Since 2006, the law has been the main source of law and regulation for international and domestic arbitration. Section 13 of the Act also provides that the parties are free to determine the procedure for appointing an arbitrator or presiding arbitrator. Otherwise, the law provides for procedures for the same, which generally cover three circumstances that may arise, namely: (i) if there is no agreement between the parties on the appointment procedure in their arbitration agreement; (ii) in the event of disagreement between the parties; or (iii) they refuse to exercise the right to appoint a member of the arbitral tribunal. In each of these situations, the parties may request the Director of AIAC to appoint the arbitrator, who must do so within 30 days, otherwise the parties may apply to the High Court for such an appointment. The Court of Appeal held that while subsections 10(1) and 10(3) of the 2005 Act do not apply to persons who are not parties to the arbitration, this does not mean that a non-party is free to derail pending arbitration: the objective of the 2005 Act must be duly taken into account. and the courts should be aware of the ongoing arbitration. The Court of Appeal also held that an injunction to refrain from arbitration should only be issued if the conditions set out in J Jarvis & Sons Limited v. Blue Circle Dartford Estates Limited31 are met. The test in Keet Gerald Francis Noel John v. Mohd Noor Bin Abdullah & Ors32 is a general test for issuing injunctions and does not apply if a person who is not a party to the arbitration attempts to restrict the arbitration. Such a request by a non-party to arbitration would be granted only if the injunction does not harm the claimant in the arbitration and if the continuation of the arbitration would be depressing, vexatious, unscrupulous or abusive.

International arbitration is defined in law as arbitration in which one of the parties to the arbitration agreement has its registered office, the seat of the arbitration is in a state outside Malaysia, or the subject matter of the dispute or a substantial part of the commercial obligations of the parties. International arbitration could also occur if the parties expressly agree that the arbitration concerns more than one State. On the other hand, domestic arbitration is defined as any arbitration that is not an international arbitration. Conflict of laws rules are applied by Malaysian courts with respect to the determination of law for arbitration agreements. The general principle is that in the absence of an express choice of the applicable law of the arbitration agreement or notification to the contrary, the law that has the closest and most real connection to the arbitration agreement is the law of the seat of arbitration, i.e. the lex arbitrii (see Thai-Lao Lignite Co Ltd & Anor v Government of the Lao People`s Democratic Republic [2017] 9 CLJ 273). There is nothing in the law that requires that the award be granted within a certain period of time. Section 46 of the Act gives the High Court the power to grant an extension of time set out in the arbitration agreement for the issuance of an arbitral award. However, such intervention by the court may be excluded by mutual agreement between the parties.

In accordance with Rule 11 of the AIAC Rules, the standard time limit for the issuance of the final award is limited to three months from the date of final submission; this period may be extended in agreement with the parties and in consultation with the Director of AIAC. The common law position on the Champertous agreements suggests that explicit regulation is recommended before third-party funding is accepted in international arbitration proceedings with a Malaysian seat. AIAC rules penalize third-party funding, unless this is excluded by relevant legislation or court orders. The Court of Appeal also reiterated its position that, despite section 8 of the 2005 Act, which states that “no court may intervene in matters governed by this Act unless provided for in this Act”, the courts may not be deprived of their inherent jurisdiction to act in matters relating to arbitration. It was pointed out that article 8 only calls for minimal intervention by the courts and not any intervention at all, although the courts will be slow to remedy the situation because of article 8 (although this is not clearly stated in the 2005 Act). International arbitration registrations with AIAC have changed little over the past three years. In 2018, AIAC registered ten international arbitrations; in 2019, AIAC recorded a total of eight international arbitrations; and in 2020, AIAC recorded a total of 11 international arbitrations. The decision should remind parties to carefully consider the wording of their arbitration agreements whether they wish to include all parties concerned in an arbitration agreement or exclude certain types of claims and allegations from arbitration, while preserving the effectiveness of their dispute settlement procedures. The amendments to the Arbitration Act 2005 2018 allow for the claim of interests before and after the award for arbitration proceedings that commence after the entry into force of the legal amendments (see UDA Land Sdn Bhd v Puncak Sepakat Sdn Bhd [2020] MLJU 892 (High Court)).

Malaysian courts do not have the power to intervene in arbitration once an emergency arbitrator has been appointed, except in situations expressly provided for in the Arbitration Act 2005, . B such as the decision of an appeal against the decision of the emergency arbitrator to challenge the arbitral tribunal without success. (c) the parties have expressly agreed that the subject matter of the arbitration agreement concerns more than one State. To keep pace with the development of technology, a new subsection 9(4A) of the Act provides that an arbitration agreement is considered written when the electronic communication between the parties takes place by data courier that includes the exchange of e-mails and the electronic exchange of data – provided that the information contained therein is accessible for future reference. Unless the parties agree otherwise in their arbitration agreement, arbitration shall commence on the day the arbitration is ordered by one party to the other party to refer the dispute to arbitration. With the exception of section 23 of the Act, which requires that a request for arbitration be made in writing, there are no formal requirements under the Act to file the application. Certain institutional rules, if adopted by the parties, may require that certain issues be specified in the request for arbitration. In accordance with section 13 of the Arbitration Act 2005, where the parties cannot agree on the procedure for appointing arbitrators, in the case of a panel of three arbitrators, each party shall appoint one arbitrator and the two appointed arbitrators shall appoint the third arbitrator as presiding judge. If the arbitrators are not appointed within the time limit, either party may at any time request such appointment from the Director of the Asian Centre for International Arbitration, Malaysia. .