ARBITRATION ACT, l952 *
(Act 93)
An Act relating to
the conduct of arbitrations.
[Sarawak - 18th June,
1952; Other States - 1st November, 1972.]
This Act may be cited as the Arbitration Act, 1952.
In this Act unless the context otherwise requires-
"arbitration agreement" means a written agreement to submit
present or future differences to arbitration, whether an arbitrator is named
therein or not;
"commencement of this Act" in respect of
"High Court" means the High Court in
The authority of an arbitrator or umpire appointed by or by
virtue of an arbitration agreement shall, unless a contrary intention is expressed
in the agreement, be irrevocable except by leave of the High Court.
(1) An arbitration agreement
shall not be discharged by the death of any party thereto, either as respects
the deceased or any other party, but shall in that event be enforceable by or
against the personal representative of the deceased.
(2) The authority of an arbitrator shall not
be revoked by the death of any party by whom he was appointed.
(3) Nothing in this section shall be taken
to affect the operation of any written law or rule of law by virtue of which
any right of action is extinguished by the death of a person.
(1) Where it is provided by
a term in a contract to which a bankrupt is a party that any differences
arising thereout or in connection therewith shall be referred to arbitration,
the said term shall, if the person having jurisdiction to administer the
property of the bankrupt adopts the contract, be enforceable by or against him
so far as relates to any such differences.
(2) Where a person who has been adjudged
bankrupt had, before the commencement of the bankruptcy, become a party to an
arbitration agreement, and any matter to which the agreement applies requires
to be determined in connection with or for the purposes of the bankruptcy
proceedings, then, if the case is one to which subsection (1) does not apply,
any other party to the agreement, or the person having jurisdiction to
administer the property of the bankrupt, may apply to the High Court for an
order directing that the matter in question shall be referred to arbitration in
accordance with the agreement, and the High Court may, if it is of opinion
that, having regard to all the circumstances of the case, the matter ought to
be determined by arbitration, make an order accordingly.
If any party to an arbitration agreement or any person
claiming through or under him commences any legal proceedings against any other
party to the arbitration, or any person claiming through or under him, in
respect of any matter agreed to be referred to arbitration, any party to the
legal proceedings may, before taking any other steps in the proceedings, apply
to the court to stay the proceedings, and the court, if satisfied that there is
no sufficient reason why the matter should not be referred in accordance with
the arbitration agreement, and that the applicant was at the time when the
proceedings were commenced and still remains ready and willing to do all things
necessary to the proper conduct of the arbitration, may make an order staying
the proceedings.
Where relief by way of interpleader is granted and it
appears to the High Court that the claims in question are matters to which an
arbitration agreement, to which the claimants are parties, applies, the High
Court may direct the issue between the claimants to be determined in accordance
with the agreement.
Unless a contrary intention is expressed therein, every
arbitration agreement shall, if no other mode of reference is provided, be
deemed to include a provision that the reference shall be to a single
arbitrator.
Where an arbitration agreement provides that the reference
shall be to two arbitrators, one to be appointed by each party, then, unless a
contrary intention is expressed therein.
(a) if either of the
appointed arbitrators refuses to act, or is incapable of acting, or dies, the
party who appointed him may appoint a new arbitrator in his place; and
(b) if on such a reference, one party fails
to appoint an arbitrator, either originally or by way of substitution as
aforesaid, for twenty-one clear days after the other party, having appointed
his arbitrator, has served the party making default with notice to make the
appointment, the party who has appointed an arbitrator may appoint that
arbitrator to act as sole arbitrator in the reference, and his award shall be
binding on both parties as if he had been appointed by consent:
Provided that the High Court may set aside any
appointment made in pursuance of this section.
(1) Unless a contrary
intention is expressed therein, every arbitration agreement shall, where the
reference is to two arbitrators, be deemed to include a provision that the two
arbitrators shall appoint an umpire immediately after they are themselves appointed.
