Reliance Electro Mechanical Plumbing Contracting Co LLC (Sebuah syarikat yang diperbadankan di United Arab Emirates dengan No. Peti Surat: 52027) v Zelan Holdings (M) Sdn Bhd

Case Significance

Confirms that the documentary requirements in section 38(2)(b) of the Arbitration Act 2005 are mandatory pre-conditions to recognising and enforcing an arbitral award: failure to exhibit the original arbitration agreement or a duly certified copy is by itself fatal, and here led to dismissal without consideration of the merits.

This High Court decision at Kuala Lumpur, delivered by Judge Leong Wai Hong, concerns the recognition and enforcement of a foreign arbitration award and the mandatory documentary requirements for such an application under the Arbitration Act 2005. The plaintiff, Reliance Electro Mechanical Plumbing Contracting Co LLC, a company incorporated in the United Arab Emirates, filed an originating summons for recognition and enforcement of a foreign award against the defendant, Zelan Holdings (M) Sdn Bhd, a Malaysian company. The defendant raised a preliminary objection that the plaintiff had failed to comply with the mandatory requirement in section 38(2)(b) of the Arbitration Act 2005, in that its application did not exhibit the original arbitration agreement or a duly certified copy of the agreement.

The court upheld the objection. It emphasised that the word "shall" in section 38 denotes a mandatory requirement, so that an applicant seeking recognition and enforcement of an award must produce both the duly authenticated original award (or a certified copy) and the original arbitration agreement (or a certified copy). The court observed that the point raised a short question on which there was as yet little local authority, and reasoned that because the statutory language is couched in mandatory terms, the production of the agreement is a condition of the court's power to recognise and enforce, not a procedural nicety that the court may waive on grounds of convenience. The plaintiff's failure to exhibit the arbitration agreement or a certified copy was, in the court's view, a fatal oversight by the plaintiff's solicitors that could not be excused. The court made clear that it disallowed the application solely on the ground of non-compliance with section 38(2)(b), and had not considered the merits of the other arguments raised. It accordingly dismissed the originating summons with costs of RM20,000, subject to allocatur. The judgment is a pointed reminder that the documentary conditions in section 38(2) of the Arbitration Act 2005 are mandatory pre-conditions to enforcement, and that omitting the arbitration agreement is by itself fatal to the application.