Malaysia legislation
Section 8
Section 8
The principal Act is amended by inserting after section 19
the following sections:
“Conditions for granting interim measures 19a. (1) The party requesting for the interim measures order under paragraphs 19(2)(a), (b) or (c) shall satisfy the arbitral tribunal that—
(a)
harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and
(b)
there is a reasonable possibility that the requesting party will succeed on the merits of the claim.
(2)
The determination on the reasonable possibility referred to in paragraph (1)(b) shall not affect the discretion of the arbitral tribunal in making any subsequent determination relating to the dispute.
(3)
In respect of the request for an interim measure order under paragraph 19(2)(d), the conditions in subsections (1)
and (2) shall apply only to the extent the arbitral tribunal considers appropriate.
Application for preliminary orders and conditions for granting preliminary orders 19b. (1) Unless otherwise agreed by the parties, a party may, without notice to any other party, make a request for an interim measure together with an application for a preliminary order directing a party not to frustrate the purpose of the interim measure requested.
(2)
The arbitral tribunal may grant a preliminary order provided that the arbitral tribunal considers that prior disclosure of the request for the interim measure to the party against whom the measure is directed risks frustrating the purpose of the interim measure.
(3)
The conditions specified in section 19a shall apply to any preliminary order provided that the harm to be assessed under paragraph 19a(1)(a) is the harm that is likely to result from the order being granted or not.
Specific regime for preliminary orders 19c. (1) Immediately after the arbitral tribunal has made a determination in respect of an application for a preliminary order, the arbitral tribunal shall—
(a)
give notice to all parties of the request for the interim measure, the application for the preliminary order, the preliminary order, if any, and all other communications, including by indicating the content of any oral communication, between any party and the arbitral tribunal in relation thereto; and
(b)
give an opportunity to any party against whom a preliminary order is directed to present its case at the earliest practicable time.
(2)
The arbitral tribunal shall decide immediately on any objection to the preliminary order.
(3)
A preliminary order shall expire after twenty days from the date on which the order was issued by the arbitral tribunal.
(4)
Notwithstanding subsection (3), the arbitral tribunal may issue an interim measure which adopts or modifies the preliminary order, after the party against whom the preliminary order is directed has been given notice and an opportunity to present his case.
(5)
A preliminary order shall be binding on the parties but shall not be subject to any enforcement by the High Court.
(6)
The preliminary order referred to in subsection (5)
shall not constitute an award.
Arbitration (Amendment) (No. 2)
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Modification, suspension or termination 19d. The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, upon an application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative.
Provision of security 19e. (1) The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.
(2)
The arbitral tribunal shall require the party applying for a preliminary order to provide security in connection with the order unless the arbitral tribunal considers it inappropriate or unnecessary to do so.
Disclosure 19f. (1) The arbitral tribunal may require any party to immediately disclose any material change in the circumstances on the basis of which the interim measure or preliminary order was requested or applied or granted.
(2)
The party applying for a preliminary order shall disclose to the arbitral tribunal all the circumstances that are likely to be relevant to the arbitral tribunal’s determination on whether to grant or maintain the order and such obligation shall continue until the party against whom the order has been requested has had an opportunity to present its case.
Costs and damages 19g. (1) The party requesting for an interim measure or applying for a preliminary order shall be liable for any costs and damages caused by the interim measure or the preliminary order to any party if the arbitral tribunal later determines that, in the circumstances, the interim measure or the preliminary order should not have been granted.
(2)
The arbitral tribunal may award such costs and damages referred to in subsection (1) at any point during the proceedings.
Recognition and enforcement 19h. (1) Subject to the provisions of section 19i, an interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued.
(2)
The party who is seeking or has obtained recognition or enforcement of an interim measure shall immediately inform the court of any termination, suspension or modification of that interim measure.
(3)
The court where recognition or enforcement is sought may, if it considers it proper, order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security or where such a decision is necessary to protect the rights of third parties.
Grounds for refusing recognition or enforcement 19i. (1) Recognition or enforcement of an interim measure may be refused only—
(a)
at the request of the party against whom it is invoked if the High Court is satisfied that—
(i)
such refusal is warranted on the grounds set forth in subparagraph 39(1)(a)(i), (ii),
(iii)
, (iv), (v) or (vi);
(ii)
the arbitral tribunal’s decision with respect to the provision of security in connection with the interim measure issued by the arbitral tribunal has not been complied with; or
Arbitration (Amendment) (No. 2)
(iii)
the interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the
State in which the arbitration takes place or under the law of which that interim measure was granted; or
(b)
if the High Court finds that—
(i)
the interim measure is incompatible with the powers conferred upon the Court, but the Court may decide to reformulate the interim measure to the extent necessary, without modifying its substance, to adapt it to the Court’s powers and procedures for the purposes of enforcing that interim measure;
or
(ii)
any grounds set forth in subparagraph 39(1)(b)(i)
or (ii) apply to the recognition and enforcement of the interim measure.
(2)
Any determination made by the High Court on any of the grounds in subsection (1) shall be effective only for the purposes of the application to recognize or enforce the interim measure.
(3)
The High Court where recognition or enforcement is sought shall not, in making any determination on any of the grounds in subsection (1), undertake a review of the substance of the interim measure.
Court-ordered interim measures 19j. (1) The High Court has the power to issue an interim measure in relation to arbitration proceedings, irrespective of whether the seat of arbitration is in Malaysia.
(2)
The High Court shall exercise the power referred to in subsection (1) in accordance with its own procedures in consideration of the specific features of international arbitration.
(3)
Where a party applies to the High Court for any interim measure and an arbitral tribunal has already ruled on any matter which is relevant to the application, the High Court shall treat any findings of fact made in the course of such ruling by the arbitral tribunal as conclusive for the purposes of the application.”.
Amendment of section 30