ASIAN INTERNATIONAL ARBITRATION CENTRE v ONE AMERIN RESIDENCE SDN BHD

02i-66-12-2023w Federal Court (Mahkamah Persekutuan) 12 February 2025 • 02(i)-66-12/2023(W) • 79 min read
22 cases cited (1 SG, 21 foreign)

Outcome

We therefore allow the appeals and set aside the decision of the Court of Appeal. [155] We now turn to the questions of law as posed before us: Question 1: Whether the immunity from suit and from other legal process in paragraph 1 of the First Schedule to the IOPIA conferred upon the AIAC as an international organisation under the KLRCA Regulations is applicable to render the AIAC immune from judicial review of acts and decisions made by the AIAC in its capacity as the domestic and statutory adjudication authority under the CIPAA.

Quoted verbatim from the judgment of Federal Court (Mahkamah Persekutuan) (02i-66-12-2023w). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

Judicial review application - The extent of immunity enjoyed by an international organisation in Malaysia - Whether the legal immunity conferred on the Asian International Arbitration Centre (AIAC) in its capacity as an international organisation pursuant to the International Organizations (Privileges and Immunities) Act 1992 (‘the IOPIA’) applies in judicial review proceedings brought against the AIAC in relation to its domestic and statutory functions under the the Construction Industry Payment and Adjudication Act 2012 (CIPAA) – Whether the immunity from suit and from other legal process in paragraph 1 of the First Schedule to the IOPIA conferred upon the AIAC as an international organisation under the KLRCA Regulations is applicable to render the AIAC immune from judicial review of acts and decisions made by the AIAC in its capacity as the domestic and statutory adjudication authority under the CIPAA - Whether the High Court’s inherent powers in judicial review proceedings can be ousted by the immunity conferred on the AIAC by virtue of legislations passed by Parliament, i.e., the IOPIA and the CIPAA - Whether there is a necessity to draw a distinction on the capacity of the AIAC either as an international arbitral institution or the statutory adjudication authority before the AIAC is entitled to enjoy the immunity conferred under the IOPIA and the CIPAA – Appeal allowed.

Practice Areas

Administrative Law Construction Law

Judges (3)

Abu Bakar bin Jais Delivered Amar Abang Iskandar bin Abang Hashim Coram Hanipah binti Farikullah Delivered

Counsel (14)

Attorney General's Chambers Firm C.S. Tan Seah & Partners Firm Cheah Teh & Su Firm Sanjay Mohan Firm Shearn Delamore & Co. Firm Andy Gan Kok Jin Counsel Respondent Jamie Goh Moon Hoong Counsel Appellant Rosamirah Insyirah Binti Zamri Counsel Respondent Sachin Niranjan a/l Thavalingam Counsel Appellant Siew Suet Mey Counsel Respondent Sivabalah Nadarajah Counsel Appellant Teh Eng Lay Counsel Respondent Vaneesa Thong Chon Yen Counsel Respondent Wan Shahida Binti Wan Omar Counsel Respondent

Parties (2)

ONE AMERIN RESIDENCE Sdn Bhd Respondent Asian International Arbitration Centre Appellant

Case Significance

Confirms that section 34(1) of the Construction Industry Payment and Adjudication Act 2012 protects an arbitration and adjudication authority from judicial review over its statutory functions, subject to a good-faith condition.

This Federal Court decision is one of two appeals, heard together, concerning the legal immunity of the Asian International Arbitration Centre, an independent supranational arbitral institution formerly known as the Kuala Lumpur Regional Centre for Arbitration. The underlying matter was an adjudication under the Construction Industry Payment and Adjudication Act 2012 between a private property company and a construction company, in which an adjudicator appointed by the Centre made a determination, and the losing party sought to challenge the process by judicial review naming the Centre. The question of principle was whether the immunity from suit and legal process conferred on the Centre as an international organisation under the International Organizations (Privileges and Immunities) Act 1992 extends to judicial review proceedings arising from the Centre’s domestic statutory functions under the 2012 Act. The Court analysed the relationship between that immunity and section 34(1) of the 2012 Act, a protective provision stating that no action or suit shall be instituted or maintained in any court against the Centre or its officers. Applying the interpretive principle that clear and unambiguous statutory words are given effect without further construction, and referring to R Rama Chandran v Industrial Court of Malaysia on how supervisory review jurisdiction may be curtailed by legislative intervention, the Court held that section 34(1) is such an intervention, so that judicial review cannot be maintained against the Centre in respect of its statutory functions. The Court of Appeal had qualified the protection by requiring the Centre to act in good faith in performing those functions, so that the immunity is conditional rather than absolute. In the result the Centre could rely on section 34(1) to protect itself from suit, as no action or suit could be instituted or maintained against it or its officers, the words of the provision being clear and admitting of but one meaning. The judgment is a significant statement on the statutory protection of an adjudication authority from judicial review, and on how a domestic protective clause interacts with the wider immunity conferred on an international organisation.

Summary

This appeal was heard together with Civil Appeal No. 01(i)-31-12/2023(W), both concerning the extent of immunity enjoyed by the Asian International Arbitration Centre (AIAC) in judicial review proceedings related to its statutory functions under the CIPAA. The Federal Court allowed the appeal, holding that section 34(1) of CIPAA provides statutory immunity protecting AIAC from suit, including judicial review, and that this legislative intervention curtails the courts' inherent judicial review power.

What did the Federal Court decide about suing the arbitration centre over its adjudication functions?

It held that section 34(1) of the Construction Industry Payment and Adjudication Act 2012, which bars any action or suit against the Centre or its officers, is a clear legislative curtailment of judicial review, so the Centre could rely on it to protect itself from suit in respect of its statutory functions.

Was the statutory protection unconditional?

No. The Court of Appeal had held, and the Federal Court accepted, that the protection is conditional on the Centre acting in good faith in performing its functions under the Act, so the immunity is not absolute.

Statutes Cited

Federal Constitution
Art 4(1) Art 96
Interpretation Act
s 17A
NZ Act
s 70
Singapore Act
s 28(1) s 32 s 32(2)
SOP Act
s 30(2)
Specific Relief Act 1950
s 54(i)

Cases Cited (22)

SG (1)
[2019] SGCA 37
UK (5)
[1986] QB 716 [1995] 2 WLR 247 [1997] 2 All ER 779 [2019] UKSC 22 [2020] AC 491
AU (1)
[2010] NSWCA 190
MY (15)
[1994] 1 MLJ 566 [1997] 1 CLJ 147 [1998] 3 CLJ 85 [2004] 1 CLJ 81 [2004] 2 MLJ 257 [2006] 3 MLJ 389 [2011] 6 MLJ 297 [2015] 6 MLJ 751 [2015] 8 CLJ 921 [2017] 3 MLJ 561 [2020] 10 MLJ 409 [2020] 7 CLJ 561 [2021] 5 MLJ 209 [2022] 3 AMR 1 [2022] 3 MLJ 356

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (02i-66-12-2023w)