that the arbitral tribunal S/N 1VdFz6mso0q375m1kKintw misunderstood the case presented and so did not apply its mind to the actual case of the aggrieved party; (b) that the arbitral tribunal did not mention the arguments raised by the aggrieved party and so must have failed to consider the latter's actual case; and (c) that the arbitral tribunal must have overlooked a part of the aggrieved party's case because it did not engage with the merits of that part of the latter's case. Although such arguments may be commonly raised, more often than not, they do not, in fact, amount to breaches of natural justice.” [47] Therefore, an arbitral tribunal is not expected to expressly mention or accept all the arguments raised by parties. The fact that certain points were not dealt with in detail does not necessarily mean there was a breach of natural justice, as long as the essence of the parties' cases was considered. [48] Here, the key issue submitted by the parties was whether TMF breached the enumerated clauses of the Custodian Agreement, chief of which was clause 3.1(ii) on 'Proper Instructions'. The parties' dispute over authorised person(s) is but one of the satellite factual arguments in support of their respective cases on the key issue. The Arbitral Tribunal clearly understood and grappled with the parties' arguments, but reasoned that it was not necessary to make a conclusive finding on authorised person(s) given the undisputed fact that instructions emanated from third party fraudsters. In the circumstances, this does not constitute a failure to consider the essence of TMF's case. On the contrary, it evinces that the Arbitral Tribunal duly directed its mind to the parties' submissions and evidence in determining the agreed Issue 1. S/N 1VdFz6mso0q375m1kKintw [49] Further, the Arbitral Tribunal is the master of facts and it is not within the remit of this court to review the merits of its factual assessment. The arbitral process would be rendered nugatory if a party could challenge an unfavourable award by nit-picking the tribunal's reasoning or alleging that it insufficiently addressed every argument. As cautioned by the Singapore Court of Appeal in Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 at [30]: “Each case should be decided within its own factual matrix. It must always be borne in mind that it is not the function of the court to assiduously comb an arbitral award microscopically in attempting to determine if there was any blame or fault in the arbitral process; rather, an award should be read generously such that only meaningful breaches of the rules of natural justice that have actually caused prejudice are ultimately remedied.” [50] Accordingly, I am satisfied that the Arbitral Tribunal had given due consideration to the parties' arguments on authorised person(s). There is no basis to conclude that the Arbitral Tribunal breached natural justice in this regard. No breach of natural justice [51] In light of my findings above, I hold that TMF has failed to establish any breach of natural justice by the Arbitral Tribunal, let alone one that is in conflict with the public policy of Malaysia under sections 37(1)(b)(ii) and 37(2)(b) of the AA 2005. S/N 1VdFz6mso0q375m1kKintw a) Parties had opportunity to present case [52] Fundamentally, natural justice requires that parties must be given a fair opportunity to present their respective cases and have their disputes adjudicated upon by an independent and impartial tribunal. However, as recognised in Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd [2021] 1 MLJ 1 (Federal Court) at [139], the concept of natural justice is not a panacea and its content is flexible and variable, depending much on the context and the factual matrix of each case, as different occasions call for different solutions or standards to meet the justice of the case. The Federal Court stated: “Like any other exercise of discretion, the discretion to set aside an award for breach of the rules of natural justice must be exercised judiciously and only when it is just to do so. The authorities are clear that in considering whether the discretion should be exercised, the court must undertake an evaluation of relevant factors such as those identified in Kyburn, amongst which would be the seriousness, magnitude or materiality of the breach, its nature and its impact, whether the breach would have any effect on the outcome of the arbitration and leaving room for 'casual breach or occasional error'.” [53] Here, I find that the parties had ample opportunity to ventilate their arguments at