18 Sep Book review on Law, Practice and Procedure of Arbitration by Datuk Professor Sundra Rajoo — (2017) by John K Arthur LLB., BA., DipICArb Barrister and Member of the Victorian Bar FCIArb
Book review on Law, Practice and Procedure of Arbitration by Datuk Professor Sundra Rajoo — (2017) by John K Arthur LLB., BA., DipICArb Barrister and Member of the Victorian Bar FCIArb
Law, Practice and Procedure of Arbitration by Datuk Professor Sundra Rajoo (LexisNexis, 2nd ed, 2017) 1290 pp, hardback and online, ISBN/ISSN 9789674006099.
Law, Practice and Procedure of Arbitration offers a wide-ranging analysis and discussion of the principles, practice and procedure of international and domestic arbitration with a particular emphasis on Malaysia.
Datuk Professor Sundra Rajoo is the Director of the Kuala Lumpur Regional Centre for Arbitration (‘KLRCA’) and a Chartered Arbitrator.1
The text deals in a comprehensive manner with the foundational topics in arbitration,2 but with a greater emphasis on practice and the practical aspects of the arbitral process. With its easy to read style and in-depth coverage of the subject-matter, this text will appeal to practitioner and student alike. Its coverage of general law principles as they relate to the various topics covered in the book will be especially useful to non-lawyer arbitrators — for example, engineers, quantity surveyors, architects, or claims professionals.
The second edition of the text is published 14 years after the first edition appeared. The first edition dealt primarily with arbitration law, practice and procedure in Malaysia as it stood when the now repealed Arbitration Act 1952(Malaysia) was still in force. The second edition focuses on the present Malaysian Arbitration law, the Arbitration Act 2005 (Malaysia), which is substantially based on the United Nations Commission on International Trade Law (‘UNCITRAL’) Model Law on International Commercial Arbitration (‘Model Law’).3
Malaysia is making great strides towards becoming a leading hub for international arbitration within Asia. With the Model Law as its foundation, the Arbitration Act 2005 is generally consistent with the principles of international arbitration practice.4 Malaysian courts are supportive of arbitration,5 adopting a largely non-interventionist approach.6 The KLRCA with its large world-class facilities7 has been revitalised under the leadership of Professor Rajoo. Amendments to the Legal Profession Act 1976 (Malaysia) were enacted so that non-Malaysian qualified lawyers may appear in arbitral
- 1 See Kuala Lumpur Regional Centre for Arbitration (‘KLRCA’), Datuk Professor Sundra Rajoo <https://klrca.org/about-klrca-our-director.php>; Sundra Rajoo Arbitration Chambers (‘SRAC’), Profile <http://sundrarajoo.com/profile/>.
- 2 As does, eg, Nigel Blackaby et al, Redfern and Hunter on International Arbitration (Oxford University Press, 6th ed, 2015).
- 3 Which came into operation on 15 March 2006 repealing the Arbitration Act 1952 and was subsequently amended in 2011.
- 4 Global Arbitration Review, The Asia-Pacific Arbitration Review 2014 (September 2013) ch 13 (Malaysia).
- 5 Ibid.
- 6 Rabindra S Nathan, Arbitration Procedures and Practice in Malaysia: Overview (1 October2016) Thomson Reuters <https://uk.practicallaw.thomsonreuters.com/8-634-5916?transition
- 7 At the magnificent Bangunan Sulaiman, Jalan Sultan Hishamuddin, Kuala Lumpur.353
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proceedings in Malaysia either as counsel or arbitrator.8
The KLRCA Arbitration Rules were revised in 2013 to include emergency
arbitrator provisions, empowering the tribunal to award interest both before and after the award, enhancing the confidentiality of arbitrations, with a revised schedule of fees and administrative costs to maintain KLRCA’s claimed 20 per cent cost advantage over other similar institutions.9 The KLRCA Arbitration Rules have now been recently revised in 2017 including new provisions for joinder of parties, a new power of the Director of the KLRCA to consolidate disputes, and for the technical review of awards.10 The KLRCA Fast Track Rules were also revised in 2013 and the KLRCA i-Arbitration Rules 2013 (which provide for a shariah compliant arbitral process) were introduced. Recently the KLRCA, as a world first for an arbitration institution, launched its suite of Standard Form of Building Contracts.11
In this second edition, Datuk Professor Rajoo has expanded and updated the first edition with developments brought about by the Arbitration Act 2005.12While the text provides a thorough detailed guide on arbitration law and practice in Malaysia, it also makes frequent reference to cases in other Model Law Asia-Pacific countries, as well as extensive reference to English authorities (given their global prominence).
