Nur Nabila Roslee

On the court record

Nur Nabila Roslee appears in the corpus in commercial-contract and arbitration litigation, argued from the High Court (Mahkamah Tinggi) to the Federal Court (Mahkamah Persekutuan). One Federal Court matter, appearing for the appellant, concerned the construction of a commercial contract and, in particular, the distinction between a 'best endeavours' obligation and a 'reasonable endeavours' obligation, together with the burden of proof, the contra proferentem rule, the maxim generalia specialibus non derogant, the effect of a guarantee, and the extent to which post-formation conduct may be used in construing the parties' bargain — questions that go to how demanding an endeavours clause is and who bears the risk of its ambiguity. Two further matters, appearing for the defendant in one and the plaintiff in the other, arose from the same arbitral award and concerned its setting aside and enforcement. The application to set the award aside was brought under several limbs of section 37 of the Arbitration Act 2005 on grounds of a breach of natural justice and public policy, applying the three-stage test associated with the Master Mulia decision, and engaged the tribunal's reliance on hearsay evidence, the fact that under section 19 of the Act the tribunal is not bound by the Evidence Act 1950 and enjoys a discretion over the admissibility and weight of evidence, and the contention that the challenges were in truth an impermissible attempt to re-open the merits outside the scope of section 37; the court found no serious or material breach and no impediment to enforcement of the award under section 38. The arbitration matters illustrate how narrowly the courts read the grounds for interfering with an award: a complaint that the tribunal relied on weak or hearsay evidence, or misread the pleadings, will usually be treated as an attempt to re-argue the merits rather than as the kind of serious procedural unfairness that section 37 requires. Across the appearances the practice combines the close construction of commercial contracts, including the interpretation of endeavours obligations, with the enforcement and setting aside of arbitral awards and the limited grounds on which an award may be disturbed.