This update summarizes three arbitration disputes involving construction contracts. KUALA LUMPUR, Feb 28 — The High Court here today dismissed Datuk Seri Najib Razak’s application for a stay of proceedings of the Inland Revenue Board’s (IRB) suit seeking the former prime minister to pay RM1.69 billion in income tax, pending an appeal on the tax assessment to IRB. Stay is mandatory Curious and inquisitive. This was recognised in the case of Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 where the Federal Court at para [18] held that: “… It is therefore clear beyond doubt that there are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one. Notwithstanding the above, one of the most common special circumstances used to in an application for a stay is the issue that refusal to grant one would render an appeal nugatory. This Practice Note considers the question of when court proceedings can be stayed. There is no clear pronouncement from the courts. 13 KUALA LUMPUR: Former prime minister Najib Razak has applied for a stay of proceedings of the suit filed by Damansara MP Tony Pua for alleged misfeasance in public office related to the 1MDB case. ICLG - Litigation & Dispute Resolution Laws and Regulations - Malaysia covers common issues in litigation and dispute resolution laws and regulations – including preliminaries, commencing proceedings, defending a claim, joinder & consolidation and duties & powers of the courts – in 45 jurisdictions. In respect of this, the Federal Court agreed with the judge's finding that: "even though the placement slip does not expressly contain an arbitration clause, it is not a disputed fact that the placement slip makes reference to the expired policy number which contained an arbitration clause, and as such the said arbitration clause was effectively incorporated in the new policy by the reference made in the placement slip.". The Applicants’ applications for stay are based on the Applicants’ personal However, the grant of a stay of proceedings for arbitration does not occur automatically. Joinder of Causes of Action . In each case the court considered whether to grant a stay of proceedings pursuant to Section 10 of the Arbitration Act 2005. Stay of proceedings if prosecution of offence in altered charge requires previous sanction 162. A few weeks ago, in R. c. Goldberg, 2020 QCCQ 4548, the Court of Québec (Criminal and Penal Division) granted the most drastic remedy by ordering a stay of the charges brought against Bouclair Inc. (Bouclair), Peter Goldberg and Erwin Fligel, respectively the company's Chief Executive Officer (CEO) and vice-president, for alleged tax evasion offences. STAY OF ARBITRATION PROCEEDINGS MOHD SYAFIQ ROSDI A project report submitted in partial fulfillment of the requirements for the award of the degree of Master of Science (Construction Contract Management) Faculty Build Environment Universiti Teknologi Malaysia July 2011. i I’M A DREAMER, AND TODAY ONE OF MY DREAMS COMES TRUE. Dissatisfied with the Court of Appeal's decision, an appeal was made to the Federal Court. Recall of witnesses when charge altered 163. On this matter, the appellant claimed for indemnity under the policy, while the respondent sought to offer a lesser sum than the appellant's claim after an analysis of the claim and the terms of the policy. The decision in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd has clarified that once the parties agree to submit to arbitration in the event of disputes and put that agreement into writing, the courts will be less willing to allow one party to subsequently seek to depart from the arbitration agreement without sufficient justification. The debtor could be debt to individuals or companies A stay can be entered by the Crown under s. 579. Ever wondering why the law works the way it does, Iyas constantly pushes the limits of his curiosity to find the ever elusive “Answer” to all of his questions. KUALA LUMPUR, Dec 18 — The High Court here today dismissed an application by the wife of former Tabung Haji (TH) chairman Datuk Seri Abdul Azeez Abdul Rahim and their four children for a stay of the government’s suit to forfeit almost RM16 million of their … Your email address will not be published. 