(2) Unless a contrary intention is expressed
therein, every arbitration agreement shall, where such a provision is
applicable to the reference, be deemed to include a provision that, if the
arbitrators have delivered to any party to the arbitration agreement, or to the
umpire, a notice in writing stating that they cannot agree, the umpire may
forthwith enter on the reference in lieu of the arbitrators.
(3) At any time after the appointment of an
umpire, however appointed, the High Court may, on the application of any party
to the reference and notwithstanding anything to the contrary in the
arbitration agreement, order that the umpire shall enter upon the reference in
lieu of the arbitrators and as if he were a sole arbitrator.
(1) Where an arbitration
agreement provides that the reference shall be to three arbitrators, one to be
appointed by each party and the third to be appointed by the two appointed by
the parties, the agreement shall have effect as if it provided for the
appointment of an umpire, and not for the appointment of a third arbitrator, by
the two arbitrators appointed by the parties.
(2) Where an arbitration agreement provides
that the reference shall be to three arbitrators to be appointed otherwise than
as mentioned in subsection (1), the award of any two of the arbitrators shall
be binding.
In any of the following cases:
(a) where an arbitration
agreement provides that the reference shall be to a single arbitrator, and all
the parties do not, after differences have arisen, concur in the appointment of
an arbitrator;
(b) if an appointed arbitrator refuses to
act, or is incapable of acting, or dies, and the arbitration agreement does not
show that it was intended that the vacancy should not be supplied and the
parties do not supply the vacancy;
(c) where the parties or two arbitrators
are at liberty to appoint an umpire or third arbitrator and do not appoint him,
or where two arbitrators are required to appoint an umpire and do not appoint
him;
(d) where an appointed umpire or third
arbitrator refuses to act, or is incapable of acting, or dies, and the
arbitration agreement does not show that it was intended that the vacancy
should not be supplied, and the parties or arbitrators do not supply the
vacancy,
any party may serve the other parties or the
arbitrators, as the case may be, with a written notice to appoint or, as the
case may be, concur in appointing, an arbitrator, umpire or third arbitrator,
and if the appointment is not made within twenty-one clear days after the
service of the notice, the High Court may, on application by the party who gave
the notice, appoint an arbitrator, umpire or third arbitrator, who shall have
the like powers to act in the reference and make an award as if he had been
appointed by consent of all parties.
(1) Unless a contrary
intention is expressed therein, every arbitration agreement shall, where such a
provision is applicable to the reference, be deemed to contain a provision that
the parties to the reference, and all persons claiming through them
respectively, shall, subject to any legal objection, submit to be examined by
the arbitrator or umpire on oath or affirmation, in relation to the matters in
dispute, and shall, subject as aforesaid, produce before the arbitrator or
umpire all documents within their possession or power respectively which may be
required or called for, and do all other things which, during the proceedings
on the reference, the arbitrator or umpire may require.
(2) Unless a contrary intention is expressed
therein, every arbitration agreement shall, where such a provision is
applicable to the reference, be deemed to contain a provision that the
witnesses on the reference shall, if the arbitrator or umpire thinks fit, be
examined on oath or affirmation.
(3) An arbitrator or umpire shall, unless a
contrary intention is expressed in the arbitration agreement, have power to
administer oaths to, or take the affirmations of, the parties to, and witnesses
on, a reference under the agreement.
(4) Any party to a reference under an
arbitration agreement may take out a summons to give evidence or to produce
documents, but no person shall be compelled under any such summons to produce
any document which he could not be compelled to produce on the trial of an
action, and the High Court may order that a summons to give evidence or produce
documents shall issue to compel the attendance before an arbitrator or umpire
of a witness wherever he may be within Malaysia.
(5) The High Court may also issue an order
to bring up a prisoner for examination before any arbitrator or umpire.