a 3-day evidentiary hearing before presenting their case theories in full through written submissions. TMF, in particular, does not dispute that it had “extensively” addressed the issue of authorised person(s) in its Post-Hearing Submissions and Submissions in Reply in S/N 1VdFz6mso0q375m1kKintw the arbitration. The Arbitral Tribunal carefully considered all the evidence and submissions in a detailed 78-page Partial Award. There is nothing to suggest that TMF was deprived of a fair hearing in any way. The mere fact that the Arbitral Tribunal did not wholly accept TMF's arguments does not ipso facto constitute a breach of natural justice. [54] In ABB AG v Hochtief Airport GmbH [2006] 2 Lloyd's Rep 1 (English High Court), in response to ABB AG’s argument that the tribunal decided the case on a basis not argued by the parties and without giving ABB AGG a reasonable opportunity to address the point, Justice Tomlinson held: “In my judgment all of the essential elements that might lead to that conclusion were fairly in play on to use a different expression, in the arena, ... In my judgment the tribunal has extracted an alternative case from the parties' submissions in a manner foreshadowed by the chairman's question...I do not consider that the duty to act fairly required the tribunal to refer back to the parties its analysis of the material and the additional conclusion which it derived from the resolution of arguments as to the essential issues which were already squarely before it.” [55] This supports the proposition that as long as the essential issues were fairly put before the tribunal based on the parties' submissions, the tribunal does not need to refer back every analysis or conclusion drawn from those issues, as long as they flow from the arguments made. S/N 1VdFz6mso0q375m1kKintw b) Tribunal entitled to make findings and conclusions [56] Further, it is trite that an arbitral tribunal is empowered to make its own findings and draw its own conclusions from the evidence presented, even if it does not accept either party's case in its entirety. In Trustees of Rotoaira Forest Trust v Attorney-General [1999] 2 NZLR 452, the New Zealand High Court stated: “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.” [57] There is no requirement for an arbitral tribunal to accept the conclusions being urged upon it by parties, neither must it consult with parties before finalising the award. Each case must be assessed within its own factual matrix: see Soh Beng Tee at [29]; Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 2 MLJ 413 at [58]. [58] On the facts, the Arbitral Tribunal found that the parties' contentions on authorised person(s) “miss the point” because it was an undisputed fact that the impugned instructions came from fraudsters and not RPL or its authorised agent. Based on this key finding, it concluded S/N 1VdFz6mso0q375m1kKintw that TMF had breached clause 3.1(ii) of the Custodian Agreement. The Arbitral Tribunal was perfectly entitled to reach this conclusion based on the primary facts, contemporaneous documentary evidence and admissions before it. The Arbitral Tribunal's chain of analysis, while perhaps not as granular as TMF would have preferred, does not evince any failure to consider the parties' arguments or engage with the essential issues. [59] As eloquently observed in Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd: “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.” [60] In Anwar Siraj v Ting Kang Chung [2003] 2 SLR(R) 287 it is stated by the Singapore High Court: “It is therefore plain that the Court’s supervisory role is to be exercised with a light hand and that arbitrators’ discretionary powers should be circumscribed only by the law and by the parties’ agreement.” [61] Therefore, the arbitrator's award is not to be picked upon just because he did not deal specifically with every argument canvassed upon him. Neither is the award to be S/N 1VdFz6mso0q375m1kKintw set aside just because his conclusion did not reflect counsels' submission before him. In the same vein, the court will not interfere with the arbitrator's assessment of evidence and his findings of fact. The reason is plain and obvious enough ie it is for the arbitrator, and not the court (unless so expressly empowered by the relevant statute such as the AA 2005) to go into the arena of factual evaluation and analysis. Any appeal process from the arbitrator's fact finding exercise must necessarily be limited. [62] As such, I find that TMF has not established any breach of the fair hearing rule or the audi alteram partem