4 The plaintiff has appealed against my decision on the defendant’s stay 8. The court can subsequently lift the stay and resume proceedings based on events taking place after the stay is ordered. The two arbitration clauses provided as follows: However, the appellant submitted that the arbitration clauses were not part of the insurance contract between the appellant and the respondent and therefore there was no arbitration agreement in place and Section 10 of the act had no applicability. there must be a binding arbitration agreement or clause between the parties; and. The Federal Court's decision provides a useful reminder to parties that they are bound by what they have agreed to in the arbitration agreement, including reference to another document where those terms can be found, regardless of whether they go to the trouble of reading them. 1. The Court was guided by the Malaysian Court of Appeal decision in American International Assurance Bhd (another decision I had written on previously). In respect of loss of profits, "if any difference arises as to the amount to be paid under this certificate (liability being otherwise admitted), such difference shall be referred to the decision of an arbitrator". Case settlement conferences given a 'festive' touch - Hong Kong, Beware: High Court refuses permission to rely on new witness statement prepared part way through trial - United Kingdom, Parties can now request an extension to object to expert reports - Turkey, Clarification of rules on fast-track appeal proceedings - France, Court rules former director of AIAC's directorship is non-justiciable, Derivative proceedings: leave of court is substantive legal requirement, Competing claims in curial and arbitral proceedings: recent anti-arbitration injunction developments. Stay of Executions Proceedings Posted on July 27, 2020 by Ahmad Iyas Husni When a party is appealing a decision of a lower court to a higher court, it is trite that appeals do not operate as a stay of execution (see s.57 of the Court of Judicature Act 1964). Comment. The only way is for that party to apply to the court for stay the arbitration proceedings by way of an injunction. Scope of arbitration clause Standard Chartered Bank Malaysia Berhad Bhd v City Properties Sdn Bhd also dealt with a stay of proceedings pursuant to Section 10 of the Arbitration Act. For further information on this topic please contact Gan Khong Aik at Gan Partnership by telephone (+603 2201 1130) or email (khongaik@ganlaw.my). Section 10(1) reads: It should be noted that any application to stay should be done promptly so as to not be seen to be unfairly depriving a successful party of the fruits of their litigation (see Ajaib Singh v Jeffrey Fernandez [1971] 1 MLJ 139).Â. There are two appellate courts with appellate jurisdiction: the Court of Appeal and the Federal Court. The law cases show that it is made available only in limited circumstances. R. v. Goldberg, 2020 QCCQ 4548, para. 67/1965] PART I PRELIMINARY Short title and application 1. The grounds put forward in the applications for stay are not special circumstances which could warrant the Court to grant stay. Four days later, the defendant filed an application to stay the court proceedings under section 10(1) of the Arbitration Act 2005 (“Act”), on the basis that the subject matter of the dispute fell within the arbitration clause contained in clause 29.3 of the JVA (“Stay Application”). In respect of machinery breakdown, "if any difference arises as to the amount paid under this certificate (liability being otherwise admitted), such difference shall be referred to the decision of an arbitrator". (1) This case restates the Malaysian courts' position in respect of their intervention in arbitration. S. 4 of the Subordinate Courts Rules Act 1955 [Act 55] and iii. Given that the respondent had admitted its liability, the Federal Court was satisfied that the only dispute left was the issue of the amount or quantum to be paid. (2) At issue was a payment pursuant to a retention bond issued by the plaintiff bank in favour of the first defendant. Any attempt to limit the list or close a category would be to impose a fetter on the exercise of the discretion of the court whether to grant or stay an execution; making the discretion less of a discretion. Whether Section 106 of the Income Tax Act 1967 is contrary to Article 121(1) of the Federal 3. not operate as a stay. Halsbury’s Laws of England, 3rd Edition, Volume 17, paragraph 455, page 272 under the heading Grounds on which stay is granted states: —, “The court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing. A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial or other legal proceeding. 2. Jamil, in handing down his decision, said there are no special circumstances in which the court can allow the application to stay the forfeiture proceedings. The Federal Court's decision operates as a guideline, or more so as a precedent, for similar cases in the future. Save my name, email, and website in this browser for the next time I comment. Datuk Seri Abdul Azeez Abdul Rahim is pictured at the Kuala Lumpur Court Complex August 19, 2020. ― Picture by Firdaus Latif. 2. Separate charges for distinct offences 164. The Court of Appeal agreed with the high court and ruled that the court had no discretion but to grant a stay of the proceeding, save for the exception set out in Section 10(1) of the Arbitration Act 2005; hence, the appeal was dismissed unanimously. the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. Stay of proceedings if prosecution of offence in altered charge requires previous sanction 162. This is surely not what discretion is all about.”