(6) The High Court shall have, for the
purpose of and in relation to a reference, the same power of making orders in
respect of-
(a) security for costs;
(b) discovery of documents and
interrogatories;
(c) the giving of evidence by affidavit;
(d) examination on oath of any witness
before an officer of the High Court or any other person, and the issue of a
commission or request for the examination of a witness out of the jurisdiction;
(e) the preservation, interim custody or
sale of any goods which are the subject matter of the reference;
(f) securing the amount in dispute in the
reference;
(g) the detention, preservation or
inspection of any property or thing which is the subject of the reference, or
as to which any question may arise therein, and authorizing for any of the
purposes aforesaid any persons to enter upon or into any land or building in
the possession of any party to the reference, or authorizing any samples to be
taken or any observation to be made or experiment to be tried, which may be
necessary or expedient for the purpose of obtaining full information or evidence;
and
(h) interim injunctions or the appointment
of a receiver, as it has for the purpose of and in relation to an action or
matter in the High Court: Provided that nothing in this subsection shall be
taken to prejudice any power which may be vested in an arbitrator or umpire of
making orders with respect to any of the matters aforesaid.
(1) Subject to section
23(2), and anything to the contrary in the arbitration agreement, an arbitrator
or umpire shall have power to make an award at any time.
(2) The time, if any, limited for making an
award, whether under this Act or otherwise, may from time to time be enlarged
by order of the High Court, whether that time has expired or not.
(3) (a)The High Court may, on the
application of any party to a reference, remove an arbitrator or umpire who
fails to use all reasonable dispatch in entering on and proceeding with the
reference and making an award, and an arbitrator or umpire who is removed by
the High Court under this subsection shall not be entitled to receive any
remuneration in respect of his services.
(b) For the purposes of
this subsection "proceeding with the reference" includes, in a case
where two arbitrators are unable to agree, giving notice of that fact to the
parties and to the umpire.
Unless a contrary intention is expressed therein, every
arbitration agreement shall, where such a provision is applicable to the
reference, be deemed to contain a provision that the arbitrator or umpire may,
if he thinks fit, make an interim award, and any reference in this Act to an
award includes a reference to an interim award.
Unless a contrary intention is expressed therein, every
arbitration agreement shall, where such a provision is applicable to the
reference, be deemed to contain a provision that the arbitrator or umpire shall
have the same power as the High Court to order specific performance of any
contract, other than a contract relating to land or any interest in land.
Unless a contrary intention is expressed therein, every
arbitration agreement shall, where such a provision is applicable to the
reference, be deemed to contain a provision that the award to be made by the arbitrator
or umpire shall be final and binding on the parties and the persons claiming
under them respectively.
Unless a contrary intention is expressed in the arbitration
agreement, the arbitrator or umpire shall have power to correct in an award any
clerical mistake or error arising from any accidental slip or omission.
(1) Unless a contrary
intention is expressed therein, every arbitration agreement shall be deemed to
include a provision that the costs of the reference and award shall be in the
discretion of the arbitrator or umpire who may direct to and by whom and in
what manner those costs or any part thereof shall be paid, and may tax or
settle the amount of costs to be so paid or any part thereof, and may award
costs to be paid as between solicitor and client.
(2) Any costs directed by an award to be
paid shall, unless the award otherwise directs, be taxable in the High Court.
(3) Any provision in an arbitration
agreement to the effect that the parties or any party thereto shall in any
event pay their or his own costs of the reference or award, or any part
thereof, shall be void. and the provisions of this Act shall, in the case of an
arbitration agreement containing any such provision, have effect as if that
provision were not contained therein: Provided that nothing in this subsection
shall invalidate such a provision when it is a part of an agreement to submit
to arbitration a dispute which has arisen before the making of that agreement.
(4) If no provision is made by an award with
respect to the costs of the reference, any party to the reference may, within
fourteen days of the publication of the award, or such further time as the High
Court may direct, apply to the arbitrator for an order directing by and to whom
those costs shall be paid, and thereupon the arbitrator shall, after hearing
any party who may desire to be heard, amend his award by adding thereto such
directions as he may think proper with respect to the payment of the costs of
the reference.
