurred included those for SSPC’s own work. According to GKL, SSPC’s quantification expert witness Mr Jon Prudhoe had admitted to the non-time related common costs were allocated to both the originally planned pre-commissioning and commissioning works as well as defects remediation. This is arbitrary and unreliable as far as GKL is concerned but has been nonetheless accepted by the Tribunal. [58] As for the time related common costs, GKL contended the Tribunal wrongly decided based on SSPC’s methodology of claim. This methodology presumed that where a constructional defect caused a critical delay to the completion of the Semi-FPS, then the time related common costs associated with the critical delay are recoverable as provided in the Contract pertaining to work done/defects claims - Category H: common costs (time related) (HOC 21, 22.3(B), 23, 26.4(A) and (B) and 27.4). [59] GKL further contended that the Tribunal’s ultimate award of this time related common costs resulted in double recovery by SSPC. This is because the award of these costs in the aforesaid critical delay period for HOC 21, 22.3(B) and 26.4(A) and (B) overlapped with SSPC’s claim of liquidated damages for accommodation vessel for that period. In other words, the Award is bad for duplicity in respect of these claims. [60] In the premises, GKL concluded that the Tribunal acted in excess of jurisdiction by having so awarded the time related common costs together with liquidated damages based on case of Johawaki Development Sdn Bhd v Majlis Agama Islam Wilayah Persekutuan and another Summon [2020] MLJU 6060 and/or the Award is in conflict with Malaysian public policy following the Australian case of Indian Farmers Fertilizer Cooperative Ltd v Gutnick [2015] VSC 724. [61] Aside from time related common costs, GKL also contended that the Award on non-time related common costs for defect remediation is flawed in that the Tribunal on its own volition made an arbitrary adjustment of 50% to the sum claimed by SSPC. This sum claimed by SSPC is computed based on SSPC’s quantification expert witness Mr Jon Prudhoe’s CSU percentage analysis assessment methodology but he acknowledged and admitted at the arbitral proceeding that his computed sum could be inconsistent. GKL hence concluded that the claim is inaccurate and thus unreliable. However, the Tribunal had wrongly reduced SSPC’s claim instead of rejecting it altogether. Furthermore, GKL stressed that the parties were also deprived of the opportunity to submit on the same before the Tribunal decided and awarded accordingly. [62] Consequently, GKL concluded that the Tribunal acted in excess of jurisdiction by having so made the determination of the non-time related common costs based on equity and conscience without the express agreement of the parties contrary to s. 30(4A) of the AA. Reliance is made on the Court of Appeal case of Kosbina Konsult (K) Sdn Bhd (In Liquidation) v Madu Jaya Development Sdn Bhd [2019] 3 MLJ 471. By reason that the parties have been further deprived of submitting on the 50% apportionment by the Tribunal, GKL also concluded that the Tribunal’s findings were made in denial of natural justice because of the deprivation. [63] SSPC in rebuttal counter-contended that the parties’ respective quantification expert witnesses had both initially agreed on the critical delay analysis approach methodology to assess the common costs for heads of claim HOC 11.2, 21, 22.3, 23, 26.4, 27.4 and 28. They have also agreed that the vast majority of the necessary common costs of defect remediation are time related dependent upon the reasons for any delay in completing the works. However, GKL’s quantification expert witness suggested instead to assign various parts of SSPC’s claims as either time related or otherwise. Hence, the base figures of the properly documented costs for the various heads of claims under time related and non-time related common costs were agreed by both parties’ quantification expert witnesses on ‘figures as figures’ basis and this agreement was documented in the Quantum Experts Joint Statements produced to the Tribunal particularly that the work done/defects claims - Category H: common costs (time related) and Category I: common costs remedying defects are properly documented costs. The underlying figures and the supporting documentation of such costs were therefore no longer part of the dispute between the parties in the arbitral proceeding including on the relationship and allocation of the common costs to defects remediation. It also meant that the issue on causal link was already settled by them. The Tribunal was therefore only tasked to determine whether these common costs arose directly from the alleged defects and hence are reasonably incurred. According to SSPC, it is ridiculous in the circumstances for GKL to now persist on its assertion that the necessary allocation and causal linkage of the common costs to the pre-commissioning and commissioning works have not been carried out. [64] Next in respect of the relationship of the defect remediation vis a vis critical delay on time related common costs, SSPC contended that the ascertainment of the critical path and delay were also jointly assessed by the parties’ delay expert witnesses particularly on such periods of critical delay attributable to GKL. Separately, the parties’ technical expert witnesses assessed the responsibility for the alleged subsisting defects whilst the parties’ quantification expert witnesses computed a daily or monthly rate for the costs for each month that commensurate with the respective heads of claim. Based on all the input and information of these expert witnesses of the parties, the Tribunal ultimately determined and awarded the time related common costs which the Tribunal considered to be compensable to SSPC pursuant to Article 5A of the Contract. SSPC emphasized that GKL’s expert witnesses accepted the methodology on the ascertainment of the time related common costs but conceded during the arbitral proceeding that it could not be zero albeit they have originally assigned zero to it. Consequently, SSPC contended that it is outrageous of GKL to now assert that the Award on time related common costs involved other non-defect remediation as well as is a double recovery with SSPC’s accommodation vessel claim in particular. [65] As to the non-time related common costs, SSPC contended that its quantification expert witness Mr Jon Prudhoe used the CSU percentage analysis methodology to allocate the costs to defect remediation common costs claim based on database derived by him from various sources of the Semi-FES project raw information and data. Whilst GKL and its quantification expert witness have criticized the CSU percentage analysis methodology, they did not however provide an alternative assessment methodology to assist the Tribunal. [66] In the circumstances, SSPC concluded that it was appropriate for the Tribunal to make a 50% adjustment to the applicable non-time related common costs claim for defect remediation because the Tribunal accepted that the CSU percentage analysis methodology is a sound basis to ascertain the reasonable and direct costs of defect remediation as required by Article 5A of the Contract. Since the Tribunal also considered that GKL had identified weaknesses in the CSU percentage analysis, the Tribunal hence applied a 50% adjustment to reduce the amount assessed on the CSU percentage analysis. According to SSPC, the adjustment is well within the power and discretion of the Tribunal to determine the amount of quantum to be awarded. [67] Although there is limited permissible intervention of arbitral awards by the courts as I have summarised in paragraph [27] above, it is nonetheless also clear that the arbitral tribunal’s findings on the merits of the disputes whether of fact as well as of law (by reason of the repeal of s. 42 of the AA and agreement of the parties via Procedural Order no.1) are not susceptible to review and interference by the court. This has been plainly stated in the Federal Court case of Thai-Lao Lignite Co Ltd & Anor v Government of The Lao People's Democratic Republic [2017] MLJU 1196 where Jeffery Tan FCJ held as follows: "[82] Leave questions (iv) and (vi):... The courts below did not follow established authority (counsel cited The Government of India v. Cairn Energy India Pty Ltd And Anor [2012] 3 CLJ 423; [2011] 6 MLJ 441, Intelek Timur Sdn Bhd v. Future Heritage Sdn Bhd [2004] 1 CLJ 743; [2004] 1 MLJ 401, which were decisions of the Federal Court, and Cairn Energy India Pty Ltd & Anor v. The Government of India [2010] 2 CLJ 420; [2009] 6 MLJ 796; Hartela Contractors Ltd v. Hartecon JV Sdn Bhd & Anor [1999] 2 CLJ 788; [1999] 2 MLJ 481; AJWA For Food Industries Co (MIGOP), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395, which were decisions of the Court of Appeal) when it went into the merits of TLL-HLL's quantum of damages. An error of fact or law is not a sufficient ground to set aside an award is a well applied principle in the United Kingdom (Lesotho Highlands Authority v. Impregilo SpA [2006] 1 AC 221), Singapore (CRW Joint Operation v. PT Perusahaan Gas Negara (Persero) TBK; PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] 1 SLR 597; John Holland Construction & Engineering Pty Ltd v. Too Engineering Corp (Japan) [2001] 2 SLR 262), and New Zealand (Pupuke Service Station Ltd v. Caltex Oil (NZ) Ltd [2000] 3 NZLR). "Malaysian courts ought to ensure that their decisions are in line with the Model Law principles and within international arbitration framework... This appeal has far reaching consequences beyond the parties... it is a test of whether the Malaysian judiciary indeed recognises and supports arbitration in order to provide satisfactory resolutions to disputes... The parties... chose Malaysia as the seat... even though there were no factors connecting the parties nor their relationship... because they expected the Malaysian judiciary to uphold their bargain and the sanctity of the arbitral process." "Malaysian courts should resist the temptation to impose the application of Malaysian law... should also defer to the role of the arbitral tribunal and adhere to the role prescribed by the Model Law framework and uphold party autonomy and the sanctity of the arbitral process." ... [237] We agree that an error of fact or law is not enough to set aside an arbitral award...." (emphasis added) Subsequently this has been clarified by the Court of Appeal in Antara Steel Mills Sdn Bhd v CIMB Insurance Brokers Sdn Bhd [2015] 5 CLJ 1018 where Mohd Hishamudin Yunus JCA held as follow: “[18] In our judgment, with respect, there is no merit in the defendant's argument which raises the issue of causation in regard to the financial loss suffered by the plaintiff. In the first place, there is a misconception here on the part of the defendant as well as on the part of the learned Judicial Commissioner that the decision of the arbitral tribunal is appealable. Under the Arbitration Act, there is no right of appeal against the decision of the arbitral tribunal. The decision of the arbitral tribunal is final, binding and unappealable. Section 36 of the Arbitration Act provides: An award is final and binding