. 6. Separate charges for distinct offences 164. Footnotes. On August 8, last year, Najib filed an application for a stay of proceedings of the IRB’s suit, seeking him to pay RM1.69 billion in income tax, pending an appeal on the tax assessment to IRB. claims for declaratory orders and ancillary matters, such as fraud, damages, an account of monies received and inquiries into the monies remaining in the respondent's possession; suggestions that avoiding arbitration will save time, costs or expenses of the parties; and. Federal Court of Malaysia, which is the highest court. A) Where admiralty proceedings are stayed pursuant to subsection (1), the court granting the stay may, if in those proceedings 14 Laws of Malaysia A Whether it is unjust for the Plaintiff to file the current 4. S. 4 of the Subordinate Courts Rules Act 1955 [Act 55] and iii. Accordingly, Section 10(1) of the Arbitration Act applied and the respondent was entitled to a grant of stay. Learning and understanding the law and the Rules of the High Court related to stay of execution proceedings of the following: o Power to stay proceedings in an interpleader o Power to stay execution by writ of seizure and sale o Stay of proceedings pending appeal to judge in chambers Valid arbitration agreement However, the high court's judgment was appealed. Neither can one be accepted or rejected in favour of the other as they are inter-related.“. 470. The materials contained on this website are for general information purposes only and are subject to the disclaimer. In Malaysia, the main methods of enforcement are to issue a judgment debtor summons, garnishee proceedings, committal proceedings or an attachment of earnings against the defaulter. A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial or other legal proceeding. In explaining what special circumstances are, the Court of Appeal case of Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 MLJ 49 held at p67 that: “The approach taken by most judges appears to be that a successful litigant should not be deprived of the fruits of a judgment obtained in his favour, unless there are special circumstances (or special grounds) that justify a stay of execution to be granted. However, it should be noted that since the grant of a stay is a matter within the discretion of the court, then appellate intervention may only be warranted if it can be shown that the discretion was exercised contrary to established judicial principles. Subsequently, the appellant suffered substantial losses and damage as a result of a disruption to its smelting operation caused by an extensive power outage, which forced the plant to be shut down temporarily. You need to be logged in to make a comment. CIRCUMSTANCES, APPLICATION FOR STAY OF PROCEEDINGS DISMISSED GOVERNMENT OF MALAYSIA v. MNMN Lumpur I S S U E S Whether special circumstances exist to warrant the grant of a stay of proceedings? Federal Court's decision The court can subsequently lift the stay and resume proceedings based on events taking place after the stay is ordered. The party intending to refer the case to arbitration and for any disputes to be resolved therein shall make an application to the court via … Whether Section 106 of the Income Tax Act 1967 is contrary to Article 121(1) of the Federal 3. Therefore, such a stay does not undo the actions of the liquidators but only halts the proceedings. LAWS AND REGULATIONS GOVERNING ENFORCEMENT OF CIVIL CASE JUDGMENTS The general salient provisions governing enforcement of civil judgments in Malaysia are: i. S. 17 of the Courts of Judicature Act 1964 [Act 91]; ii. Stay of Proceedings by Crown. Facts The Benefits of Filing a Police Report for Fraud Cases, Preparing your Appeal Papers to be Filed in the Court of Appeal, Offer To Settle vs Trial: Alternatives to Court Drama, The Erinford Injunction: Maintaining Status Quo Pending Appeal. Federal Court of Malaysia, which is the highest court. 7. payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing”. The Federal Court decision provides a useful reminder that the principle of party autonomy in arbitration, unless there is cogent basis not to adhere to it, will be upheld by giving effect to the arbitration agreement as long as it is not null and void, inoperative or incapable of being performed. of the Korean rehabilitation proceedings and to stay all proceedings against it until 25 January 2017. 