KONSESI KOTA PERMATAMAS Sdn Bhd

On the court record

Illustrates how an award creditor navigates the limited curial review of an arbitral award alongside the additional leave requirements once the award debtor is in liquidation.

Konsesi Kota Permatamas Sdn Bhd appears in the reported judgments as a party to arbitration-enforcement litigation in the High Court (Mahkamah Tinggi), its matters arising from a single final arbitral award and the competing applications to set it aside and to enforce it. The decisions engage the interaction between the arbitration regime and the winding-up of a counterparty.

In one matter the company was an applicant seeking leave to proceed with arbitration and to enforce a final award in the arbitration against a company in liquidation, under section 486(2) of the Companies Act 2016. The court examined the pre-conditions for granting such leave where the liquidator refused to act for the respondent and where the liquidator's sanction to act was in issue, and considered whether nunc pro tunc leave — leave granted retrospectively to validate a step already taken — was valid, and whether there had been a breach of natural justice to the applicant because an earlier nunc pro tunc leave application had been made ex parte. Those questions reflect the procedural care required when an award creditor seeks to enforce against a company that has passed into liquidation.

Connected proceedings concerned two originating summonses heard together — one to set aside the final award and the other to enforce it — dated to the same award. That pairing is the characteristic shape of arbitration-enforcement litigation, in which the award debtor's challenge and the award creditor's enforcement are determined in a single hearing, the court weighing the narrow grounds on which an award may be set aside against the strong policy in favour of recognising and enforcing a final award. Across the matters, the company illustrates how an award creditor navigates both the limited curial review of an arbitral award and the additional leave requirements that arise once the party against whom enforcement is sought is in liquidation.