PEMBINAAN JAYA ZIRA Sdn Bhd

On the court record

A contractor whose matters raise the enforcement route for court-referred arbitral awards, paired set-aside and enforcement applications, the illegality of Ali Baba fronting, and the validity of contract termination.

PEMBINAAN JAYA ZIRA Sdn Bhd, a construction contractor, appears in the corpus in arbitration-award and contract-termination matters, and its appearances raise a notable question about the enforcement of court-referred arbitration. In a Court of Appeal matter the court considered whether a court-ordered reference to arbitration differs from a submission to arbitration, and whether an award obtained pursuant to a court-ordered reference may be enforced under the Arbitration Act or should instead be enforced under section 24A of the Courts of Judicature Act 1964. The same matter raised whether a sub-contract from the company to the respondent was an Ali Baba arrangement — a fronting arrangement — and whether such an arrangement was illegal as contrary to public policy.

In connected High Court matters the company and its counterparty brought paired originating summonses over an arbitral award: one to enforce the award as binding under section 38 of the Arbitration Act 2005, and the other, by the company, to set the award aside on various grounds. In a further matter, framed in Bahasa Malaysia, the court addressed a contractor's claim for breach of contract, considering whether the defendant's termination was valid (sama ada penamatan perjanjian oleh Defendan adalah sah) and whether the plaintiff was entitled to compensation if the termination was unlawful.

For a reader, the cluster is instructive on the enforcement route for court-referred arbitral awards, the paired set-aside and enforcement applications over an award, the illegality of Ali Baba fronting arrangements, and the validity of contract termination. The corporate parties are named as they appear on the record; any individuals are referred to by their procedural role only. The company's matters raise a point of practical importance about the enforcement of awards obtained through a court-ordered reference to arbitration, alongside the more familiar set-aside and enforcement contest and the question whether a fronting sub-contract is illegal as contrary to public policy. Together they show how the enforceability of an arbitral outcome can depend on the precise route by which the reference to arbitration was made.