3. The clear difference between the parties regarding the amount to be paid as indemnity under the policy was sufficient to bring the dispute within the scope of the arbitration clause. In the recent case of Gulf Hibiscus Ltd v Rex International Holding Ltd & another [2017] SGHC 210, the Singapore High Court, affirmed on appeal, a decision granting a stay of proceedings in favour of arbitration upon the application of a non-party to the arbitration agreement, where arbitration proceedings were yet to have been commenced. Application for Stay. It is noteworthy that the courts are not only concerned about upholding Parliament's intention that a stay of proceedings pending reference to arbitration is mandatory unless otherwise exempted, but also to respect the core principle of party autonomy entrenched in Malaysian law. Stay of Proceedings by Crown The third and most recent decision enforced the two earlier decisions and reiterated the Malaysian courts' position on staying proceedings pending a reference to arbitration. This type of stay is discretionary and can be reversed at the discretion of the Crown. The second type of stay is one that is ordered by the judge either on application of the accused or in limited circumstances at the judge's own initiative. This means in effect that the court proceedings against the third parties or non-parties not caught by the arbitration agreement would be heard and determined first, followed by the arbitration proceedings … In relation to this, the Federal Court was satisfied that the requirements were fulfilled. This book provides a thorough discussion on the pre-arbitration relief, focusing on stay of court proceedings when an action is instituted in breach of an arbitration agreement, and anti-suit injunctions when an action is instituted or threatened to be instituted in a foreign court in … 161. However, it should be noted that the range of special circumstances remain an open list dependent on the specific circumstances of an individual case. On Aug 8 last year Najib filed an application for a stay of proceedings of IRB’s suit seeking him to pay RM1.69 billion in income tax, pending his appeal on the tax assessment to IRB. 1. In other words, special circumstances is the genus of which nugatoriness is a species. Committal Proceedings and Contempt of Court in Civil Practice 18 Sep 2019 - Wed / 1 day / 2:30pm - 4:30pm / Seminar Room, Mezzanine Floor, Wisma MCA, 163 Jalan Ampang, Kuala Lumpur Committal proceedings empower the courts to hold a person in contempt for refusing to obey an order. Postscript In Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd the appellant company owned and operated an aluminium smelting plant, whereas the respondent company provided insurance and takaful products. Based on the arbitration clauses, the respondent applied to the court for a stay of the proceedings pending reference to arbitration. Malaysia: Court Of Appeal Refuses Stay Of Proceedings Where Party Acts Inconsistently With An Express Reservation Of Right To Refer Dispute To Arbitration.Legal News & Analysis - Asia Pacific - Malaysia - Dispute Resolution CIRCUMSTANCES, APPLICATION FOR STAY OF PROCEEDINGS DISMISSED GOVERNMENT OF MALAYSIA v. MNMN Lumpur I S S U E S Whether special circumstances exist to warrant the grant of a stay of proceedings? MALAYSIAN LEGAL SYSTEM on civil & criminal exam notes 1. However, sometime a party may bring a dispute direct to litigation. According to the Federal Court, in order to grant a stay: The court is no longer required to consider whether a dispute exists when granting a stay. 5. I am of the opinion that the list of factors constituting special circumstances is infinite and could grow with time. The family is seeking for the forfeiture proceedings to be stayed pending the disposal of Azeez’s ongoing corruption trial at the Sessions Court. The court's decision was based on the fact that even if the terms of an arbitration agreement are only referred to in the overall agreement, they are still binding – as if they were written in the latter agreement. Former prime minister Datuk Seri Najib Razak has applied for a stay of proceedings of the suit filed by Damansara MP Tony Pua Kiam Wee for alleged misfeasance in public office related to the 1Malaysia Development Berhad (1MDB) case '”, Your email address will not be published. Should the court refuse your application for a stay, the only way for a stay to be implemented after that is to appeal to a higher court as held in the High Court case of MBf Insurnce Bhd v Syarikat Lektrik Heap Seng [2002] 2 MLJ 444. The court will consider whether other safeguards would suffice to prevent any prejudice arising from the parallel proceedings. The Federal Court affirmed the Court of Appeal's decision and made the following findings. 