The Arbitration Act 2005: UNCITRAL Model Law as Applied in Malaysia
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BOOK REVIEW
The Arbitration Act 2005: UNCITRAL
Model Law as applied in Malaysia
Malaysia became the latest Asian
country to join the UNCITRAL
family of arbitration laws with the
coming into force on 15 March 2006
of the Arbitration Act 2005 ('the
2005 Act'). It was widely agreed
that the 2005 Act's predecessor, the
Arbitration Act 1952 ('the 1952 Act')
(which was based largely on the
English Arbitration Act 1950 but also
contained unique provisions added
in 1980) was greatly outdated and
had outlived its usefulness2.
By contrast with Hong Kong and
Singapore, however, the road to law
reform in Malaysia was not an easy
one. At the earliest stages, information
on progress in the law reform process
was the equivalent of a State secret,
so that it was impossible for outsiders
(particularly foreign researchers) to
gauge whether and to what extent the
UNCITRALModel Lawon International
Commercial Arbitration ('the Model
Law') would be adopted in Malaysia.
To make matters worse, the arbitration
law reform movement, whilst united
on the need for fundamental reform,
divided into two rival camps, the
conservatives and the modernisers,
the former headed by the Malaysian
Institute of Arbitrators, which wanted
separate Acts for domestic and
international arbitrations, and the latter
by the Malaysian Bar Council, which
argued for a single Act based on the
Model Law3.
The end result was avictoryforthe
Bar's approach. The 2005 Act applies
the Model Law4 to all arbitrations
conducted in Malaysia, but at the
same time provides a dual r~gime
(as in Hong Kong) for domestic and
international arbitrations. The 2005
Act is closely modelled on the New
Zealand Arbitration Act 1996; for
example, it provides for a number opt-
in provisions for domestic arbitrations
only, dealing with (inter alia)
consolidation and concurrent hearing
of separate references, determinaton
of preliminary points of law by the
High Court and appeals against
awards. The 2005 Act also contains
some additional provisions that apply
to both domestic and international
arbitrations, including provisions on
arbitrabil ity, the seat of the arbitration
and the immunity of arbitrators and
arbitral institutions.
Sections 6-21 and 22-39 inclusive
of the 2005 Act follow the same order
of provisions as arts 3-36 of the Model
Law. The majority of these provisions
modify, either to an obvious or a subtle
extent, their Model Law counterparts.
Sections 2 (interpretation) and 3
(application to arbitrations and awards
in Malaysia) operate to the exclusion
of, respectively, arts 2 and 1 of the
Model Law.
From this brief summary, it can
be seen that the Model Law does not
apply in an entirely straightforward
fashion in Malaysia. Enter, therefore,
the commentary by Messrs Rajoo and
Davidson who, as leading members
of the Malaysian Bar Council's ad
hoc arbitration committee, are aptly
qualified to guide users around the
highways, byways and alleyways of
the 2005 Act.
The authors comment on the
Act, both concisely and incisively,
on a section-by-section basis. The
commentary is broken down into
manageable parts by reference to
a contextual introduction to each
section, followed by analysis of each
subsection and words and phrases,
drawing attention in each case to how
provisions add to or subtract from the
Model Law. Where appropriate, the
commentary is highly comparative,
drawing primarily on the arbitration
laws of England & Wales, Hong
Kong, New Zealand and Singapore
and case law decided thereon. The
approach of this book is also highly
practical, drawing attention, for
example, to procedural options that
may face arbitrators and lawyers
under particular provisions. In this
regard, the book bears favourable
comparison with similar leading texts
from other jurisdictions'.
To sum up, this is a most useful text
for all who are involved or interested
in arbitration in Malaysia, whether
arbitrators, practitioners or students,
and a valuable contribution to the
comparative study of arbitration in
Model Law jurisdictions.
Robert Morgan
Barrister (England & Wales,
Queensland)
Consulting Editor
1 Sundra Rajoo & W S W Davidson (2007,
Petaling Jaya, Selangor: Sweet & Maxwell
Asia), ISBN 13: 978-983-2631-81-1),
xxxvi+293 pp, casebound.
2 The 2005 Act also repealed the Convention
on the Recognition and Enforcement of
Foreign Arbitral Awards Act 1985.
3 For an account of the law reform process
and a summary of the provisions of the
2005 Act, W S W Davidson & S Rajoo,
The Malaysian Arbitration Act 2005 and
the UNCITRAL Model Law [2006] Asian
DR 80-85.
4 The original (1985) version).
5 For example, The Arbitration Act 1996
(4 h Edn) by Harris, Planterose & Tecks
(England).](ViewImageLocal?handle=hein.kluwer/asidpurv0010&div=13&collection=&method=preview&ext=.png&size=3)
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