36.(1) An award made by an arbitral tribunal pursuant to an arbitration agreement shall be final and binding on the parties and may be relied upon by any party by way of defence, set-off or otherwise in any proceedings in any court.

The arbitral tribunal shall not vary, amend, correct, review, add to or revoke an award which has been made except as specifically provided for in section 35. [19] Thus, there is nothing creative or innovative on the part of the parties when they entered into an agreement at the commencement of the arbitration proceedings to state that the award of the arbitral tribunal is final, binding and unappealable. The parties are just restating what is already provided for in s. of the Arbitration Act. In fact this agreement to preclude the right of appeal by the parties is superfluous. In Pembinaan LCL Sdn Bhd v. SK Styrofoam (M) Sdn Bhd [2007] 3 CLJ 185; [2007] 4 MLJ 113 Gopal Sri Ram JCA (as he then was) in delivering the unanimous judgment of the Court of Appeal explained the effect of s. of the Arbitration Act in the following terms: [14] It is the unanimous view of all the authorities that the High Court in exercising its statutory jurisdiction under the Arbitration Act 1952 does not enjoy appellate jurisdiction. See, for example, Puri Construction Pvt Ltd v. Union of India AIR 1989 SC 777, where it was held that: ... a court while examining the objections taken to an award filed by an arbitrator is not required to examine the correctness of the claim on merits. The court cannot sit in appeal over the views of the arbitrator by re-examining and re-assessing the materials.” (emphasis added) Additionally in the recent Court of Appeal case of Garden Bay Sdn Bhd v Sime Darby Property Bhd (supra) which has also been relied by GKL, Azizah Nawawi JCA reiterated as follows: “[53] Therefore, the arbitrator has made a finding of fact that because both Garden Bay’s progress claims and the SO's interim payment certificates (Sime Darby) had included a percentage of the contract sum for retention sum, (although not provided for in the contract), the arbitrator then came to a conclusion that the said conduct showed the intention of the parties to accept this retention sum as a mode to allocate funds for rectification works. It is trite law that an arbitrator's findings of facts are immune from any interference from this court. In Chain Cycle Sdn Bhd v. Kerajaan Malaysia [2016] 1 CLJ 218, the Court of Appeal held that the arbitrator is the master of the facts, and that the courts should not review the award on its merits, akin to an appeal.” (emphasis added) [68] Thus in respect of GKL’s contentions on the lack or absence of proof of causal link in respect of the time related common costs as well as the non-time related common costs (including on the adoption of the CSU percentage analysis methodology) and the defect remediation, I find that they are all plainly findings of fact by the Tribunal based on the all evidential input of the parties’ factual as well as technical and expert witnesses. These findings of fact of the Tribunal are now incapable of review by the court based on trite appellate case laws. In any event, I do find that the Tribunal has improperly determined SSPC’s time related as well as the non-time related common costs claims upon my reading of the Award. In my view, the contentions of GKL in the circumstances are “off the subject” of the Tribunal having acted in excess of jurisdiction or that the findings of the Tribunal shocked my conscience which rendered the Award in conflict with the public policy of Malaysia as so conflated by GKL. Moreover, I find that the Tribunal in awarding common costs did not tantamount to rewriting the Contract contrary to that as asserted by GKL relying upon the Indian cases of Phonex Yule Ltd v Neyveli Lignite Corporation Limited (2014) 3 MLJ 28 and Ssangyong Engineering and Construction Co Ltd v NHAI (2019) 5 MLJ 7 SC. Also, there was no unjust enrichment that resulted too based on the Indian case of Patel Engineering Ltd v North Eastern Electric Power Corporation Ltd (Neepco) (2020) 7 SCC 167 SC. [69] As to GKL’s contentions on double recovery in respect of the time related common costs relating to HOC 21, 22.3(B) and 26.4(A) and (B) for the period between 18 October 2013 to 31 January 2014 amounting to RM30,857,072.84, I do not however find GKL has satisfactorily demonstrated to me in detail that this actually occurred. It is instead plain from paragraphs (3175) and (3176) of the Award as follows that the Tribunal was in fact cognisant of that danger of double recovery: “(3175) As submitted by GKL, the Tribunal considers that the carry-over works in terms of pre-commissioning and commissioning were necessary because of the delay in Handover Completion. If Handover Completion had been achieved by 18 May 2013, then there would have been no need for the carry-over pre-commissioning and commissioning work offshore. The Parties made provision in the Contract for Liquidated Damages, as referred to in SSPC’s claim for those damages. The Tribunal considers that, as submitted by GKL, the costs of AV up to February 2014 was a cost caused by the delay in Handover Completion and therefore SSPC is not entitled to claim unliquidated damages for delay in terms of the use of the AV up to February 2014 because such delay damages are only recoverable as Liquidated Damages.