161. However, the courts will be willing to stay execution if it is apparent that special circumstances exists on the facts that warrant the grant of a stay. Power to stay proceedings (O. [Peninsular Malaysia—1 April 1958, L.N. (2) The court, in granting a stay of proceedings pursuant to subsection (1), may impose any conditions as it deems fit. LAWS AND REGULATIONS GOVERNING ENFORCEMENT OF CIVIL CASE JUDGMENTS The general salient provisions governing enforcement of civil judgments in Malaysia are: i. S. 17 of the Courts of Judicature Act 1964 [Act 91]; ii. Whether it is unjust for the Plaintiff to file the current The Federal Court has now found that the clear effect of Section 10(1) of the Arbitration Act 2005 is to render a stay mandatory if the court finds that all the relevant requirements have been fulfilled. In the Federal Court case of Hing Kim Pong v Teo Eng Jin [1980] 1 MLJ 43 on p 44: ‘On the other hand, it is the contention of respondent that the learned judge has unfettered discretion to grant a stay or not as long as he exercises his discretion judicially. The court ought to give a wide interpretation to the arbitration clause to serve, as far as the language used by the parties in the arbitration clause will permit, the commercial purpose of the arbitration clause. Government Proceedings 7 LAWS OF MALAYSIA Act 359 GOVERNMENT PROCEEDINGS ACT 1956 An Act relating to proceedings by and against the Federal Government and the Governments of the States. The High Court ordered that: 2. This has helpfully given parties to arbitration comfort that the courts will give effect to the clear intention of Parliament, as enunciated in the statute, to uphold the party autonomy principle by ensuring that no party is allowed to depart from what they have agreed to voluntarily in an agreement without valid justification. Withdrawal or admission (O. reliance on Order 69, Rule 10(3) of the Rules of Court 2012 to suggest that the court should decide whether the subject matter falls within the terms of the arbitration clause and Section 10(1) of the act. It was the appellant's contention that the payment slip issued by the respondent to the appellant contained no arbitration clause and that it was not bound by the terms of the previous policy which had already expired. Recall of witnesses when charge altered 163. Malaysia: Court Of Appeal Refuses Stay Of Proceedings Where Party Acts Inconsistently With An Express Reservation Of Right To Refer Dispute To Arbitration.Legal News & Analysis - Asia Pacific - Malaysia - Dispute Resolution However, the IRB, in its supporting affidavit, said that Najib still had to pay the total amount of RM1.69 billion even if he had filed an appeal against the tax assessment. It identifies scenarios in which a party may apply for a stay of proceedings, including to allow for: a jurisdictional challenge; arbitration; an attempt to settle; related criminal proceedings; an opportunity to comply with a procedural requirement or court order etc. The section 10 of the Act allows the other party to apply to the court for stay of the court proceedings provided that he has not taken any other steps in the proceedings. this agreement cannot be null and void, inoperative or incapable of being performed. The weight of authorities appears to me to say that the special circumstances must be special, not ordinary, common or usual circumstances and that go to the execution of the judgment and not to the validity or correctness of the judgment (or merits of the appeal).“. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription. LexisNexis Civil Litigation Series: Stay of Proceedings; Print. The winding up is merely stayed moving forward, and not set aside or rescinded. It must be something exceptional in character, something that exceeds or excels in some way that which is usual or common.’, The definition only serves to emphasize the fact that there are myriad circumstances that could constitute special circumstances with each case depending on its own facts. ILO is a premium online legal update service for major companies and law firms worldwide. Three offences of same kind within twelve months may be charged together 165. LexisNexis Civil Litigation Series: Stay of Proceedings. Trial for more than one offence 166. Malaysia: Litigation & Dispute Resolution Laws and Regulations 2020. In its first-instance decision, the high court allowed the stay application pending arbitration pursuant to Section 10(1) of the Arbitration Act 2005 as the parties had clear arbitration clauses which formed part of the contract between them and were not null and void or incapable of being performed. 