MALAYSIAN APEX COURT DECIDES ON ARBITRABILITY OF DISPUTES INVOLVING A REMEDY OF STATUTORY FORECLOSURE, AND THE INCORPORATION OF ARBITRATION CLAUSES IN MULTI-CONTRACT TRANSACTIONS WHERE ONE CONTRACT CONTAINS AN ENTIRE AGREEMENT CLAUSE

Earlier this year, it was reported that the Malaysian Federal Court on 29 January 2018 decided an application to stay statutory foreclosure proceedings pursuant to a registered security granted over a parcel of land on the basis that the underlying dispute is subject to arbitration in Singapore.  The Federal Court made a ruling with potentially wide-ranging repercussions in the context of the scope of disputes considered arbitrable in Malaysia on the grounds of public policy, and the incorporation of arbitration clauses in multi-contract transactions.

In this post, we consider the decision of the Federal Court in Arch Reinsurance Ltd v Akay Holdings Sdn Bhd [2019] 1 CLJ 305 (“Arch Reinsurance“), its relation to its other apex decisions on arbitration, and its implication for arbitration in Malaysia.

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Evolving Asia, New Frontiers in Dispute Resolution: CIArb (Malaysia Branch) International Arbitration Conference 2018 Keynote Address

At the Chartered Institute of Arbitrators (Malaysia Branch) International Arbitration Conference 2018, Peter Godwin, the Managing Partner of Herbert Smith Freehills’ Kuala Lumpur office gave a keynote address. The topic of the address was “Evolving Asia, New Frontiers in Dispute Resolution”.

The text of Peter’s keynote is set out below.

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New KLRCA Rules 2017 – a step towards more efficient arbitrations in South East Asia

On 1 June 2017, the Kuala Lumpur Regional Centre for Arbitration (the "KLRCA") published its updated arbitration rules (the "KLRCA Rules 2017"). The KLRCA has seen a steep increase in cases over recent years reflecting Malaysia's growing importance as a regional dispute resolution hub. From 1978 to 2010, the KLRCA recorded only 22 cases but by 2016 this had risen to 618. The amount in dispute for international cases alone totalled over USD 295 million, the majority of which related to disputes from the construction and related sectors.

The KLRCA Rules 2017 apply, unless otherwise agreed by the parties, to all KLRCA arbitrations commenced after 1 June 2017. The KLRCA Rules 2017 replace the previous version of the rules which were last revised in 2013.

The changes implemented in the KLRCA Rules 2017 are designed to optimize the costs and efficiency of KLRCA proceedings and to improve the quality of arbitral awards. The changes are also designed to reflect international best practice in the case of multi-party disputes and introduce or bolster provisions for joinder of third parties and consolidation of proceedings. A summary of the key changes is set out below.

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Inside Arbitration: Issue #3 of the publication from Herbert Smith Freehills’ Global Arbitration Practice

We are delighted to share with you the latest issue of the publication from Herbert Smith Freehills' Global Arbitration Practice, Inside Arbitration.

In addition to sharing knowledge and insights about the markets and industries in which our clients operate, the publication offers personal perspectives of our international arbitration partners from across the globe.

In this issue:

  • Paula Hodges QC, Peter Leon, Craig Tevendale and Chris Parker share their insights into the development of commercial arbitration on the African continent and consider dispute resolution choices for parties negotiating Africa-related contracts.
  • We consider the development of arbitration in Rwanda and the Kigali International Arbitration Centre "in conversation" with KIAC's secretary general, Dr Fidèle Masengo.
  • Peter Godwin, Regional Head of Disputes Asia, reflects on his 16 years in Asia and the changes in attitudes towards dispute resolution amongst Japanese parties.
  • Dr Patricia Nacimiento, Thomas Weimann and Dr Mathias Wittinghofer give their view on whether Germany is on its way to becoming a true arbitration powerhouse.
  • Chris Parker, Elaine Wong, Gitta Satryani and Elizabeth Kantor provide a global perspective on the availability of security for costs and claim in international arbitration.
  • Dr Larry Shore discusses his path into public international law and the development of his interest in treaty disputes, as well as the differences in arbitration practice in the US and the UK and trends in US arbitration.
  • We highlight a number of key considerations for parties negotiating contracts with state and state-owned entities across the globe and provide comparative into state immunity in five key jurisdictions.

We are pleased to present our clients with an infographic providing a snapshot of our global arbitration practice in the two years 2014-2016.

The infographic details the successes of our growing practice and our huge geographical reach. The infographic is available at this link and at page 25 of Inside Arbitration.

The full digital edition can be downloaded in PDF by clicking on this link.

We hope that you enjoy reading Issue #3 of Inside Arbitration. We would welcome your feedback.