However, from February 2014, the costs of the AV were caused by defect remediation works. However, having found that certain of the Work Done Claims were, in fact, matters for which SSPC were liable, the Tribunal considers that the recoverable costs of the AV after February 2014 should be less than the total costs of the AV and should be reduced to reflect the extent to which costs were incurred on remedial works for which SSPC was responsible rather than GKL.” In fact, these paragraphs must also be read with the following paragraphs

to (2667) of the Award to put it in context: “(2665) The Tribunal has considered this issue under head of Claim 24: onshore Recovery Plan. The Tribunal accepts that the provision for liquidated damages in clause 37 of Section II of the Contract prevents SSPC from recovering damages for delay caused by other breaches of Contract which cause delay to Handover Completion.

However, the liquidated damages provision does not cover time-related costs which have to be expended to remedy defects. Remedial costs are not damages for delay and as Article 37 states “Such Liquidated Damages shall be the sole and exclusive financial remedy for the COMPANY in respect of late HANDOVER COMPLETION. The time-related common costs are costs of remedial works and are not costs in respect of late Handover Completion.

Accordingly, the common costs are not subject to the USD 15 million cap on liability for liquidated damages under Article 37 of Section II of the Contract.” I therefore do not find it likely that there was double recovery in the time-related common costs claim allowed by the Tribunal as so alleged by GKL. [70] Nonetheless even if there is double recovery (if any), I find that the appropriate remedy is for GKL to invoke s. 35(1)(a) and/or (b) of the AA and/or Articles 37 to 39 of the KLRCA Arbitration Rules rather than or prior to commencing these Applications; see JY Creative Sdn Bhd v Meacs Construction Sdn Bhd [2022] 1 LNS 945. It is provided as follows in s. 35 of the AA:

Correction and interpretation of the award or additional award

A party, within thirty days of the receipt of the award, unless any other period of time has been agreed upon by the parties-

upon notice to the other party, may request the arbitral tribunal to correct in the award any error in computation, any clerical or typographical error or other error of similar nature; or

upon notice to and with the agreement of the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

Where the arbitral tribunal considers the request made under subsection (1) to be justified, it shall make the correction or give the interpretation within thirty days of the receipt of the request and such interpretation shall form part of the award.

The arbitral tribunal may correct any error of the type referred to in paragraph

(1)(a) on its own initiative within thirty days of the date of the award.

Unless otherwise agreed by the parties, a party may, within thirty days of the receipt of the award and upon notice to the other party, request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.

Where the arbitral tribunal considers the request under subsection (4) to be justified, it shall make the additional award within sixty days from the receipt of such request.

The arbitral tribunal may, where it thinks necessary, extend the period of time within which it shall make a correction, interpretation or an additional award under this section.

The provisions of section 33 shall apply to a correction or interpretation of the award or to an additional award. The KLRCA Arbitration Rules provide as follows:

Interpretation of the Award

Within 30 days after the receipt of the award, a party, with the notice to the other parties, may request that the arbitral tribunal give an interpretation of the award.

The interpretation shall be given in writing within 45 days after the receipt of the request. The interpretation shall form part of the award and the provisions of artcicle 34, paragraphs 2 to 6, shall apply.

Correction of the Award

Within 30 days after the receipt of the award, a party with notice to the other parties, may request the arbitral tribunal to correct in the award any error in computation, any clerical or typographical error or omission of a similar nature. If the arbitral tribunal considers that the request is justified, it shall make the correction within 45 days of receipt of the request.

The arbitral tribunal may within 30 days after the communication of the award make such corrections on its own initiative.

Such corrections shall be in writing and shall form part of the award. The provisions of article 34, paragraphs 2 to 6, shall apply.

Additional Award

Within 30 days after the receipt of the termination order or the award, a party, with notice to the other parties, may request the arbitral tribunal to make an award or an additional award as to claims presented in the arbitral proceedings but not decided by the arbitral tribunal.

If the arbitral tribunal considers the request for an award or additional award to be justified, it shall render or complete its award within 60 days after the receipt of the request. The arbitral tribunal may extend, if necessary, the period of time within which it shall make the award.