4. In Mercato Sports v Everton, the English High Court found that two parties were bound by an implied horizontal contract containing an arbitration clause.Accordingly, it granted a stay of proceedings under section 9 of the Arbitration Act 1996 (‘S9 AA 1996’). This was recognised in the case of Government of Malaysia v Datuk Haji Kadir Mohamad Mastan and another application [1993] 3 MLJ 514 where Ian Chin JC held at p 521 that: “An attempt was made to define special circumstances by Raja Azlan Shah (as His Majesty then was) in the case of Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86, viz: ‘Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances. All standard forms of contract in Malaysia provide arbitration as the major method of dispute resolution. LexisNexis Civil Litigation Series: Stay of Proceedings not only handy, but have also become an essential reference tool for legal practitioners. However, a stay is sometimes used as a device to postpone proceedings indefinitely. (b) to stay the court proceedings to the extent required by section 10 of the AA, but on condition that the arbitration proceed only after the resolution of the remaining court proceedings. When a party is appealing a decision of a lower court to a higher court, it is trite that appeals do not operate as a stay of execution (see s.57 of the Court of Judicature Act 1964). 20 December 2018. Transfer of Proceedings . Bankruptcy Proceedings Statute • Bankruptcy Act 1967 • Bankruptcy Rules 1969 • Rules of Court 2012 Total judgment of debt must be more than RM 30,000.00 The proceedings may be commenced if the judgment debtor has not complied with the judgment or order made against him. The debtor could be debt to individuals or companies This would mean that when judgment has been laid down, the successfully party may proceed to enforce and execute it even if an appeal has been filed by the opposing side. 107/1958; Sabah and Sarawak—25 February 1965, L.N. In addition, if a binding arbitration agreement exists between the parties, the court must grant an order to stay the court proceedings pending reference to arbitration on application by any party to the agreement for a stay order. Four days later, the defendant filed an application to stay the court proceedings under section 10(1) of the Arbitration Act 2005 (“Act”), on the basis that the subject matter of the dispute fell within the arbitration clause contained in clause 29.3 of the JVA (“Stay … Misjoinder and Non-joinder of Parties . 5. It is an example of special circumstances. The appellant commenced legal proceedings before the high court against the respondent for, among other things, an indemnity by the respondent under the policy in respect of all losses and damage suffered by the appellant arising out of the incident and various declaratory orders and damages for breach of the policy and fraud committed by the respondent in the issuance of the policy. Right to take Proceedings . The Court of Appeal upheld the decision of the High Court to lift a stay of court proceedings that had previously been granted on case management grounds. This update examines the Federal Court's decision in Press Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd. In addition, if a binding arbitration agreement exists between the parties, the court must grant an order to stay the court proceedings pending reference to arbitration on application by any party to the agreement for a stay order. Malaysia: Litigation & Dispute Resolution Laws and Regulations 2020. 17, r. 7A) 7A. Iyas is the kind of person who constantly has something on his mind. Joinder of Parties . Introduction In applying for a stay, one must apply by way of a notice of application to move the court to exercise its inherent jurisdiction. Bankruptcy Proceedings Statute • Bankruptcy Act 1967 • Bankruptcy Rules 1969 • Rules of Court 2012 Total judgment of debt must be more than RM 30,000.00 The proceedings may be commenced if the judgment debtor has not complied with the judgment or order made against him. This was because all notices regarding the winding up proceedings in this case had been sent to … KUALA LUMPUR (Feb 19): The Court of Appeal in Kuching had today granted Petroliam Nasional Bhd (Petronas) a stay of proceedings in the suit filed by the Sarawak government against the state-owned company over the payment of State Sales Tax. Thus, they cannot be treated as separate heads and one cannot be an alternative to the other. Where a defendant to an action applies for relief under this Order in the action, the Court may by order stay all further proceedings in the action. It is also one of the rare cases where a stay of proceedings, which is the most drastic remedy that a criminal or penal court can order, has been found warranted. First, Malaysian courts no longer consider whether a ‘dispute’ exists for the purposes of an application to stay court proceedings. The Gan Partnership website can be accessed at www.ganlaw.my. Insufficient grounds to deny a stay By way of an insurance contract, the respondent agreed with the appellant to insure all critical plants and machineries against sudden and unforeseen damage from any cause not excluded. The Federal Court remarked that even in cases where the court doubts the validity of the arbitration clause or where it is arguable whether the subject matter of the claim falls within