By far the most referenced arbitration law is of course the MalaysianArbitration Act 2005; but the most referenced foreign arbitration law is the English Arbitration Act 1996 (UK). The English Arbitration Act 1996, while heavily influenced by the Model Law, remains distinct.13 References also appear to the New Zealand Arbitration Act 1996 (from which the MalaysianArbitration Act 2005 drew inspiration), the Singapore International Arbitration Act, and a variety of arbitration laws from the region and globally. There are many references to a variety of institutional arbitration rules, the most prominent being the homegrown KLRCA Arbitration Rules. Extensive reference is made to the International Centre for Settlement of Investment Disputes (‘ICSID’) Arbitration Rules, the International Chamber of Commerce (‘ICC’) Rules of Arbitration, the London Court of International Arbitration (‘LCIA’) Arbitration Rules, the Singapore International Arbitration Centre (‘SIAC’) Rules, the UNCITRAL Arbitration Rules and
- 8 Global Arbitration Review, above n 4.
- 9 Ibid.
- 10 Effective from 1 June 2017 <https://klrca.org/KLRCA-Revised-Arbitration-Rules-2017>.
- 11 KLRCA, KLRCA Becomes First Arbitral Institution in the World to Launch a Suite ofStandard Form of Building Contracts (15 August 2017) <https://klrca.org/announcements-
- 12 SRAC, Law, Practice and Procedure of Arbitration 2nd Edition by Datuk Professor SundraRajoo [Lexis Nexis Edition, 2016] <http://sundrarajoo.com/portfolio-posts/law-practice-and-
- 13 Andrea Dahlberg and Angeline Welsh, ‘Arbitration Guide, IBA Arbitration Committee:England and Wales’ (International Bar Association, April 2012); Sara Lembo, The 1996 UK Arbitration Act and the UNCITRAL Model Law — A Contemporary Analysis (Doctoral Thesis, Universita’ Luiss Guido Carli Faculty of Law, 2010); Justin Williams, Hamish Lal and Richard Hornshaw, Arbitration Procedures and Practice in the UK (England and Wales): Overview (1 July 2017) Thomson Reuters <https://uk.practicallaw.thomson reuters.com/4-502-1378?transitionType=Default&contextData=(sc.Default)>.
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Model Law, the ICSID Convention, and not to mention the New York Convention.
The hardcover text includes an e-book which can be downloaded upon purchase of the hardcopy. The e-book includes a very helpful and functional ‘Search within Book’ facility, and links from the table of contents to the text — providing for convenient and easy navigation.
The text follows the usual general framework of a work of this kind with a Malaysian and practical focus.
The section on ‘Arbitration Agreements’ has a useful checklist for the contents of an arbitration agreement and deals in detail with the major topics of the separability of arbitration clauses (with reference to the seminal House of Lords’ decision in the Fiona Trust case),14 the jurisdiction of the arbitral tribunal and parties, and the scope of the arbitration agreement.
The part of the text entitled ‘Breach of Arbitration Agreements and Stay of Court Proceedings’ deals not only with stays of concurrent court proceedings (including applicable procedure and anti-suit injunctions) but conditions for obtaining a stay and the terms and effect of stays.
The section ‘Commencement of Arbitration & Establishment of the Arbitral Tribunal’ presents a detailed discussion of the issues pertaining to the initiation of the arbitral process and appointment of the tribunal, including detailed reference to the procedures under the Malaysian Arbitration Act 2005. Under the Malaysian Act, the Director of the KLRCA is the default appointing authority where the parties have failed to agree on an appointment.15 If the KLRCA Director fails to make an appointment within 30 days of being requested to do so, the parties may request the High Court to make the appointment.16 There is an examination of the removal of an arbitrator, and the remuneration of arbitrators.
The work offers many practical insights as to the conduct of arbitrationsand the procedure at the hearing, default by parties and its consequences, as well as party representation in arbitrations including the position of foreign lawyers who are not excluded from representing parties in international and domestic arbitrations in Malaysia.17
The discussion on Evidence in Arbitrations includes a general discussion followed by the position of the arbitral tribunal and the courts in Malaysia under the Arbitration Act 2005, including the power given to tribunals to order that any evidence be given on oath, or affirmation, the English position on evidence in arbitrations seated there and a discussion of the relevance of the International Bar Association (‘IBA’) Guidelines on the taking of evidence in international arbitration. The text discusses general issues of evidence, including evidential weight, witnesses, receiving and excluding evidence, as well as the interesting issue of the tribunal relying on its own knowledge and experience and the crucial issue of expert evidence.