When such award or additional award is made. The provisions of article 34 , paragraph 2 to 6, shall apply. [71] I do not think that GKL has invoked s. 35(1) of the AA and/or Articles 37 to 39 of the KLRCA Arbitration Rules at all material times; thus the double recovery (if any) must stand as awarded by the Tribunal in the Award as an error of fact and/or law that is incapable of review and interference by the court. [72] Moving on to GKL’s allegation that the Tribunal wrongly adjusted the non-time related common costs by 50%, I again find this is plainly a finding of fact of the loss suffered by SSPC by the Tribunal based on the evidential input of the parties’ factual as well as technical and expert witnesses; see Lau Tiong Ik Construction Sdn Bhd v The Government of Malaysia [2008] 5 MLJ 604 and Calibre M & E Sdn Bhd v PT Cooline HVAC Engineering & Another Case (supra). As correctly put by SSPC, I find that the apportionment of 50% has been the proper exercise of the Tribunal’s discretionary power in discharge of its function of assessment of damages which is now incapable of review by the court based on trite appellate case laws. [73] I am mindful GKL has asserted that this act of apportionment by the Tribunal is a wrongful invocation of s. 30(4A) of the AA by deciding according to equity and conscience unilaterally without the express agreement of the parties; thus the Award has been made in breach of s. 30(5) of the AA. In this regard and as pointed out by SSPC, s.30(4A) of the AA is inapplicable by reason that it was only introduced in May 2018 via Arbitration (Amendment No. 2) Act 2018 after the arbitral proceeding had commenced on 2 September 2016. The parties had at the outset agreed that the law applicable to the arbitral proceeding is only the Arbitration Act 2005 as amended by Arbitration (Amendment) Act 2011. In this regard, I hold that the material date is the date of commencement of the arbitral proceeding by the Tribunal wherein s. 30(4A) of the AA is not yet in force. [74] Moreover, I find that the act of the Tribunal adjusting thereby reducing SSPC’s claim in the assessment of damages is in any event neither an act of equity and conscience nor failure to decide in accordance with the Contract contrary to GKL’s contentions. This sort of adjustment is common in the assessment of compensatory damages which is not a perfect science. It has been held by Mohd Ariff Yusof J (later JCA) in the Court of Appeal case of Goo Sing Kar v Dato’ Lim Ah Chap & Ors [2013] 3 MLJ 374 as follows: “[35] It is further a well-established principle that a court in assessing the quantum of damages to be awarded exercises a discretionary jurisdiction, for the quantification of damages cannot proceed on the basis of mathematical certainty.” Furthermore in the English House of Lords case of London & North Eastern Rly Co v BA Collieries Ltd [1945] AC 143, Lord Wright held as follows: “In my opinion there is a positive though contingent and future liability expressly imposed if the coal is worked. Its "value" is left to the arbitrator to decide, if the parties do not agree to it. As with other questions of compensation the code expressly leaves the value to be settled by arbitration, presumably by mining engineers or other experienced and instructed experts in the particular art and science. They must use their peritiam artis to evaluate the future contingencies and to picture the possibilities which appertain to the underground coal. They may think the risk of damage is too problematical to be given any but a nugatory value or they may value it at a substantial figure. There can be no certainty in such matters but they must do the best they can. Their decision for all practical purposes cannot be questioned. They must be left to decide according to their judgment of what would be done in the usual course of events, for instance, whether the particular volition or decision of the mine manager in the natural course of events would be that the seam should be worked at all, or if worked, when it would be worked, and so on. The problem is not unlike the problems which constantly arise at common law in estimating damages, for instance, damages for breach of contract or for tortious acts. These damages often have to be based on future probabilities which may include consequences such as the choice or volition, however capricious, of third parties.” (emphasis added) Also in the Australian High Court case of Commonwealth of Australia v Amann Aviation Pty Ltd [1991] 104 ALR 1, Mason CJ held as follows: “The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can… that the “assessment of damages does sometimes, of necessity involve what is guess work rather than estimation” … … However, to say as a general proposition that it is for the plaintiff to prove his damages is not to say that, in some instances, damage may not be inferred or presumed: see McGregor on Damages para 1785 in relation to damages in tort. Nor is it to fail to recognise that the quantification of damages is “in many cases no more than an approximation lacking in mathematical or economic accuracy or sufficiency” (Pennant Hills Restaurants, at CLR 636) or even that the assessment of damages “does sometimes, of necessity, involve what is guess work rather than estimation”: Jones v Schiffmann (1971) 124 CLR 303 at 308.” (emphasis added) See also Brunsfield Project Management Sdn Bhd v Ingeniur Bersekutu Consulting Engineers [2015] 1 LNS 1546 CA. [75] Be that as it may, I further find that by virtue of the letter and spirit of the unorthodox Access Agreement executed at the tail end of the arbitral proceeding demonstrated the parties’ waiver of want of normal strict proof of damages pursuant to s. 74 of the Contracts Act 1950. Moreover, I noted that the Tribunal has extensively consulted and conferred with the parties’ quantification expert witnesses pursuant to the Access Agreement as minuted and incorporated in the Appendix to the Award. The adjustment made by the Tribunal in the circumstances is in any event a permissible and appropriate course amongst other courses of measure of damages whilst determining the quantum of compensation payable based on the Contract. I noted that Varghese George JCA held as follows in the Court of Appeal case of Chain Cycle Sdn Bhd v Kerajaan Malaysia [2016] 1 MLJ 681 as follows: “[60] Having considered the respective submissions it was our considered view that the determination of the quantum of damages by the arbitrator was a determination of fact. The arbitrator in coming to his determination had addressed his mind to the right principles of law. There was a range of possible measures of damage recognised and available in law open to the arbitrator. The arbitrator had applied the test of what would be a reasonable compensation in all the circumstances of the matter considering the particular complexity attached to this case, namely the fact that technology inherent in the TOP plant exclusively belonged to the appellant and rectification or replacement would prove to be difficult and costly.” (emphasis added) Also in the New Zealand High Court case of Trustees of Rotoaira Forest Trust v Attorney-General [1999] 2 NZLR 452, Fisher J held as follows: “(g) On the other hand, an arbitrator is not bound to slavishly adopt the position advocated by one party or the other. It will usually be no cause for surprise that arbitrators make their own assessments of evidentiary weight and credibility, pick and choose between different aspects of an expert’s evidence, reshuffle the way in which different concepts have been combined, make their own value judgments between the extremes presented, and exercise reasonable latitude in drawing their own conclusions from the material presented.” [76] GKL nonetheless contended there was a breach of s. 30(5) of the AA and equated that to the Tribunal having acted in excess of jurisdiction or the Award rendered conflicted with the public policy of Malaysia. However, I do not find that that fitted the ambit of excess of jurisdiction wherein the terms of the Award were not within the scope of the arbitral proceeding. I also do not find that the Award was based on a “new difference” as alleged by GKL that involved some extraneous factors where parties were not invited to make a submission following Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd [2020] 9 CLJ 213 FC. Consequently, the resultant Award did not shock my conscience here to make it in conflict with Malaysian public policy on the specific facts and circumstances before me particularly because there is no breach of s. 30(5) of the AA as found in paragraphs [74] and [75] above. [77] Finally, I noted GKL further attempted to establish that there is denial of natural justice based on the Tribunal’s email dated 1 February 2021 addressed to the parties’ quantification expert witnesses on the 50% adjustment without giving them the opportunity to comment on it. In this regard, I find that there was no requirement for the Tribunal to do so pursuant to the Access Agreement. Moreover, I do not find that there is denial of natural justice in the circumstances and I am fortified by the following observations of Abdul Rahman Sebli FCJ in the Federal Court case of Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd [2020] 9 CLJ 466: “[56] In Bulfracht (Cyprus) Ltd v. Boneset Shipping Co. Ltd "The MV Pamphilos" [2002] Vol. 2 681, Colman J in dealing with an application under s. 68 of the English Arbitration Act 1996 had this to say: Applications under s 68 of the Arbitration Act 1996 to set aside or remit an award on the ground of serious irregularity affecting the proceedings or the award involve a two stage investigation: first, asking whether there has been an irregularity of at least one of the nine kinds identified in s. 68(2)(a) to (i), and secondly, asking whether the incidence of such irregularity has caused or will cause substantial injustice. With respect to the first stage, it has to be emphasised that the duty to act fairly is quite distinct from the autonomous power of the arbitrators to make findings of fact. Thus, whereas it would normally be contrary to the arbitrator's duty to fail to give the parties an opportunity to address them on proposed findings of major areas of material primary facts which have not been raised during the hearing or earlier in the arbitral proceedings, it will not usually be necessary to refer back to the parties for further submissions every single inference of fact from the primary facts which the arbitrators intend to draw, even if such inferences may not have been previously anticipated in the course of the arbitration. Particularly where there are complex factual issues it could often be impossible to anticipate by the end of the hearing exactly what inferences of fact should be drawn from the findings of primary fact which have been in issue. In such a case the tribunal does not have to refer back its evidential analysis for further submissions. A typical situation is where arbitrators arrive at a conclusion on an issue of expert evidence which differs to some extent from that put forward by either opposing expert. In many cases, arbitrators are appointed because of their professional legal, commercial or technical experience and the parties take the risk that, in spite of that expertise, errors of fact might be made or invalid inferences drawn without prior warning. It has to be emphasised that in such cases there is simply no irregularity, serious or otherwise.” (emphasis added) Additionally again in the New Zealand High Court case of Trustees of Rotoaira Forest Trust v Attorney-General (supra), Fisher J held as follows: “(h) Nor is an arbitrator under any general obligation to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he finally commits himself.” Also, it is gainful to note the following dicta of Sundaresh Menon CJ in the Singapore Court of Appeal case of AKN & Anor v ALC & Ors and other appeals [2015] 3 SLR 488 which has been adopted in Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd (supra) and Johawaki Development Sdn Bhd v Majlis Agama Islam Wilayah Persekutuan and another Summon (supra): “39. In the light of their limited role in arbitral proceedings, the courts must resist the temptation to engage with what is substantially an appeal on the legal merits of an arbitral award, but which, through the ingenuity of counsel, may be disguised and presented as a challenge to process failures during the arbitration. A prime example of this would be a challenge based on an alleged breach of natural justice. When examining such a challenge, it is important that the court assesses the real nature of the complaint…” Simply put, I am satisfied that the Tribunal had amply permitted the parties to make the necessary submissions and thereafter considered and determined them in the making of the Award. Denial of natural justice has therefore not been made out by GKL.

