In Ng Chee Yew Sdn Bhd v IJM Corp Bhd(1) an application was filed to remove an arbitrator from having further conduct in an arbitration. The grounds put forward in support of the application included allegations of misconduct by the arbitrator regarding:
- the manner and procedure under which the proceedings were conducted, which disregarded the requirements and wishes of the applicants and contravened the rules of natural justice;
- cross-examination in the absence of counsel, and continuation of proceedings when new solicitors had just been appointed;
- the scheduling of the matter for hearing when the case management had not been completed; and
- failure to disclose a previous injunction restraining the arbitrator from continuing with arbitration proceedings pending the disposal of an application for removal for misconduct.
The court found that a case for removal had not been made and the conduct of the arbitrator did not warrant the interference of the court. In so doing, the court reiterated the House of Lords decision in Bremer Vulkan Schiffbau v South India Shipping Corp Ltd(2) with regard to an arbitrator having full discretion to determine the conduct of the arbitration.
However, in considering the removal application, the court allowed the arbitrator to be heard and concluded that it was difficult to conclude objectively that the arbitrator's continued presence and authority over the arbitration "will not be seen as an act of miscarriage of justice". There was also concern that if the arbitrator continued to preside over the arbitration, the ultimate award may be liable to be set aside. It was on this ground that the High Court exercised its discretion to revoke the authority of the arbitrator and to hold that the arbitration agreement would cease to have effect with respect to this dispute.
The High Court relied on its powers under the 1952 Arbitration Act, which provide for the removal of an arbitrator on grounds of misconduct or lack of impartiality. A reading of the judgment does not appear to reflect that this conduct was found as a fact.
For further information on this topic please contact K Shanti Mogan at Shearn Delamore & Co by telephone (+60 3 2070 0644), fax (+60 30 2078 5625) or email ([email protected]).
(1) High Court, Kuala Lumpur,  7 MLJ 122.