I received a request for mediation from an architect friend whom project has reached a dead-lock. Apparently, the pandemic has more often than not, caused havoc to the construction industries. I am more welcome to mediate for the parties. What happened next, send shivers to my spine. As a practice, I always perform a pre-mediation meeting with the parties. Foremost, it allows me to set out from the onset the procedures and efforts in mitigating parties’ expectations of the mediation. Second, is to allow the mediator to understand the nature of the dispute more and to correlate information.
The parties informed me that, the project started on a good footing, but ended on a bad note of delay and non-payment. That is very common in most of the disputes, I encountered. I thought to myself that this matter is mediatable. The architect also informed that since the project has gone ‘sour’ the contractor has in fact made an official complaint to LAM on the basis of the architect failing to perform its role as a contract administrator. That matter, is another good story for another day. Notwithstanding the complaint, the contractor proceeded to mount a claim against the employer. But realizing that it is going to be an expensive affair, they decided to mediate their disputes.
Upon probing further, they disclosed that from the onset, the employer has requested the project to be procured based on two separated contracts. One is as per the tendered sum, [cheaper-version], we called contract-A, two, the employer’s request [manipulated version], we called contract-B. Contract-B was necessary because the Bank would only finance 80% of the contract sum. So, in order to finance 100%, the tender price will need to be increased another 20%, thus the manipulation. Problem arises is when the employer refused to pay and in retaliation, the contractor demanded that they had never agreed to contract-A and all these while they only agreed on contract-B.
So, what made me shiver is the legal question of whether contract-B being the manipulated version is a fraudulent misrepresentation to the bank? If so, being a fraud, the case is criminally laced, can mediation be proceeded on this account?
The law governing mediation holds, foremost, “this Act shall not apply to – (a) any dispute regarding matters specified in the Schedule [11. Any criminal matter]”; second, “notwithstanding ss(1) [no person shall disclose any mediation communication], mediation communication may be disclosed if, (c) the disclosure is required under this Act for the purpose of […] criminal proceedings […]”; third, “Any mediation communication is privileged […], (2) notwithstanding ss.(1) [privilege], the mediation communication is not privileged if – (d) it is used or intended to be used to plan a crime, […] to conceal a crime […]”; and finally, “the mediator shall not be liable […] unless the act or omission is proved to have been fraudulent […]”.
The law governing fraudulent misrepresentation holds, that ‘misrepresentation’ is, being an unambiguous ‘false statement of facts’, addressed to the party misled, inducing the ‘victim’ into entering a contract. However, the law assumes that one commits fraudulent misrepresentation, which is a criminal offence, and the burden of proof is vested upon the defendant
The fact is the mediation is yet to commence; there is an attempt to fabricate the contract sum for the purpose of concealment and fraudulent misrepresentation may have elementally observed but has yet to be ascertained by the court. In application, the request of the employer on contract-B contains the element of fabrication, the contractor, consultant QS and architect are equally involved in such act. Matter turns complicated when the consultant QS who facilitate such arrangement had since passed away, leaving the architect to be potentially ‘grilled’ in the court of law.
Concluding, the mediation was not conducted owing to the element of crime. Parties were left to resolve their matters amicably. This is the sort of dispute that can never be mediated, arbitrated nor adjudicated. The only venue for recourse is the criminal court. Lesson learnt, it is a very common practice in the industries that a separate contract was kept for different purposes and this followed by issuance of certificates by the consultants. As contract administrator, we cannot guarantee that parties will keep to their end of the bargain, so, when matters are not within the controls anymore, hell break loose and consultants are trapped. Worth the risks?
 S.2(a) Mediation Act 2012 (‘MA2012’)
 Kleinwort Benson v LincolnCC.2AC349
 Brennon v BoltEXCACiv1017
 Renault v FletproEWCH2541
 Hedley Byrne v HellerAC465
 Derry v Peek(1889)14AppCas337
 Barclays Bank v O’Brien1AC180
 Esso v MardonQB801
[POSTSCRIPTS]: One interesting feedback that I get from an Architect was, "Can an Architect be a Quasi Arbitrator?" To answer that, we ought to ask the question as to whether Arbitration is a business of Law or Architecture? The question led me to search any legal case that address such and I found that there is indeed one!
