MALAYSIA: HIGH COURT FINDS THAT ARBITRAL TRIBUNAL HAS JURISDICTION TO DETERMINE INSOLVENCY SET-OFF

In UDA Land Sdn Bhd v Puncak Sepakat Sdn Bhd [2020] MLJU 892, the High Court was required to determine whether an award should be set aside because the sole arbitrator (“Arbitrator”) wrongly concluded that it had no jurisdiction to determine a counterclaim and insolvency set-off raised in the arbitration. The High Court set aside the award on the basis that the Arbitrator made an error of law in finding that it had no jurisdiction to hear the counterclaim and set-off.

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ENGLISH HIGH COURT FINDS THAT ARBITRATOR ERRED IN LAW IN FINDING EXPRESS “WITHOUT PREJUDICE” CORRESPONDENCE ADMISSIBLE ON COSTS BUT FINDS IMPLIEDLY “WITHOUT PREJUDICE” CORRESPONDENCE ADMISSIBLE

In Sternberg Reed Solicitors v Harrison [2019] EWHC 2065 (Ch), the High Court decided that an arbitrator had made an error in law in deciding that he could consider correspondence marked “without prejudice” when deciding costs.  However, correspondence that is impliedly “without prejudice” could be taken into consideration.  Arbitrators usually have broad discretion when considering costs but the established English law rules on privilege will still limit what evidence of the parties’ discussions is admissible.  The court’s decision on impliedly “without prejudice” correspondence is significant and may impact how parties to an arbitration (or litigation) react to settlement offers.

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SINGAPORE ARBITRATION UPDATE: A POTENTIAL CHANGE FOR ‘OPT-IN’ APPEALS FOR ERRORS OF LAW AND COURT CONFIRMATION OF THE CORRECT STANDARD TO BE MET TO RESTRAIN WINDING UP PROCEEDINGS WHERE A CLAIM IS SUBJECT TO ARBITRATION

Two recent developments in the Singapore arbitration landscape are of interest.  First, a written response from the Singapore Minister for Law confirms that the government is considering amending the International Arbitration Act (the “IAA”) to allow for appeals on errors of law on an opt-in basis. Second, a recent Singapore High Court decision confirms the standard to be met by a party seeking to restrain winding up proceedings when there is a valid arbitration agreement.  Underscoring both developments is a common objective of respecting party autonomy in arbitration.

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