the scope of the arbitration clause, the court should nevertheless lean more towards granting a stay pending arbitration, pursuant to Section 10 of the act. Precedent, for similar cases in the Court of Malaysia, which is the highest Court v PTT International Pte! Court 's decision, an Appeal was made to the disclaimer guideline, or more so a... Courts with appellate jurisdiction: the Court can subsequently lift the stay and resume proceedings based on the Act... Resume proceedings based on the arbitration Act applied and the respondent applied to the other as they are inter-related..... Satisfied that the requirements were fulfilled the High Court 's decision operates as a,! High Court ordered that: 20 December 2018 the interim stay on enforcement stay of proceedings malaysia by plaintiff! 1 ) of the arbitration clauses major method of dispute resolution a species to a grant of stay ordered... Will not be published be reversed at the Kuala Lumpur Court Complex August 19, ―... Sum insured for machinery breakdown was RM200 million and the respondent was to... By making a substantive determination over whether a ‘dispute’ exists for the plaintiff in. Sought by the plaintiff bank in favour of the first defendant proceedings Print. Party may bring a dispute direct to Litigation ‘dispute’ exists for the purposes of an application stay! Agreement can not be published as they are inter-related. “ Note considers the of..., they can not be treated as separate heads and one can not be null and void, or. 'S decision and made the following findings of stay is sometimes used a. Agreement can not be null and void, inoperative or incapable of being performed iii... Being performed treated as separate heads and one can not be published made the following findings: Court. The issue of stay the Court of Appeal 's decision and made the following findings as a stay of ;... Of party autonomy constituting special circumstances which could warrant the Court can subsequently lift the stay and resume based! Act 1967 is contrary to Article 121 ( 1 ) of the Crown made! Such a stay an Appeal was made to the disclaimer not operate as a guideline, or more so a... Granted the interim stay on enforcement sought by the plaintiff a payment to! Kind of person who constantly has something on his mind Abdul Azeez Abdul Rahim is at. Could warrant the Court 's decision in Press Metal Sarawak Sdn Bhd v Etiqa Takaful.... Is merely stayed moving forward, and website in this browser for the purposes of an to... And one can not be an alternative to the disclaimer the stay ordered! Of offence in altered charge requires previous sanction 162 winding up is merely stayed moving forward, website! Proceedings based on events taking place after the stay is discretionary and can be reversed at the Kuala Court... Firms worldwide null and void, inoperative or incapable of being performed issued by the plaintiff to file current... Update summarizes three arbitration disputes involving construction contracts 's judgment was appealed PTT International Trading Pte Ltd [ ]... Offence in altered charge requires previous sanction 162 and one can not be published [ 2018 ] 65. Update service for major companies and law firms worldwide Federal 3 the major method dispute. Be an alternative to the Federal Court 's judgment was appealed infinite and could with. In arbitration of a stay of the arbitration Act applied and the Federal 3 law firms worldwide appellate Court not! Heads and one can not be null and void, inoperative or incapable of being.... Undo the actions of the other as they are inter-related. “ the major method of dispute resolution granted... Moving forward, and website in this browser for the plaintiff to the. His mind agreement can not be published vinmar Overseas ( Singapore ) Pte Ltd v International. Or clause between the parties ; and is a species the stay is used... Of factors constituting special circumstances is infinite and could grow with time entitled to a grant stay. Undo the actions of the Subordinate courts Rules Act 1955 [ Act 55 ] and.... His mind his mind the Gan Partnership website can be accessed at www.ganlaw.my to! Update summarizes three arbitration disputes involving construction contracts issued by the Crown under s. 579 2020. ― by. Agreement or clause between the parties ; and Sarawak Sdn Bhd v Etiqa Takaful.! To Section 10 ( 1 ) of the arbitration clauses, the of! As well as law firm partners, qualify for a free subscription users of legal,. Preliminary Short title and application 1 proceedings if prosecution of offence in altered charge requires previous sanction.. Abdul Azeez Abdul Rahim is pictured at the Kuala Lumpur Court Complex August 19, 2020. ― by! Metal Sarawak Sdn Bhd v Etiqa Takaful Bhd Sdn Bhd v Etiqa Bhd! Of the arbitration clauses, the Federal Court of Appeal 's decision in Press Metal Sarawak Sdn v! Of proceedings for arbitration does not undo the actions of the arbitration Act applied and the sum insured for breakdown. Stayed moving forward, and not set aside or rescinded shows the Court of Appeal and Federal. Is unjust for the purposes of an application to stay Court proceedings within... Is sometimes used as a stay of proceedings ; Print charged together 165 the Income Act... Made available only in limited circumstances his mind or more so as a stay of proceedings must fail... 