Accommodation Vessel [78] The Tribunal dealt with accommodation vessel in detail in paragraphs (3130) to (3181) of the Award under the Work Done/Defect Claims – Category J: Accommodation Vessel on my reading of the Award. [79] GKL contended that the Tribunal awarded the accommodation vessel costs claimed by SSPC without sufficient proof of causation linking these costs to defect remediation; hence an arbitrary assessment and thereby the Tribunal acted in excess of jurisdiction in breach of s. 30(4A) the AA. [80] GKL then specifically contended that the Tribunal wrongly and arbitrarily awarded USD80,657,771.00 for SSPC’s claim for accommodation vessel notwithstanding that SSPC’s project manager and factual witness Mr. Milan Hendrikse admitted that SSPC had received full costs recovery (including for fuel) of the accommodation vessel from Petronas under the PSC. As the result, SSPC’s claim for the accommodation vessel is unsustainable or has lapsed according to GKL. It follows that the Award unjustly enriched SSPC and this double recovery has been awarded in excess of jurisdiction and or conflicted with the public policy of Malaysia. Furthermore, GKL contended that by the Tribunal so awarding SSPC on its claim for accommodation vessel, the Tribunal made assumptions relating to the PSC without affording GKL the opportunity to review the same. As the result, GKL is denied natural justice by the Tribunal. [81] SSPC in rebuttal counter-contended that GKL’s contention of insufficiency of proof of causation is baseless just like in respect of the common costs. This is because there was the need to carry out work which was originally planned to be completed onshore but had to be moved offshore. Accommodation vessel is required to house the workers. The original work under the June and August 2013 agreements which concerned GKL’s work to achieve mechanical completion did not require usage of accommodation vessel. However when once the Semi-FPS was offshore, the accommodation vessel was hired and used by the personnel carrying out defect remediation as well as the carry-over pre-commissioning and commissioning work until the end of February 2014. Thereafter there was the need to extend the hire of the accommodation vessel a number of times because of the very substantial defect remediation. [82] According to SSPC, the Tribunal found that the dominant cause for the need to hire the accommodation vessel was for purposes of carry-over pre-commissioning and commissioning works up to February 2014 and defect remediation after February 2014. The Tribunal further found that the carry-over pre-commissioning and commissioning works were necessary because of GKL’s delay in achieving handover completion. If handover completion had been achieved by 18 May 2013 as envisaged, then there would have been no need for the carry-over of pre-commissioning and commissioning works offshore. The parties had made provision in the Contract for liquidated damages for delayed completion and the Tribunal hence found that the costs of the accommodation vessel up to February 2014 was a cost caused by the delay in the handover completion. SSPC is therefore not to be compensated in unliquidated damages for the use of the accommodation vessel for the delay up to February 2014 because such delay damages are only recoverable as liquidated damages. The Tribunal found that thereafter the accommodation vessel was needed for defect remediation and SSPC‘s compensation is in unliquidated damages. However by reason that the Tribunal also found that certain of the work done claims were in fact matters for which SSPC is liable, the Tribunal determined that the recoverable costs of the accommodation vessel after February 2014 should be less than the total costs of the accommodation vessel claimed and was reduced to reflect the extent to which costs were incurred on remediation for which SSPC was responsible. [83] As for the alleged double recovery because of recoverability of the accommodation vessel costs by SSPC from Petronas, SSPC contended that GKL has suspected of it right from the commencement of the arbitral proceeding but did not properly pursue the same as such seeking specific discovery and production of cogent documentary evidence in substantiation of GKL’s allegation. The burden of proof laid with GKL at all material times. [84] In the premises, I find that GKL’s contention on insufficiency of proof of causation or causal link between SSPC’s claim for the accommodation vessel and defect remediation concerned plainly findings of fact by the Tribunal based on the evidential input of the parties’ factual as well as technical and expert witnesses. They are now incapable of review by the court based on trite appellate case laws as set out in paragraph [67] above. In any event, I am satisfied that the Tribunal has properly determined SSPC’s accommodation vessel costs claim upon my reading of the Award. Furthermore, I do not find that the Tribunal acted in excess of jurisdiction in this respect contrary to that as asserted by GKL. It is simply baseless because GKL’s reliance on s. 30(4A) of the AA to mount its contention is inapplicable as found in paragraph [73] above. [85] Next as to GKL’s contention that there is double recovery for the accommodation vessel costs by SSPC because of pay-out for the same by Petronas separately, I noted that the Tribunal has found as follows in paragraphs (3177) and (3371)(2) of the Award: “(3177) The Tribunal noted that GKL has sought to defend the recoverability of the AV costs on a number of different grounds. First it asserts that the fact that Petronas may have borne these costs under the Production Sharing Contract means that any recovery against GKL would amount to double recovery and, although not clearly articulated as such, GKL seeks to rely on some form or fraud or failure to make disclosure. The Tribunal firmly rejects any allegations of fraud or failure to make disclosure. Further the question of how costs are dealt with as between SSPC and Petronas under the Production Sharing Contract does not prevent SSPC from making recovery of costs which GKL is liable under the Contract. The accounting procedures between Petronas and SSPC under the Production Sharing Contract and how those parties deal with costs does not affect GKL’s liability to SSPC under the Contract. and