rule of natural justice in the making of the Partial Award. Threshold for setting aside not satisfied [63] Even assuming for the sake of argument that there was a breach of natural justice by the Arbitral Tribunal in failing to make a conclusive finding on authorised person(s), I am of the firm view that TMF has not crossed the high threshold for curial intervention under sections 37(1)(b)(ii) and 37(2)(b) of the AA 2005. a) Alleged breach not material [64] It is well established that not every breach of natural justice warrants setting aside of an arbitral award. The alleged breach must be more than a technical, minor or inconsequential breach. It must be a material breach in the S/N 1VdFz6mso0q375m1kKintw sense that it had a meaningful impact on the rights of the aggrieved party. The Singapore Court of Appeal held in Soh Beng Tee that courts should not scrutinise arbitral awards intently to find flaws, but should instead read them generously and only remedy meaningful breaches of natural justice that actually caused prejudice. [65] The court must undertake a qualitative assessment of the nature and gravity of the alleged breach in deciding whether to exercise its discretion to set aside the award, bearing in mind the policy of minimal curial intervention. This discretion should be exercised very sparingly and only in deserving cases where upholding the award would be wholly offensive to the ordinary reasonable and fully informed member of the public or shock the conscience: see Jan De Nul at [58]. [66] Applying these principles, I do not find that the alleged breach in the present case is material or serious enough to justify the exceptional remedy of setting aside. The Arbitral Tribunal's omission to conclusively determine the authorised person(s), even if erroneous, is at best a technical irregularity that did not result in any actual prejudice or undermine TMF's right to be heard. As elaborated below, TMF failed to establish that any further finding on this narrow factual issue would have altered the outcome of the Partial Award. The lack of a specific finding on authorised person(s) did not taint the arbitral process as a whole or render the award offensive to justice and morality. S/N 1VdFz6mso0q375m1kKintw b) No impact on outcome of Partial Award [67] Crucially, the Arbitral Tribunal's decision on Issue 1 that TMF breached clause 3.1(ii) of the Custodian Agreement was premised on the undisputed fact that the impugned instructions originated from third party fraudsters and not RPL or its authorised agent. This was the essential basis for the Arbitral Tribunal's conclusion, as evident from paragraphs 63 to 66 of the Partial Award. [68] TMF contends that if the Arbitral Tribunal had found Kiat and/or Keerati to be authorised person(s), then any instruction from an impersonator would still constitute valid 'Proper Instructions' under clause 10.2 of the Custodian Agreement. Hence, there would be no breach by TMF. However, I find this argument to be speculative at best. A conclusive finding on the identity of authorised person(s) was not strictly necessary for the Arbitral Tribunal to determine whether the impugned instructions came from RPL given the agreed common ground between parties that those instructions emanated from fraudsters. [69] Be that as it may, the Arbitral Tribunal had duly noted and summarised each party's position on authorised person(s) before finding that those arguments missed the point in light of the undisputed facts. This demonstrates that the Arbitral Tribunal did not ignore the issue, but determined that it was not critical to its analysis on breach. I am satisfied that even if a finding had been made on authorised person(s), it would S/N 1VdFz6mso0q375m1kKintw not have impacted the overarching basis and outcome of the Arbitral Tribunal's decision that the fraudulent instructions did not constitute 'Proper Instructions' from RPL under clause 3.1(ii). [70] As held by the Federal Court in Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd at [53(d)], “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”. This is plainly the case here. TMF had a full opportunity to advance its arguments and defences, including on authorised person(s), which were duly considered but not accepted by the Arbitral Tribunal. Any further determination on authorised person(s) would not have changed the core basis for the Arbitral Tribunal's conclusion that TMF breached the Custodian Agreement by acting on fraudulent third party instructions. No conflict with public policy [71] For completeness, I also