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Malaysia – Court Of Appeal: Section 42 Of The Arbitration Act 2005 Revisited.

Introduction  
 
“The Arbitration (Amendment) (No. 2) Act 2018 was gazetted on 4 May 2018 and took effect from 8 May 2018. It was not expressed to take effect retrospectively. The removal of the ability of parties to an arbitration agreement to refer to the High Court a question of law arising from an arbitral award took effect prospectively.” — per Azizul Azmi Adnan JCA. 

The Court of Appeal recently in Luxor Holdings Sdn Bhd & Anor v SQA Builders Sdn Bhd [2025] clarified the conflicting legal position on the effect of the repeal of section 42 of the Arbitration Act 2005 (“AA 2005”), which took effect on 8 May 2018. 

Section 42 of the AA 2005 allowed parties to refer questions of law arising out of an arbitral award to the High Court for determination. The Court of Appeal decision held that such references may only be made in respect of arbitral awards that were published before 8 May 2018. 

Brief facts 

Luxor Holdings Sdn Bhd and Luxor YRM Sdn Bhd (“the Appellants”) commenced arbitration proceedings against SQA Builders Sdn Bhd (“the Respondent”) arising from payment disputes. The notices of arbitration were issued on 26 September 2017, and the arbitral award was delivered in favour of SQA Builders on 30 July 2021, after the repeal of section 42 of the AA 2005. 

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WRITTEN BY

For further information, please contact:

K. Shanti Mogan – Shearn Delamore & Co,
shanti@shearndelamore.com

Practice Areas

  • Arbitration & Mediation (Head)
  • Competition Law & Antitrust (Co-Head)
  • Dispute Resolution
  • Personal Data Protection & Privacy Laws
  • Regulatory Compliance & Enforcement

  • Technology, Media & Telco

Languages

  • English,
  • Malay,
  • Tamil

PRACTICE

Shanti has a broad commercial practice, representing clients in commercial litigation and arbitration, both domestic and international. She acts as counsel and arbitrator, and represents parties in arbitrations held domestically and internationally under the Rules of the KLRCA, SIAC, ICC and UNCITRAL. Her experience covers a wide range of disputes including banking, commercial and corporate, and technology related disputes.

She regularly acts for banks, regulatory bodies and corporations in relation to consumer protection, data protection and privacy, defamation, entertainment, multimedia and communications dispute matters.

Shanti also has experience in the area of competition and antitrust laws, and offers advisory services, compliance audits and legal representation in competition law investigations and disputes. Specific industries she has represented in her competition practice include the pharmaceutical, insurance, energy, travel, banking, automotive, entertainment and retail sectors.

Shanti advises on regulatory compliance and activities coming under the purview of various authorities including the Securities Commission, the Anti-Corruption Commission and the Communications and Multimedia Commission.

QUALIFICATIONS

  • LL.B (Hons), University of Bristol
  • LL.M (Hons), University of Malaya
  • Barrister-at-Law, Gray’s Inn
  • Advocate & Solicitor, High Court of Malaya

ADMISSIONS

  • England & Wales (1989)
  • Malaysia (1990)

PROFESSIONAL MEMBERSHIPS

  • Malaysian Bar
  • Fellow of the Chartered Institute of Arbitrators
  • Fellow of the Malaysian Institute of Arbitrators
  • Member of the Singapore international Arbitration Centre’s (SIAC) Court of Arbitration
  • Member of the Arbitration Sub-Committee of the Malaysian Bar Council
  • Member of the Arbitration Committee of the International Chamber of Commerce (ICC) Malaysia
  • Member of the Legal Affairs Committee of the Malaysian International Chamber of Commerce and Industry
  • Member of the Panel of Arbitrators of AIAC, SIAC and ICC (Malaysia)
  • International Bar Association (IBA)
  • Inter-Pacific Bar Association (IPBA)

    PUBLICATIONS

  • Exclusive contributor to the International Law Office’s Legal Newsletter on Arbitration, including the following:
  • Federal Court reinforces law that supervisory courts may review arbitral awards
  • High Court clarifies proceedings under Arbitration Act
  • Federal Court clarifies statutory rights granted by Advocates Ordinance
  • High Court gives effect to parties’ intention in the face of ambiguously drafted arbitration clause
  • Malaysian courts continue to give effect to arbitration agreements

AWARDS & RECOGNITION

  • Asialaw Leading Lawyers (2021) – “Notable practitioner” in Dispute Resolution
  • Chambers Asia-Pacific (2014 – 2020) – “Leaders in their Field” in Dispute Resolution
  • The Legal 500 Asia-Pacific (2010 – 2012, 2014, 2019 and 2020) – “Recommended Lawyer” in Dispute Resolution
  • Expert Guides (2018 and 2019) – “Leading Practitioner” in Commercial Arbitration and Women in Business Law

ARBITRATION EXPERIENCE INCLUDES:

  • Disputes involving the provision of a cellular blocking system valued at over RM250 million
  • Disputes involving payment for chilled water supplied by a district cooling plant where the sums involved exceed RM200 million
  • Disputes involving delay claims for a national infrastructure project
  • Disputes in a multimillion dollar ICC arbitration involving the designing, manufacturing and supplying of a steel manufacturing plant
  • Disputes involving a warehouse management and logistics coordination agreement
  • Disputes involving development agreements for digital electric vehicles.
  • Dispute involving an agreement for the development of an integrated tourist resort.
  • Dispute involving warranty claims for a car tracking system.
  • Disputes involving the provision of pharmaceutical supplies to a government concessionaire
  • Disputes involving the breach of marketing agreements in respect of the marketing of coal
  • Dispute involving the provision offshore services in respect a charter party.
  • Disputes involving the design and construction of residential homes for public servants
  • Disputes involving a contract for the supply of resources for an automated enforcement system
  • Disputes involving the breach of a distributorship agreement
  • Disputes involving a hotel management project
  • Disputes involving the development and supply of a digital broadcasting system
  • Disputes relating to a software licence agreement for the supply and implementation of a software trading system
  • Disputes arising from the provision of consultancy services for the procurement of oil and gas projects
  • Dispute involving a scholarship training programme
  • Joint venture disputes, breaches of training programmes, warranty disputes, sale of business, contracts for services
  • Disputes relating to a plantation company in respect of the sale of a plantation
  • Disputes involving a Privatisation Cum Development Agreement involving a Waterfront Project
  • Disputes in respect of a telecommunications joint venture
  • Enforcement/Setting Aside arbitral awards

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