CAN I APPEAL/CHALLENGE AN ARBITRAL AWARD IN MALAYSIA?

There is no right to appeal an arbitral award per se, but an arbitral award may be set aside under by making an application to the court. The application to set aside an award must be made within three months (i.e. 90 days) upon receiving the award.

Grounds to set aside an arbitral award

Pursuant to Section 37(1) of the Arbitration Act (AA) 2005, the High Court can set aside an arbitral award if the party making the application can prove that:

  • A party to the arbitration agreement was under an incapacity;
  • The arbitration agreement is invalid under the law;
  • The party was not given proper notice of the appointment of an arbitrator or the arbitral proceedings, or was otherwise unable to present its case;
  • The award deals with a dispute not contemplated by the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration;
  • The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties;
  • The subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia;
  • The award is in conflict with the public policy of Malaysia (i.e. the making of the award was induced or affected by fraud or corruption).

Reference on questions of law

Section 42(1) of the AA provides that any party can refer to the High Court any question of law arising out of an arbitral award. This section is limited to situations where the question of law arises out of the award itself and not out of the arbitration.

The High Court may, on the determination of a reference—

  1. confirm the award;
  2. vary the award;
  3. remit the award in whole or in part to the arbitral tribunal for reconsideration; or
  4. set aside the award, in whole or in part.

Note that Section 42 falls under Part III of the Arbitration Act.

  • Part III applies for domestic arbitration unless the parties agree otherwise in writing; but
  • Part III will not apply to an international arbitration with a seat in Malaysia unless the parties agree otherwise.