(1) If in any case an
arbitrator or umpire refuses to deliver his award except on payment of the fees
demanded by him, the High Court may, on an application for the purpose, order that
the arbitrator or umpire shall deliver the award to the applicant on payment
into court by the applicant of the fees demanded, and further that the fees
demanded shall be taxed in the same manner as a taxation of costs, and that out
of the money paid into court there shall be paid out to the arbitrator or
umpire by way of fees such sum as may be found reasonable on taxation, and that
the balance of the money, if any, shall be paid out to the applicant.
(2) An application for the purposes of this
section may be made by any party to the reference unless the fees demanded have
been fixed by a written agreement between him and the arbitrator or umpire.
(3) A taxation of fees under this section
may be reviewed in the same manner as a taxation of costs.
(4) The arbitrator or umpire shall be
entitled to appear and be heard on any taxation or review of taxation under
this section.
A sum directed to be paid by an award shall, unless the
award otherwise directs, carry interest as from the date of the award at the
same rate as a judgment debt.
(1) An arbitrator or umpire
may, and shall if so directed by the High Court, state-
(a) any question of law arising
in the course of the reference; or
(b) an award or any part of an award,
in the form of a special case for the decision of
the High Court.
(2) A special case with
respect to an interim award or with respect to a question of law arising in the
course of a reference may be stated, or may be directed by the High Court to be
stated, notwithstanding that proceedings under the reference are still pending.
(3) A decision of the High Court under this section
shall be deemed to be a judgment of the High Court within the meaning of
section 67 of the Courts of Judicature Act, 1964 (which relates to the
jurisdiction of the Supreme Court to hear and determine appeals from any
judgment of the High Court), but no appeal shall lie from the decision of the
High Court on any case stated under subsection (1 )(a) without the leave of the
High Court or of the Supreme Court.
(1) In all cases of
reference to arbitration, the High Court may from time to time remit the
matters referred, or any of them, to the reconsideration of the arbitrator or
umpire.
(2) Where an award is remitted, the
arbitrator or umpire shall, unless the order otherwise directs, make his award
within three months after the date of the order.
(1) Where an arbitrator or
umpire has misconducted himself or the proceedings, the High Court may remove
him.
(2) Where an arbitrator or umpire has
misconducted himself or the proceedings, or an arbitration or award has been
improperly procured, the High Court may set the award aside.
(3) Where an application is made to set
aside an award, the High Court may order that any money made payable by the
award shall be brought into court or otherwise secured pending the
determination of the application.
(1) Where an agreement
between any parties provides that disputes which may arise in the future
between them shall be referred to an arbitrator named or designated in the
agreement and, after a dispute has arisen, any party applies, on the ground
that the arbitrator so named or designated is not or may not be impartial, for
leave to revoke the authority of the arbitrator or for an injunction to
restrain any other party or the arbitrator from proceeding with the
arbitration, it shall not be a ground for refusing the application that the
said party at the time when he made the agreement knew or ought to have known,
that the arbitrator, by reason of his relation towards any other party to the
agreement or of his connection with the subject referred, might not be capable
of impartiality.
(2) Where an agreement between any parties
provides that disputes which may arise in the future between them shall be
referred to arbitration, and a dispute which so arises involves the question
whether any such party has been guilty of fraud, the High Court shall, so far
as may be necessary to enable that question to be determined by the High Court,
have power to order that the agreement shall cease to have effect and power to
give leave to revoke the authority of any arbitrator or umpire appointed by or
by virtue of the agreement.
(3) In any case where, by virtue of this
section, the High Court has power to order that an arbitration agreement shall
cease to have effect or to give leave to revoke the authority of an arbitrator
or umpire, the High Court may refuse to stay any action brought in breach of
the agreement.
(1) Where an arbitrator (not
being a sole arbitrator) or two or more arbitrators (not being all the
arbitrators) or an umpire who has not entered on the reference is or are
removed by the High Court, the High Court may, on the application of any party
to the arbitration agreement, appoint a person or persons to act as arbitrator
or arbitrators or umpire in place of the person or persons so removed.