There is a comprehensive analysis of the Powers, duties and liability of the
- 14 Fiona Trust & Holding Corporation v Privalov  4 All ER 951.
- 15 Arbitration Act 2005 (Malaysia) s 13; Sundra Rajoo, Law, Practice and Procedure ofArbitration (LexisNexis, 2nd ed, 2017) 296.
- 16 Arbitration Act 2005 s 13; Rajoo, above n 15.
- 17 Legal Profession Act 1976 (Malaysia) s 37A.
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Arbitral tribunal and of the support for arbitration provided by the Malaysian High Court.
As might be anticipated, there is a thorough examination of the Arbitral Award including the requirements of an award, mistakes and omissions, remedies, the effect of a valid award, interest and costs, settlement offers and the assessment of costs, with a chapter on each topic. Challenging an award, and applications to set aside awards, as well as award enforcement are also given detailed and learned consideration.
The principle enshrined under Malaysian law is the internationalist principle that ‘an arbitration award is final, binding and conclusive and can only be challenged in exceptional circumstances’.18 Topics covered include correction and interpretation of an award, and recourse against an award including applications to set aside an award under s 37 of the Arbitration Act 2005 which is modelled on art 34 of the Model Law. Examples of arbitral misconduct occasioning breaches of natural justice are provided.19
The vexed subject of conflict of laws in arbitration including the choice of law applicable to the arbitration agreement and arbitration proceedings is elucidated. As the author states, ‘it is common that arbitration clauses in international commercial contracts do not contain a specific provision defining the law applicable to arbitration agreements (and that) identifying (such) law, has proven to be a complex process’.20 This issue is also pursued in the Neil Kaplan Lecture by the Hon James Spigelman QC, ‘The Centrality of Contractual Interpretation — A Comparative Perspective’,21 who suggests that ‘an express choice [of law clause governing the arbitration agreement] is advisable in a case where the governing law of the agreement and the choice of the seat diverge’22 as ‘private international law rules for choice of law vary so much from one legal system to another, and the principles are so discretionary, that on many occasions different decision-makers quite reasonably, reach divergent conclusions’.23
The text provides a valuable introduction to three significant and specialized forms of arbitration: Investment Arbitration, Sports Arbitration and Maritime Arbitration.
The last section is devoted to arbitration in Malaysia, which includes a detailed examination of arbitration under the KLRCA Rules, and statutory adjudication under the Construction Industry Payment and Adjudication Act 2012 (Malaysia).24
- 18 Rajoo, above n 15, 737 referring to Mohamad Ariff Bin Md Yusof, ‘Challenge of Arbitral Awards’ in Tun Arifin Zakaria, Sundra Rajoo and Philip Koh (eds), Arbitration in Malaysia: A Practical Guide (Sweet and Maxwell, 2016) ch 14.
- 19 Rajoo, above n 15, 769.
- 20 Ibid 819.
- 21 James Spigelman, ‘The Centrality of Contractual Interpretation — A ComparativePerspective’ (Paper presented at the Neil Kaplan Lecture, Hong Kong, 27 November 2013)
- 22 Ibid 16.
- 23 Ibid 17.
- 24 See John K Arthur, ‘Judicial Review of Adjudication under CIPAA — An AustralianPerspective on the Obligation of an Adjudicator to Comply with Natural Justice’ (2014) 1(2)Malaysian Society of Adjudicators Newsletter (Aligning with CIPAA 2012!) 9 <http://msadj.org.my/downloads/newsletters/msa_newsletter_2014Q3Q4.pdf>.
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There are also useful appendices including the Arbitration Act 2005, and the KLRCA Arbitration Rules and i-Arbitration Rules, and the Chartered Institute of Arbitrators (‘CIArb’) International Practice Guidelines 2015–16.
A List of Legislation and Rules provides reference with web links to leading arbitration laws and soft laws, guidelines, codes and notes.
Legal and arbitration practitioners and students will be able to turn to Law, Practice and Procedure of Arbitration time and again for valuable statements of the law pertaining to arbitration, practice tips and summaries of procedure.Law, Practice and Procedure of Arbitration is a valuable and learned addition to the library of all those who practice in arbitration not just in Malaysia but also in other parts of Asia and globally.
John K Arthur