An argument arise when the business of architecture also include being arbitrator or more aptly known as quasi-arbitrator. What is ‘quasi-arbitrator’? There is no legal definition of ‘quasi-arbitrator’, and the closest are given as:
Per Lord Reid, “person who undertake to act fairly have often been called quasi-arbitrator […] all persons carrying out judicial function must act fairly […] there is nothing judicial about an architect’s function in determining whether certain work is defective. There is no dispute. He is not jointly engaged by the parties. They do not submit evidence as contentious to him. He makes his own decision and comes to his own opinion.”
Per Lord Salmon, “[…] no more reason for regarding the architect as being in the same position as a judge or arbitrator than there is for so regarding the Valuer […] The descriptions 'quasi-arbitrator' […] have been invoked but never defined. […] Judges and arbitrators have disputes submitted to them for decision […] evidence and the contentions of the parties are put before them […] They then give their decision. None of this is true about the valuer or the architect who were merely carrying out their ordinary business activities. Indeed, their functions do not seem to me even remotely to resemble those of a judge or arbitrator.”
Arbitration falls within the ambit of law, not architecture as the saying goes, when you have a dispute, you go to the lawyers, not the architects. Therefore, it cannot be said that arbitration is an extension of the knowledge, study and practice of architecture and the various arts and science connected therewith.
 Sutcliffe v Thackrah 1 All ER: at p.864
“IF ITS AIN’T BROKEN, IT’S NOT WORTH MENDING” – A LOOK INTO A ‘DYSFUNCTIONAL’ DISPUTE CLAUSE
This article attempt to demonstrate how a scenario requiring a ‘legal advice’. The scenario given is fictional, but the application of law mirrored real event. Any resemblance of the character in this scenario, to anyone alive or dead or any institution existed or non-existent, is purely coincidental.
[SCENARIO]: ‘Sure-win’ and ‘Must-win’ enter into a contract issued by ‘Malu-Usia’ Society of Project-Managers (“MSPM”), hereinafter ‘MSPM-Form’. The form contains an exclusion clause fine-printed, “parties are held to rely on their judgement when using this form of contract and MSPM takes no liability whatsoever to anyone in connection with the usage of the form”. The dispute clause contained therein, state “Any dispute, arising out of or relating to this contract, shall be finally determined by arbitration, by applying to the President of Malu-Usia’ Society of Project-Managers (“MSPM”) to appoint an Arbitrator, in accordance with the MSPM Arbitration Rules in force at the time of the commencement of the arbitration.”
Parties went into dispute. Sure-win commence arbitration by an application to MSPM President, as they cannot agreed to one another on the candidate of the arbitrator. The parties foresee that an ‘institutionalize administered arbitration’ would be fair and just. An arbitrator was appointed and the proceeding went on as usual. The counsel of ‘Must-win’ found out that the constitution of incorporation of MSPM in accordance with the Society Act of Malu-Usia, does not contain any provision that MSPM can accord any services of alternative dispute resolution (‘ADR’). In fact, all statutes of Malu-Usia mirrored those of the Malaysian Law. The counsel pose a challenge that due to the alleged dysfunctional of the dispute clause, his client Sure-win’s position has now been prejudiced on the basis that he has been misled fraudulently by MSPM through the use of the MSPM-Form. ‘Sure-win’ is contemplating to sue MSPM.
You are appointed by MSPM. Discuss on the point of law, the legal implications of both your client and Sure-win.
To consider the legal implications of both Sure-win and MSPM, [THE ISSUES] are: foremost, whether MSPM has the jurisdiction to provide services beyond what has been incorporated in its object of incorporation in accordance to the law? If so, whether MSPM breaches the law? If so, whether the MSPM President has the power to appoint arbitrator for the parties as in accordance to the provision of the dispute clause? If so, whether the President is acting on its personal capacity in such an appointment or in the office of the MSPM President? If so, whether the President has acted in ‘ultra vires’ against the object of the society he represented? If so, whether the dispute clause is dysfunctional due to the illegality of the dispute clause itself on the context of the severe lack of inherent jurisdiction of the society to provide such services? Is it not an ad-hoc arbitration that the MSPM President is at liberty to choose who he wishes? If so, whether the party has been fraudulently misled? Ultimately, who is liable?
