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Commentary
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Shearn Delamore & Co | Malaysia | 14 Sep 2021

Now you see me, now you don't: what can be done if a bank fraudster's identity is unknown?

In the age of the Internet and technology, banking scams and fraud abound. Where such bank fraud is committed, it is often the case that the fraudster disappears and their identity remains unknown. How courts grant relief where the identity of the perpetrator of a bank fraud is unknown was addressed in two Malaysian court decisions in 2021. It is hoped that the principles set down in these......
Commentary
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Shearn Delamore & Co | Malaysia | 13 Feb 2020

Court discharges interim injunctions granted pursuant to Section 11 of Arbitration Act

The high court recently set aside interim injunctions which had been granted pursuant to Section 11 of the Arbitration Act 2005 following an inter partes hearing. With this decision, the high court has confirmed that interim injunctions granted pursuant to Section 11 of the Arbitration Act may be set aside on evidence of suppression of material facts leading to the grant of the interim......
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Shearn Delamore & Co | Malaysia | 12 Dec 2019

It's confirmed! CIPAA applies prospectively to construction contracts

After much anticipation, the Federal Court has finally confirmed that the Construction Industry Payment and Adjudication Act 2012 applies only to construction contracts entered into after the act took effect on 15 April 2014. As such, any adjudication proceedings based on a claim arising from a construction contract which was entered into before that date, including adjudication decisions,......
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Shearn Delamore & Co | Malaysia | 17 Oct 2019

High court rules that non-parties to arbitration are not bound by confidentiality

A high court recently ruled that the prohibition against third parties publishing, disclosing or communicating information relating to arbitration proceedings does not extend to non-parties to an arbitration. This decision will affect the extent to which the confidential documents used in arbitral proceedings remain confidential.
Commentary
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Shearn Delamore & Co | Malaysia | 8 Aug 2019

Federal Court rules on test applicable to applications to restrain arbitration proceedings made by non-parties

The Federal Court recently overturned a Court of Appeal decision on the test which applies to applications to restrain arbitration proceedings made by non-parties to the proceedings. The Federal Court concluded its judgment by affirming the findings of the High Court in this case, including that the balance of justice was in favour of the injunction order and that there were serious issues to......
Commentary
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Shearn Delamore & Co | Malaysia | 23 May 2019

Court of Appeal determines that negative declaratory arbitration awards are enforceable

A recent Court of Appeal case addressed whether a negative declaratory arbitration award is enforceable. The decision emphasises the narrow grounds that enable the high courts to refuse to recognise or enforce an arbitration award, as long as the requirements of Section 38(2) of the Arbitration Act are complied with. It also establishes a precedent that there is no barrier to the enforcement......
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Shearn Delamore & Co | Malaysia | 4 Apr 2019

Court clarifies test applicable to applications to restrain arbitration proceedings by non-parties

In a recent Court of Appeal case, the plaintiff sought an injunction to restrain arbitration proceedings between the second, third and fourth defendants, despite the fact that it was not a party to the proceedings. Among other things, the court had to consider whether Sections 10(1)(a) and 10(3) of the Arbitration Act 2005 apply to non-parties to arbitration proceedings and determine the test......
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Shearn Delamore & Co | Malaysia | 17 Jan 2019

Court rules on threshold to set aside arbitral award that conflicts with public policy

The Federal Court recently clarified the high threshold required for an arbitral award to be set aside on grounds of public policy pursuant to Section 37 of the Arbitration Act. According to the court, although public policy is a broad concept, when applying it for the purpose of setting aside an award under Section 37, it should be read narrowly. Further, even where such a conflict with......
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Shearn Delamore & Co | India, Malaysia | 18 Oct 2018

Another failed attempt by Indian government to set aside arbitral award before courts

In 2005 the Indian government unsuccessfully applied to the Malaysian courts to set aside a partial award issued by the arbitral tribunal. In 2014 the Indian government issued the defendants with a notice to show cause, prompting the defendants to request the tribunal to be reconvened since there was a dispute on the quantification of sums payable. The tribunal granted the final award and the......
Commentary
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Shearn Delamore & Co | Malaysia | 9 Aug 2018

Arbitration Act 2005 does not oust courts' inherent jurisdiction

The legal battle between La Kaffa International Co Ltd and Loob Holding Sdn Bhd, which has garnered much public attention, recently made its way to the Court of Appeal. This court's decision clarifies that the Arbitration Act 2005 does not oust the inherent jurisdiction or the powers of the courts to order interim measures. However, by virtue of Section 8, the court will be slow to provide......
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