find that TMF has fallen far short of establishing that upholding the Partial Award would be in conflict with the public policy of Malaysia. The public policy ground in sections 37(1)(b)(ii) and 37(2) of the AA 2005 encompasses only very limited categories of egregious situations such as fraud, corruption, bribery, breach of rules of natural justice and contravention of fundamental S/N 1VdFz6mso0q375m1kKintw principles of law and justice, both in substance and procedure: see Jan De Nul at [49]. [72] An arbitral award will not be set aside under this ground unless it would be wholly offensive to the ordinary reasonable and fully informed member of the public, shock the conscience, or be clearly injurious to the public good: see Jan De Nul. It covers only significant and material breaches, not casual or occasional errors in the arbitral process: see Soh Beng Tee. [73] Here, the alleged failure by the Arbitral Tribunal to decide on authorised person(s) falls far short of meeting this exceptional threshold. There is no suggestion of any illegality, impropriety, fraud or shocking of the conscience in the making of the Partial Award. TMF's complaint is a thinly disguised attempt to characterise its disagreement with the merits of the Partial Award as a breach of natural justice. However, the public policy ground is not license for the court to assume an appellate role over the arbitral tribunal. Even errors of fact or law would not engage this ground unless they meet the high threshold of violating the most basic notions of morality and justice: see Jan De Nul at [58]; Johawaki Development Sdn Bhd v Majlis Agama Islam Wilayah Persekutuan and another Summon [2020] MLJU 660 at [75]. S/N 1VdFz6mso0q375m1kKintw [74] In the circumstances, I find that TMF has failed to establish that the alleged breach was so grave that upholding the Partial Award would be clearly injurious to the public good or wholly offensive to the ordinary reasonable and fully informed member of the public. The setting aside application falls outside the narrow scope of sections 37(1)(b)(ii) and 37(2)(b) of the AA 2005. Conclusion [75] For the above reasons, I find that TMF has failed to establish any breach of natural justice by the Arbitral Tribunal, let alone one that meets the high threshold of being in conflict with the public policy of Malaysia under sections 37(1)(b)(ii) and 37(2)(b) of the AA 2005. The Arbitral Tribunal had properly confined itself to the agreed issues, duly considered the parties' arguments including those on authorised person(s), and reached reasoned conclusions based on the undisputed facts and evidence before it. Even if there was any irregularity in the Arbitral Tribunal's approach, which I do not find, TMF has not demonstrated that this was material or would have impacted the outcome of the Partial Award. This is plainly an attempt to relitigate the merits of the award under the guise of natural justice, which falls outside the narrow scope for curial intervention in arbitration. Accordingly, TMF's application to set aside the Partial Award is dismissed with costs. S/N 1VdFz6mso0q375m1kKintw OS 41 [76] RPL’s OS 41 is an application for the recognition and enforcement of the Partial Award. This is heard together with TMF’s application in OS 1 to set aside the Partial Award on the ground that it is in conflict with the public policy of Malaysia under section 37(1)(b)(ii) of the AA 2005. For the reasons set out in the above grounds, I have dismissed TMF's setting aside application. [77] The sole issue before me now is whether RPL has satisfied the requirements for recognition and enforcement of the Partial Award under section 38 of the AA 2005. RPL contends that it has met all the formal requirements and the court is bound to grant recognition and enforcement as TMF has not established any grounds for refusal under section 39(1) of the AA 2005. [78] Section 38(1) of the AA 2005 provides that an award made in an arbitration where the seat is in Malaysia shall be recognised as binding and enforced by entry as a judgment in terms of the award on an application in writing to the High Court, subject to the requirements in section 38 and the grounds for refusal in section 39. [79] Under section 38(2), the applicant must produce the duly authenticated original award or a duly certified copy of the award, and the original arbitration agreement or a duly certified copy of the agreement. If the award or arbitration S/N 1VdFz6mso0q375m1kKintw agreement is in a language other than Bahasa Malaysia or English, section 38(3) requires the