[THE LAW] holds that: foremost, a society cannot provide any means of services that is not prescribed in its objects of incorporation. Further, the law also provided that, a President is an individual who acted in its capacity as representative of the society as an ‘office-bearer’ in accordance to the Act. In addition, the law provides that ‘misrepresentation’ is, being an unambiguous ‘false statement of facts’, addressed to the party misled, inducing the ‘victim’ into entering a contract. However, the law assumes that one commits fraudulent misrepresentation, which is a criminal offence, and the burden of proof is vested upon the defendant. As for the ‘fine-prints’, the law allows that terms can be incorporated by notice, where it must be given before the time of concluding the contract, terms must be contained/referred in the document i.e. contractual, reasonable steps be taken to bring the term to the party’s attention i.e. a ticket must be explicit, with a clause not in-front of ticket (not incorporated), reference to clause is obliterated (not incorporated), reference to a website (incorporated), and ‘more unusual and unreasonable’ is the clause, higher degree of notice is required. Finally, the issue of illegality in contract law, it holds that illegality comes in different ‘sizes and shapes’ and it is difficult to categorise. Generally, it covers ‘commissioning of a legal wrong’ or ‘contracts against public policy’. Illegality affect the contract in two ways, ab-intitio as to its formation and ‘in the performance’, i.e. whether a party entitle to sue to recover losses despite the illegality, on such basis he was unaware of the illegality? What if the party has knowledge about the illegality, he is unable to sue. The subject of the contract is made illegal ab-intitio, i.e. against the law.
[THE EVIDENCE] shows that: MSPM’s object of incorporation, does not contain any provision that MSPM can accord any ADR services. If so, whether the President is acting on its personal capacity in such an appointment or in the office of the MSPM President? By the act of the MSPM President, he in his capacity as an office-bearer, not representing himself, but the society and has acted ‘ultra-vires’ against the object of the society. Thus, whether MSPM has the jurisdiction to provide services beyond what has been incorporated in its object of incorporation in accordance to the law? The short answer is, ‘no’ as the law forbade it.  If so, whether MSPM breaches the law? MSPM has not only crossed the law, the society is tantamount to be deregistered.
If so, whether the MSPM President has the power to appoint arbitrator for the parties as in accordance to the provision of the dispute clause? Although the dispute clause require the President to appoint arbitrator, it is evidence that MSPM itself has no provision to accord ADR services. As such an illegal act cannot be contracted. 
If so, whether the President has acted in ‘ultra vires’ against the object of the society he represented? The President of MSPM has taken unto his own hand to perform an illegal act, on behalves of the society, knowing well that he has not accorded with the jurisdiction to do so. The powers [jurisdiction] has to be laid down from the constitution to the office-bearer. In its absent, where is the power to act?
If so, whether the dispute clause is dysfunctional due to the illegality of the dispute clause itself on the context of the severe lack of inherent jurisdiction of the society to provide such services? The original intent and purpose of the dispute clause is not dysfunctional. But arising from the illegality of performance by the President of MSPM, in breaching the very fundamental Act of the incorporation of the society, the dispute-clause, which is by itself a formal contract. The question of is severability in this case is irrelevant. Thus the object of a contract [dispute resolution services] cannot be illegal. Such consistent with the recent ruling that holds the dispute clause is governed by the law of contract, not the seat. Thus, the question how can such dispute clause, drafted so carefully to avoid any ‘pathological defects’ can be dysfunctional? The short answer, is the ‘act of appointing the arbitrator’ itself is made illegal, given this context.
Is it not an ad-hoc arbitration that the MSPM President is at liberty to choose who he wishes? The evidence shows that foremost, parties cannot agreed to one another on the candidate of the arbitrator, so they went to MSPM for institution administered arbitration. The parties foresee that an ‘institutionalize administered arbitration’ would be fair and just. This consideration, in itself, is res ipsa loquitur that arbitration is to be held as an instruction administered arbitration, not ad-hoc.
