PANCARAN PRIMA SDN BHD v. ISWARABENA SDN BHD & ANOTHER APPEAL

[2020] 6 MLRA 124

PANCARAN PRIMA SDN BHD v. ISWARABENA SDN BHD & ANOTHER APPEAL
Federal Court, Putrajaya
Mohd Zawawi Salleh, Vernon Ong, Abdul Rahman Sebli, Zaleha Yusof FCJJ, Badariah Sahamid JCA
[Civil Appeal Nos: 02(f)-26-03-2019(W) & 02(f)-27-03-2019(W)]
27 August 2020

JUDGMENT

Abdul Rahman Sebli FCJ:

[1] There were two appeals before us, namely Civil Appeal No: 02(f)-26-03- 2019(W) ("Appeal 26") and Civil Appeal No: 02(f)-27-03-2019(W) ("Appeal 27"). Both appeals arose from the same dispute between the parties which was arbitrated upon. The position taken by the appellant at the commencement of the hearing before us was that our decision on Appeal 26 will determine the outcome of Appeal 27, whichever way Appeal 26 goes.

[2] Appeal 26 relates to the setting aside of the arbitration award whilst Appeal 27 is against the refusal by the High Court to register the award as a judgment. Having heard arguments by both parties, both written and oral, we reserved judgment to a date to be fixed. We have now reached a unanimous decision and this is our judgment.

[3] The appellant had been granted leave to appeal on the following five questions of law, namely:

(1) "Whether the threshold requirement stipulated by s 37 of the Arbitration Act 2005 to set aside an award as 'very low' as set out in the cases of Petronas Penapisan (Melaka) Sdn Bhd v. Ahmani Sdn Bhd [2016] 2 MLRA 407; [2016] 3 CLJ 403; [2016] 2 AMR 264; [2016] 2 MLJ 697 and Sigur Ros Sdn Bhd v. Master Mulia [2018] 3 MLRA 219; [2018] 8 CLJ 291; [2018] 3 MLJ 608 is indeed the correct test in the light of the various other provisions of the Arbitration Act 2005?"

(The question asks whether the threshold under s 37 of the Arbitration Act 2005 ("the Act") is 'very low')

(2) "Whether the arbitrator who is an engineer who relies on his own knowledge of the construction industry in arriving at a decision on the quantum of 'loss of profit pursuant to a provision recognised by s 21(3)(b) of the Arbitration Act 2005 for an arbitrator to be able to draw on its own knowledge and expertise, can then be said to be in breach of the rules of natural justice within the meaning of s 37(1)(b)(ii) read together with subsection 2(b) of the Act?"

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