applicant to supply a duly certified English translation. [80] Once these formal requirements are complied with, section 38(1) makes clear that the court shall recognise and enforce the award, unless the party opposing recognition and enforcement establishes one of the grounds for refusal under section 39(1)(a) of the AA 2005. The Court of Appeal in Tune Talk Sdn Bhd v Padda Gurtaj Singh [2019] 1 LNS 85 affirmed that so long as the formal requirements are met and there are no grounds under section 39, “it is incumbent on the court to grant recognition and enforcement of an arbitration award.” [81] RPL exhibited a copy of the Partial Award and the Custodian Agreement containing the arbitration clause in the Affidavit in Support affirmed on 8.12.2023. I am satisfied that these constitute duly certified copies that comply with section 38(2) of the AA 2005. No issue arises on the language of these documents. Accordingly, RPL has fulfilled all the formal requirements for recognition and enforcement of the Partial Award. [82] The burden then shifts to TMF to demonstrate a valid ground for refusing recognition and enforcement under section 39(1) of the AA 2005. In this regard, TMF's sole objection as advanced in OS 1 is that the Partial Award should be set aside under section 37(1)(b)(ii) as it is in S/N 1VdFz6mso0q375m1kKintw conflict with the public policy of Malaysia, in that the Arbitral Tribunal committed a breach of natural justice by failing to determine a critical issue on the identity of authorised person(s) to give instructions, before finding that TMF breached the Custodian Agreement. [83] However, for the grounds articulated in my decision on OS 1, I find that TMF has failed to establish any breach of natural justice by the Arbitral Tribunal, let alone one that meets the high threshold of being in conflict with the public policy of Malaysia. Given my dismissal of TMF's setting aside application, there remains no valid basis for this court to refuse recognition and enforcement of the Partial Award. [84] This position is well-illustrated by the High Court's decision in Open Type Joint Stock Co Efirnoye v Alfa Trading Ltd [2012] 1 MLJ 685. In that case, the defendant opposed enforcement of a Russian arbitral award on grounds that the arbitral procedure was not in accordance with the parties' agreement and that enforcement would be contrary to Malaysian public policy. The case involved disputes arising from a palm oil supply contract containing an alternative arbitration clause allowing either party to refer disputes to arbitration tribunals in Russia or Ukraine depending on which party initiated the claim. The court made clear that once an applicant has complied with the formal requirements under section 38, the onus shifts to the party opposing enforcement to satisfy the court why the award S/N 1VdFz6mso0q375m1kKintw should not be enforced. As Nallini Pathmanathan J (as she then was) held: “Given the foregoing, and the express words of s 39 of the Act, the onus of proof now shifts to the defendant who opposes the recognition and enforcement of this arbitration award to satisfy the court why the award should not be registered and enforced.” [85] TMF has not established any ground for refusal under section 39(1) of the AA 2005. In the circumstances, I am constrained to allow RPL's application to recognise and enforce the Partial Award, as section 38 of the AA 2005 makes clear that the court shall grant such recognition and enforcement once the prescribed formal requirements are met and absent any ground for refusal. The court's discretion to refuse enforcement is circumscribed by the express words of section 39. [86] For the above reasons, RPL's application in OS 41 for recognition and enforcement of the Partial Award is allowed with costs. [87] Accordingly, this court orders that the Partial Award (Save As To Costs) dated 14.8.2023, issued by Mr. Edmund J. Kronenburg in AIAC Arbitration Case No. AIAC/INT/ADM- 881-2020 between Robinson Planner Company Limited (Thailand) and TMF Trust Labuan Limited (Malaysia), with the seat of arbitration in Kuala Lumpur, Malaysia, be S/N 1VdFz6mso0q375m1kKintw recognised as binding and enforced as a judgment of this court pursuant to Section 38 of the AA 2005. Order for costs [88] Costs of RM20,000.00 are to be paid jointly for both OS 41 and OS 1 by TMF to RPL, subject to allocatur fees. 4 November 2024 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For TMF: Deepak Mahadevan with Faeza Suraya Roselan (Messrs Azmi Fadzly Maha & Sim) For RPL: Claudia Cheah (Messrs Skrine)