The evidence shows that the constitution of incorporation of MSPM does not accord any ADR services to be rendered. This lead to the next question, if so, whether the party has been fraudulently misled? It is undoubtedly, a contract exist between the user of the form and MSPM. The law holds that ‘misrepresentation’ is, being an unambiguous ‘false statement of facts’, addressed to the party misled and the law assumes that one commits fraudulent misrepresentation, which is a criminal offence, and the burden of proof is vested upon the defendant. Has the President aware of such false statement? Has he not aware of the constitution of the society he holds as office-bearer? Obviously, he has committed a crime.
Ultimately, who is liable? The evidence shows that ‘Sure-win’ position has now been prejudiced on the basis that he has been misled fraudulently by MSPM by virtue of the MSPM-Form. In the said form, it was fine-printed, “parties are held to rely on their judgement when using this form of contract and MSPM takes no liability whatsoever to anyone in connection with the usage of the form”. Can this be said to be an ‘exclusion clause’ for liabilities against MSPM? The law holds that terms can be incorporated by notice, where it must be given before the time of concluding the contract and ‘more unusual and unreasonable’ is the clause, higher degree of notice is required. Since the exclusion term is incorporated in the document, although as a fine print, it is legible and constitute a valid exclusion clause. In other words, contract advisors who does not strike out the dispute clause and replace with another more legitimate arbitrator appointing institution, had the greater chances to be liable. Notwithstanding such the MSPM with its entire retinue of office-bearer are criminally liable as to the effect of the breaches to the Act. Criminal offences cannot be contracted out.
[Concluding]: The fundamental breach is where the office-bearer, has been contracted to act illegally against the Act. The legal impacts are not only the dispute clause made dysfunctional, but include therein criminal offences and contractual liabilities to the contract advisors, namely Project Managers, Architects and QSes. Thus, caveat emptor.
POSTSCRIPT: Upon reading this article, Contract Advisors will have a field day of striking off and amending the dispute clauses, by making sure the institutionalize arbitrations are legitimate in accordance to the law, while lawyers with adverse award, will be lining up in court to set aside due to unenforceability and the police will start knocking at the door of the ‘illegal society’.
 Asia International Arbitration (‘AIAC’) model dispute-clause: ‘any dispute, controversy, difference or claim arising […], including the performance, breach, termination or invalidity thereof, as well as any non-contractual claims’
 International Commercial Court (‘ICC’) model dispute-clause: ‘or in connection with’
 ICC model dispute-clause: ‘settled’
 S. 13.(1)(c)(iii) Societies Act 1966 (‘SA1966’): ‘[the Registrar] may, in the following cases, cancel the registration of any society registered […] (c) if the Registrar is satisfied – (iii) that the society is pursuing objects other than the objects with which the society is registered;’
 S.2 SA1966: ‘office-bearer: means any person who is the president […]’
 Kleinwort Benson v LincolnCC.2AC349
 Brennon v BoltEXCACiv1017
 Renault v FletproEWCH2541
 Hedley Byrne v HellerAC465
 Derry v Peek(1889)14AppCas337
 Barclays Bank v O’Brien1AC180
 Esso v MardonQB801
 Olley v Marlborough Cort1KB532
 Chapleton v BarryUDC1KB532
 Taylor v GlasgowCorp.(1952)SC440.21
 Wilkes v Jessop(2007)CLY795
 Parker v SE.Railway(1877)2CPD461; Thompson v LMS. Railway1KB41:exclusion clause incorporated even if claimant was illiterate; Richardson,Spence v RowntreeAC217:in contrast if defendant knows claimant is illiterate
 Thompson v LMS.Railway1KB41 and Thornton v ShoeLane Parking2QB163:not given notice, not incorporated.
 Interfoto v StilettoQB433
 Handerson v Stevenson(1875)LR2Sc&Div470
 Sugar v LMS Railway1AllER172
 Impala Warehouse v WanxiangEWHC25(Comm)
 J.Spurling v Bradshaw1WLR461
 Johnson v DriefonteinAC484
 Re Mahmoud and Ispahani2KB716
 St.John Shipping v Joseph Rank1QB267
 Shaw v Groom2QB504
 Marles v Philip Trant1QB29
 Asmore Benson v AV.Dawson1WLR828
 St.John Shipping v Joseph Rank(1957)1QB267
 S.2 SA1966
 S. 13.(1)(c)(iii) SA1966
 Re Mahmoud and Ispahani2KB716
 S.49 SA1966
 Arbitration agreement is severable from the contract in which it is contained. Any challenge relating to the validity of the underlying contract will generally not affect the validity of the arbitration agreement.