(3371)(2) The Tribunal has found that there has been no “double recovery” in respect of Accommodation Vessel. [86] Consequently, I find that the Tribunal plainly made a conclusive finding of fact that there would be no double recovery by SSPC for the costs of accommodation vessel and this again must now be incapable of review by the court based on trite appellate case laws. The purported admission of SSPC’s project manager as alleged by GKL here must have been canvassed by GKL before the Tribunal but rejected it based on the Tribunal’s evaluation of all the evidence adduced contextually. There is thus also no denial of natural justice here and I reiterate that the Tribunal is not obligated to let parties further criticize the Tribunal’s evaluation on the evidence following the case of Trustees of Rotoaira Forest Trust v Attorney-General (supra). That notwithstanding, the Tribunal also went further and made a finding of law that even if there was a pay-out by Petronas to SSPC, it is nonetheless irrelevant vis a vis GKL’s liability to SSPC under the Contract. This is again also not subject to review by the court. As for double recovery due to co-mingled costs of the pre-commissioning and commissioning work, I reiterate paragraphs [69] to [71] above.

Limitation of Liability [87] From my reading of the Award, the Tribunal addressed this limit of financial liability on SSPC’s claims specifically in paragraphs (2652) to

(2674), (2681) to (2714) and (3202) to (3211) of the Award. [88] In this respect, GKL contended that the relevant contractual provision is Article 34.3 in Section II of the Contract which provides as follows:

34.3 Notwithstanding any other provision of this CONTRACT, the total liability of [GKL] to [SSPC] arising howsoever out of or in connection with the CONTRACT in respect of all claims, loss and/or expenses of every kind and nature whatsoever whether by way of indemnity or by reason of any breach of the CONTRACT (including without limitation any payment of Liquidated Damages) and/or in tort (including without limitation, negligence or gross negligence) or breach of any duty (statutory or otherwise), shall not exceed UNITED STATES DOLLARS TWO HUNDRED MILLION (USD 200,000,000.00) in aggregate. The provision of this Article shall not apply to any indemnities given by [GKL] under Article 29 headed INSURANCE BY [GKL], Article 23 headed TAXES AND TAX EXEMPTION CERTIFICIATES, Article 27 headed PATENTS AND OTHER PROPRIETARY RIGHTS, Article 28 headed LIABILITES AND INDEMNITIES, Article 32 headed CONFIDENTIALITY and Article 30 headed PERMITS, LAWS AND REGULATIONS. However according to GKL, the Tribunal awarded compensation to SSPC the sum of approximately USD422,000,000.00 which is in excess of USD200,000,000.00 without taking into account the limitation of liability prescribed in Article 34.3 of the Contract; thus acted in excess of jurisdiction by having breached s. 30(5) of the AA. [89] In rebuttal, SSPC counter-contended that the extent of applicability of Article 34.3 of the Contract had been duly determined by the Tribunal after considering the submissions of both parties and must not therefore now be disputed by GKL. [90] The applicability of Article 34.3 of the Contract, in my view, is a question of construction of the contract and this is a matter of law. The Tribunal determined as follows specifically in paragraphs (2711) to (2714) of the Award: “(2711) The Tribunal notes that Article 34.3 commences with very broad wording which relates to the total liability of the GKL to SSPC “arising howsoever out of or in connection with the CONTRACT in respect of all claims, loss and/or expense of every kind and nature whatsoever.” Article 34.3 then ends by stating that such liability shall not exceed USD200 million in aggregate.

The central question is the effect of the wording “whether by way of indemnity or by reason of any breach of CONTRACT (including without limitation any payment of Liquidated Damages) and/or in tort (including without limitation, negligence, or gross negligence) or breach of any duty (statutory or otherwise) which follows the commencing words. Are those words of limitation, limiting the liability of the GKL to SSPC to those claims or are they words which merely provide examples of the type of liability?

The Tribunal considers that they are words of limitation. The list commences with the words “whether by way of” but does not say after potential “or any other liability” or contain wording which shows that the list of liabilities is intended to include but not be limited by that list, such as “including without limitation” which it does use within the various heads of claim. As a result, the Tribunal finds that GKL’s liability is limited to USD200 million in respect of:

Liability by way of indemnity.

Liability by reason of any breach of the CONTRACT (including without limitation any payment of Liquidated Damages)

Liability in tort (including without limitation, negligence or gross negligence)

Liability for breach of any duty (statutory or otherwise).

