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.