(2) Where the authority of an arbitrator or
arbitrators or umpire is revoked by leave of the High Court, or a sole
arbitrator or all the arbitrators or an umpire who has entered on the reference
is or are removed by the High Court, the High Court may, on the application of
any party to the arbitration agreement, either-
(a) appoint a person to act
as sole arbitrator in place of the person or persons removed; or
(b) order that the arbitration agreement
shall cease to have effect with respect to the dispute referred.
(3) A person appointed under
this section by the High Court as an arbitrator or umpire shall have the like
power to act in the reference and to make an award as if he had been appointed
in accordance with the terms of the arbitration agreement.
(4) Where it is provided (whether by means
of a provision in the arbitration agreement or otherwise) that an award under
an arbitration agreement shall be a condition precedent to the bringing of an
action with respect to any matter to which the agreement applies, the High
Court, if it orders (whether under this section or under any other written law)
that the agreement shall cease to have effect as regards any particular
dispute, may further order that the provision making an award a condition
precedent to the bringing of an action shall also cease to have effect as
regards that dispute.
An award on an arbitration agreement may, by leave of the High Court, be
enforced in the same manner as a judgment or order to the same effect, and,
where leave is so given, judgment may be entered in terms of the award.
Where the terms of an agreement to refer future disputes to arbitration
provide that any claims to which the agreement applies shall be barred unless
notice to appoint an arbitrator is given, or an arbitrator is appointed, or
some other step to commence arbitration proceedings is taken, within a time
fixed by the agreement and a dispute arises to which the agreement applies, the
High Court, if it is of opinion that in the circumstances of the case undue
hardship would otherwise be caused, and notwithstanding that the time so fixed
has expired, may, on such terms, if any, as the justice of the case may
require, but without prejudice to any written law limiting the time for the
commencement of arbitration proceedings, extend the time for such period as it
thinks proper.
Any order made under this Act may be made on such terms as to costs or
otherwise as the authority making the order thinks just.
This Act shall apply to any arbitration to which the Federal Government or
the Government of any State is a party.
Rules of court may be made for giving effect to this Act and may confer on
the Registrar of the High Court or any other officer of that Court all or any
of the jurisdiction conferred by this Act on the High Court.
(1) This Act, except the provisions thereof
specified in subsection (2), shall apply to every arbitration under any other
written law (whether passed before or after the commencement of this Act), as
if the arbitration were pursuant to an arbitration agreement and as if that
other written law were an arbitration agreement, except so far as this Act is
inconsistent with that other written law or with any rules or procedure
authorized or recognised thereby.
(2) The provisions referred to in subsection
(1) are sections 4(1), 5, 7, 19(3), 25, 26 and 28.
For the avoidance of doubts, it is hereby declared that this Act shall apply
to an arbitration agreement made before the date of commencement of this Act
and to an arbitration commenced after that date under an agreement made before
that date.
(1) Notwithstanding anything to the contrary
in this Act or in any other written law but subject to subsection (2) in so far
as it relates to the enforcement of an award, the provisions of this Act or
other written law shall not apply to any arbitration held under the Convention
on the Settlement of Investment Disputes Between States and Nationals of Other
States 1965 or under the United Nations Commission on International Trade Law
Arbitration Rules 1976 and the Rules of the Regional
Centre for Arbitration at Kuala Lumpur.
(2) Where an award made in an arbitration
held in conformity with the Convention or the Rules specified in subsection (1)
is sought to be enforced in Malaysia, the enforcement proceedings in respect
thereof shall be taken in accordance with the provisions of the Convention
specified in subsection (1) or the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards 1958, as may be appropriate.
(3) The competent court for the purpose of
such enforcement shall be the High Court.
Footnote
* Enacted in 1952 as
Note General Editor. The text as reproduced here is as amended by the
Arbitration (Amendment) Act 1980, in force from
INTERNET SOURCE: http://www.arbiter.net/mact.html