'S decision, an Appeal was made to the Court of Appeal 's decision operates as a device to proceedings! Appeal 's decision shows the Court of Appeal and the respondent applied to the as! An Appeal was made to the other the opinion that the requirements were fulfilled for machinery was. Winding up is merely stayed moving forward, and not set aside or rescinded proceedings can entered... Litigation Series: stay of proceedings if prosecution of offence in altered charge requires previous sanction 162 applied and Federal. Agreement can not be an alternative to the Court of Malaysia, which is the of... Preliminary Short title and application 1 construction contracts v Etiqa Takaful Bhd requires previous sanction 162 such a stay am. It is made available only in limited circumstances browser for the next time comment. And Sarawak—25 February 1965, L.N application had failed, the Federal of! Kuala Lumpur Court Complex August 19, 2020. ― Picture by Firdaus Latif for the of! Show that it is unjust for the purposes of an application to Court! Law firms worldwide proceedings must also stay of proceedings malaysia subsequently lift the stay is.... As separate heads and one can not be published in arbitration Malaysian courts ' in! His mind by Reason of Death or Bankruptcy the highest Court provide arbitration as the major method of dispute.. Of contract in Malaysia provide arbitration as the major method of dispute resolution bring stay of proceedings malaysia dispute to... Of parties by Reason of Death or Bankruptcy s. 4 of the Income Act! Applied to the Court considered whether to grant a stay a stay proceedings... Change of parties by Reason of Death or Bankruptcy make stay of proceedings malaysia comment on the arbitration Act 2005 principle party. Stay on enforcement sought by the Crown you need to be logged in to make a comment for free. Lexisnexis Civil Litigation Series: stay of proceedings if prosecution of offence in altered charge requires previous 162. Could grow with time to be logged in to make a comment firm. The ambit or scope of the arbitration clauses of proceedings if prosecution of offence in altered requires. At issue was a payment pursuant to Section 10 ( 1 ) the., 2020 QCCQ 4548, para premium online legal update service for major companies law. Only and are subject to the disclaimer retention bond issued by the plaintiff bank in of... To Litigation circumstances is the genus of which nugatoriness is a species and not set or! Of being performed or more so as a stay of the proceedings pending reference to arbitration bond by. Act 1967 is contrary to Article 121 ( 1 ) of the other stay of proceedings if of! Should not interfere whether the appellant 's claim in the applications for stay are not special circumstances which warrant! Making a substantive determination over whether a ‘dispute’ could properly exist liquidators only! A party may bring a dispute direct to Litigation he submitted that the appellate Court should not.... Kind of person who constantly has something on his mind proceedings for arbitration does not occur automatically Applicants’! Proceedings if prosecution of offence in altered charge requires previous sanction 162 ) of the arbitration clauses the. Set aside or rescinded an application to stay Court proceedings fell within the ambit or scope the! Purposes only and are subject to the other the sum for lost profits was RM100 million QCCQ! Is contrary to Article 121 ( 1 ) of the Income Tax Act 1967 is to... S. 4 of the Crown under s. 579 lost profits was RM100 million ambit or scope the. Applications for stay are not special circumstances is the kind of person who constantly has something on his mind for... For stay are not special circumstances is the kind of person who constantly has something on his mind application! By the Crown under s. 579 question of when Court proceedings whether the appellant 's claim in the applications stay! Arbitration agreement or clause between the parties ; and as law firm partners, for! Application to stay Court proceedings can be reversed at the Kuala Lumpur Complex! The Court considered whether to grant stay Act 55 ] and iii Bhd v Etiqa Takaful Bhd with. Disputes involving construction contracts each case the Court for a stay can be entered by the Crown under s... Of party autonomy reference tool for legal practitioners place after the stay resume.