It follows that the Tribunal does not consider that apart from the claim for Liquidated Damages under Clause 37.1 of Section II of the Contract, any of the claims made by SSPC are caught by the limit of liability of USD200 million under the provision of Clause 34.3.” [91] In the Court of Appeal case of Cairn Energy India Pty Limited and Anor v The Government of India [2009] 6 MLJ 795 (affirmed by the Federal Court in The Government of India v Cairn Energy India Pty Limited [2011] 6 MLJ 441), Suriyadi Halim Omar JCA (later FCJ) held as follows: “[25] There was nothing improper for the majority arbitrators to have been persuaded by the construction of the appellants, and could not be said to have acted so erroneously that a court must set aside that finding. It was just a question of the arbitrators choosing one reasonable construction over the other. It cannot be overly emphasized that a difference of opinion in the construction of the facts and provisions, and in light of the majority arbitrators' plausible conclusion, is insufficient ground to conclude that a manifest error of law had been established, which allegedly had caused an error on the face of the award.” (emphasis added) See also Kluang Health Care Sdn Bhd v Lee Yong Beng [2016] 1 CLJ

[92] However, the English House of Lords case of Compagnie Tunisenne de Navigation SA v Compagnie d’Armement Martime SA [1971] AC 52 relied by GKL on my careful reading did propound the proposition that the arbitral tribunal exceeded its jurisdiction or committed jurisdictional error by applying the wrong law. I also find the distinction between an error within jurisdiction and error in excess of jurisdiction committed by an arbitral tribunal in making an error of law patent on the face of the award by the Indian Supreme Court in Bharat Coking Coal Ltd v M/s Annapurnaq Construction (2003) (6) Supreme and National Thermal Power Corp Ltd v Gammon India Limited & Anor (2008) Arb LR 94 relied by GKL artificial and inappropriate to be applied here. This has also been decisively rejected by the Singapore Court of Appeal in PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2002] 1 SLR

[93] Furthermore, disregard or error of law that is patent on the face of the award or otherwise has no place in our Malaysian Model Law based jurisprudence on arbitration and challenging arbitral awards. This has been made discussed in Sigur Ros Sdn Bhd v Master Mulia Sdn Bhd [2018] 3 MLJ 608 CA including that judicial review Wednesbury principles sought to support the challenge could not be entertained; see also Hebei Import & Export Corp v Polytek Engineering Co Ltd. [1999] 2 HKCFAR 111, Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd [2010] SGHC 62 and Downer-Hill Joint Venture v Government of Fiji [2005] 1 NZLR 554. [94] I am nonetheless mindful that in the Indian Supreme Court case of Steel Authority of India Ltd v K.C. Budharaja, Government and Mining Contractor AIR (1999) SC 3275, the court intervened when the tribunal manifestly disregarded and departed from the contract made between the parties. There was serious disregard of authority and misconduct that bordered on mala fide therein. Court intervention in rare cases is however fact sensitive depending on the facts and circumstances of each case and I have in UDA Land Sdn Bhd v Puncak Sepakat Sdn Bhd [2020] MLJU 892 set aside the arbitral award by reason of conflict with the public policy of Malaysia when the tribunal manifestly disregarded a trite statutory interpretation of the Federal Court in determining the dispute. [95] Be that as it may, it is plain that the Tribunal’s findings as reproduced in paragraph [90] above are its finding of law on the construction of Article 34.3 of the Contract which I find is not subject to review here based on trite appellate case law and exclusion/repeal of s. 42 of the AA. Nonetheless after having carefully read the Award, I am satisfied that the Tribunal neither made an unsound finding nor manifestly disregarded the Contract as so alleged by GKL. The Singapore cases of CAJ and anor v CAI and anor [2021] SGHC 21 and CEF and anor v CEH [2022] SGCA 54 relied by GKL are distinguishable particularly on the facts in my view. [96] I am also aware GKL contended that the AA is a single piece of legislation; hence every section therein has an interplay with the other. However, GKL cannot in the circumstances attempt to use the “back door” approach of a breach of s. 30(5) of the AA per se that the Tribunal thereby acted in excess of jurisdiction; thus the Award is susceptible to challenge under s. 37 and/or 39 of the AA. There is a logic disconnect. According to SSPC, GKL is attempting to use s. 30(5) of the AA as a wedge or crowbar to pry open and enlarge the strictly limited or narrow grounds for challenge accorded by ss. 37 and 39 of the AA and this reliance on s. 30(5) of the AA has been squarely rejected in The Government of India v Cairn Energy India Pty Ltd & Ors [2014] 9 MLJ 149 and affirmed by the Court of Appeal in The Government of India v Cairn Energy India Pty Ltd & 2 Ors [2015] 1 LNS 1488. The position has not been altered in Far East Holdings Bhd & Anor v Majlis Ugama Islam Dan Adat Resam Melayu Negeri Pahang & Other Appeals [2018] 1 CLJ 693 FC relied upon by GKL. It seems to me that the appropriate remedy for breach of s. 30(5) of the AA is to commence a civil action against the Tribunal for breach of the arbitral appointment agreement made between the parties and the Tribunal if they had indeed done so in bad faith.

Handover Completion [97] My reading of the Award discloses that the Tribunal dealt with handover completion in paragraphs (370) to (524) of the Award. [98] GKL contended that it has in its pleading sought a declaration in respect of the exact date of handover completion under the Contract. Additionally, evidence was adduced as well as submissions were made by the parties to enable the Tribunal to determine the handover date. The significance of the handover completion date is for the determination of the period of and liabilities for payment of the Semi-FPS day rate between GKL, SSPC and Petronas. [99] However according to GKL, the Tribunal failed to satisfactorily determine and decide on the precise handover completion date. The Tribunal determined as follows in paragraph (523) of the Award: “(523) It follows from the Tribunal’s answers to the various issues that handover Completion was not achieved on 3 June 2013, 28 August 2013, 29 September 2013, 11 November 2013 or at any date until after 11 October 2014.” [100] Hence, GKL concluded that the Tribunal has therefore denied GKL natural justice that tantamounted to conflict with the public policy of Malaysia and/or acted in excess of jurisdiction by having failed to precisely fix the exact handover completion date. [101] SSPC in rebuttal however counter-contended that GKL did not specifically seek the precise date of handover completion in its arbitral proceeding pleadings for the purpose of determination by the Tribunal on the period and liabilities for payment of the Semi-FPS day rate between GKL, SSPC and Petronas but optional dates for purposes best known to GKL only. In fact, this contention now made by GKL is a departure of GKL’s pleaded case. That notwithstanding, SSPC stated that the handover completion for all intents and purposes has been determined by the Tribunal and understood from the phrase “until after 11 October 2014”. [102] I have meticulously reviewed the Tribunal’s findings in paragraphs

