Malaysia Marine And Heavy Engineering Sdn Bhd

On the court record

Illustrates the two faces of arbitration litigation — resisting an attempt to bypass the arbitral forum and defending an award against enforcement challenge — under the doctrine of minimal curial intervention.

Malaysia Marine and Heavy Engineering Sdn Bhd appears in the reported judgments as a marine and heavy-engineering contractor litigating over arbitration in the High Court (Mahkamah Tinggi) and the Court of Appeal (Mahkamah Rayuan). Its matters concern both an attempt to restrain arbitration and the recognition and enforcement of an arbitral award, reflecting the central place of arbitration in resolving its commercial contracts.

In one decision the company was an applicant seeking to restrain an arbitration, an earlier ex parte injunction having been set aside. The court found that the defendant had substantially complied with the relevant clause of the letter of award, that no serious issue had been established, and, applying the principles in Keet Gerald, that damages were an adequate remedy and the balance of convenience favoured allowing the arbitration to proceed; it also held that the Arbitration Act 2005 mandates minimal curial intervention and leaves the tribunal to determine its own jurisdiction, and that the company's participation in the arbitration gave rise to an estoppel. The application was dismissed with costs, the defendant being at liberty to proceed with the arbitration.

In connected Court of Appeal decisions the company was a respondent in a dispute over the recognition and enforcement of an award under the Arbitration Act 2005, arising from a contract for the supply of cost-plus valves. The issues included whether the contracting party was in breach of express and implied terms, whether the valves corresponded with their description and were of merchantable quality, whether substantial loss had been suffered in respect of replaced valves, and whether a breach of the rules of natural justice had occurred in the arbitration and the making of the award. Across the matters, the company illustrates the two faces of arbitration litigation — resisting an attempt to bypass the arbitral forum, and defending an award against a challenge to its enforcement — with the courts consistently applying the doctrine of minimal curial intervention.