to (524) of the Award as well as the issues raised by the parties in the arbitral proceeding in their closing submissions and I am satisfied that the Tribunal has sufficiently dealt with them. It is plain that the Tribunal dismissed all the alternative handover completion dates suggested by GKL. The Tribunal’s ultimate finding of a post 11 October 2014 conclusion is adequate to dismiss GKL’s claim of USD135,600,000.00 being the lease rate for the period from 28 August 2013 to 10 April 2014. [103] Otherwise and just as in the case of the common costs claim, GKL must invoke s. 35(1) of the AA and/or articles 37 to 39 of the KLRCA Arbitration Rules at all material times; otherwise the Award must stand unabated and is incapable of review and interference by the court. I do not find that the aforementioned remedy provided in the AA and/or KLRCA Rules have been invoked at all material times. It again seems to me that this is another attempt by GKL to circumvent the same via the “back door” approach made out as denial of natural justice by the Tribunal that conflicted with the public policy of Malaysia or the Tribunal having acted in excess of jurisdiction. However, I find in any event that the requisite facts necessary to infer denial of natural justice or award made in excess of jurisdiction have not be borne out by GKL.

Declaration of Set Off [104] The Tribunal allowed the set off in paragraph (3461)(4) of the Award that reads: “(3461) Accordingly, on the basis of this findings in this Award and for the reasons as set out in this Award, the Tribunal determines, declares and awards, as follows: …

That SSPC is entitled to set-off the above claims against moneys owed by SSPC to GKL under the Contract, including but not limited to the Semi-FPS rate.” [105] In this respect, GKL contended that the Tribunal wrongful allowed the set off in excess of jurisdiction. According to GKL, the provision of set off in Article 24.9 of the Contract is narrow and specific. Article 24.9 reads as follows:

Terms of Payment

24.9 If at any time during the duration of the CONTRACT, the COMPANY provides any materials, EQUIPMENT or services of any nature, which form part of the obligation of the CONTRACTOR under the CONTRACT, then the COMPANY shall be entitled to recover from the CONTRACTOR by way of set-off in the manner prescribed by this clause. The COMPANY shall be entitled to exercise the right of set-off against any amount due to the CONTRACTOR under this CONTRACT or otherwise

any sum which it in good faith regards as being owed by the CONTRACTOR to the

such amount sufficient to indemnify the COMPANY completely against any liens against the CONTRACTOR. [106] Consequently, GKL contended that the Tribunal fashioned a different relief altogether from Article 24.9 of the Contract by allowing SSPC to set off all of SSPC’s awarded counterclaims from GKL’s awarded claims. In this regard, SSPC became entitled to set off approximately USD422 million with interest to run from that amount too. GKL further contended that if Article 24.9 had been strictly adhered, then the permissible set off by SSPC is confined to set off only about USD71 million in 17 instances of GKL’s claims. As a result, GKL concluded that the Tribunal again acted in excess of jurisdiction and/or that the Award conflicts with the public policy of Malaysia. [107] SSPC in rebuttal counter-contended that GKL’s contentions are baseless because SSPC has both the contractual right of set off in Article 24.9 of the Contract as well as equitable set off under the common law. Hence the declaration of set off by the Tribunal is no different from the findings and determination of other rights and entitlements of GKL and SSPC by the Tribunal. In addition, SSPC contended that GKL did not at all material times early during the arbitral proceeding sought that the Tribunal did not have jurisdiction to determine and make declaration of SSPC’s rights of set off against GKL’s claims as pleaded. [108] I have therefore reviewed the parties’ amended pleadings and submissions but find that the Tribunal’s determination in paragraph

(3461)(4) of the Award is within the parties’ arbitral reference to the Tribunal as well as within the following wide ambit phrase of Article 24.9, viz. “right of set-off against any amount due to the GKL under this Contract or otherwise” and/or SSPC’s right of equitable set off. I therefore find that the Tribunal neither acted in excess of jurisdiction nor that the Award conflicted the public policy of Malaysia at all. There is nothing there that met the high threshold of shocking my conscience. Conclusion [109] For completeness before I conclude, I noted that SSPC queried the stance taken by GKL in the Applications in attempting to sever or set aside parts but not the whole of the Award, to wit, only SSPC’s counterclaims but not GKL’s claims awarded by the Tribunal. Nonetheless it is plain from s. 37(3) of the AA and as interpreted by the Federal Court in Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd (supra) that only part of the award which contain decisions not submitted to arbitration may be set aside. In other words, I find and hold that if there is a finding arising from the Applications of the Tribunal having acted in excess of jurisdiction, then the Award may be set aside in part as the case may be; see also Ahmani Sdn Bhd v Petronas Penapisan (Melaka) Sdn Bhd [2015] 11 MLJ 32. [110] For the foregoing reasons I have elucidated above, I find and hold that GKL has not made out a meritorious case whether to set aside the Award in whole or in part pursuant to the Applications. In other words, GKL failed to establish before me that the Tribunal acted in excess of jurisdiction and/or denied GKL natural justice and/or made an award that conflicted with the public policy of Malaysia as claimed by GKL. In my view, all the complaints advanced by GKL in the Applications are actually its appeal against the Award. [111] As a result, both Applications are dismissed with costs of RM175,000.00 for each of the Applications subject to the usual allocator. Dated this 29 December 2022 t.t. LIM CHONG FONG JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF IN THE ENFORCEMENT DEFENDANT APPLICATION: CHRISTOPHER LEONG (JANET CHAI PEI YING AND EMILY LIM YIAN LING WITH HIM) SOLICITORS FOR PLAINTIFF IN THE ENFORCEMENT APPLICATION AND DEFENDANT IN THE SETTING ASIDE APPLICATION: CHOOI & COMPANY + CHEANG & ARIFF COUNSEL FOR THE DEFENDANT IN THE ENFORCEMENT APPLICATION: DATO’ DR CYRUS DAS (DATO’ LIM CHEE WEE, LEE SHIH, KWAN WILL SEN, GERALDINE GOON, MUAYYAD BIN KHAIRUL MANI AND LEE SUAN CUI WITH HIM) SOLICITORS FOR THE DEFENDANT IN THE ENFORCEMENT APPLICATION: LIM CHEE WEE PARTNERSHIP