 Enka v Chubb  UKSC 38
 Latin for "the thing speaks for itself."
 Kleinwort Benson v LincolnCC.2AC349
 Brennon v BoltEXCACiv1017
 Hedley Byrne v HellerAC465
 Derry v Peek(1889)14AppCas337
 Barclays Bank v O’Brien1AC180
 Esso v MardonQB801
 Olley v Marlborough Cort1KB532
 J.Spurling v Bradshaw1WLR461
 Chapleton v BarryUDC1KB532
 Let the buyer beware
MALAYSIA DAY SPECIAL: ‘UNITY IN DIVERSITY’ OF DIFFERENT SEATS WITHIN THE JURISDICTION OF MALAYSIA?
Postscript: In a similar decision about the application of the seat in the jurisdiction of Malaysia, the case of Tekun Cemerlang, it procures a similar decision that, West Malaysia lawyers are prohibited to represent disputants in CIPAA Adjudication where the seats are in Borneo. The repercussions spark suggestion that unlike arbitration, statutory adjudication has no seat. Such opinion rely on the provision of CIPAA, as its basis or argument, consistent with the Latin maxim of “generalia specialibus non derogant”. As of now, the decision remains.
 Tekun Cemerlang Sdn Bhd v Vinci Construction Grands Projets Sdn Bhd  11 MLJ 50
 s.15, Advocates Ordinance (“AO”). The finding of the HC is in contrast with the provision of CIPAA (Section 8(3) of the CIPAA provides that parties to an adjudication proceeding “may represent himself or be represented by any representative appointed by the party”.
 Chaw G, “Statutory Adjudication in Malaysia and ‘Sabah Proceeding’: A Paradox”, , 3 MLJ, p.10: the concept of a ‘seat’, which is part of the legal framework of arbitration law, does not exist in the law and practice of adjudication.
 ss 13, 15 and 16 CIPAA 2012
 a special law prevails over a general law
This article attempts to address a ‘celebration of diversity’ in our Malaysia-Day, where even the law seems to be given a different interpretation to achieve unity in diversity by the Federal Court in the recent judgement of Masenang Sdn Bhd v Sabanilam Enterprise Sdn Bhd , that has resulted in a tug-of-war of conflicting judgements between the HC in Kuala Lumpur and that of the HC of Borneo (“the conundrum”). To resolve this issue once and for all, the Federal Court holds that foremost, “The seat of a domestic arbitration cannot simply be said to be Malaysia. The seat is usually specified to be, for example, Kuala Lumpur, Malaysia, or Kota Kinabalu, Malaysia, or Penang, Malaysia, as the parties see fit to choose in their arbitration agreement or as determined by the arbitral tribunal pursuant to section 22 AA”; second, “the regulation and supervision of domestic arbitration is NOT governed by the law governing civil disputes such as the CJA which determines jurisdiction by ascertaining where the cause of action arose. It is the AA and arbitral law that governs this issue even in domestic arbitrations”; third, “the theory of the juridical seat is in point of fact directly relevant and essential in domestic arbitrations”; and fourth, “[…]the seat of a domestic arbitration is in Kuala Lumpur [falls within] the jurisdiction of the High Court in Malaya, the High Court in Sabah and Sarawak enjoys concurrent jurisdiction to regulate that proceeding […] would not be the correct position in law [the AA] recognises that the supervisory court is the court at the seat of the arbitration. No such contravention or conflict with Art 121 of the Federal Constitution can arise”.
In a nutshell, the finding of the court consistent with the arbitration law adopted by the ADR-community, that court will find in favour the ‘supervisory-court’ that follows the ‘judicial-seat of arbitration’ (‘seat’) agreed by the parties or determined by the arbitrator, when the seat is not determine. However, the novelty of the findings of the FC in contrast with that of the Court of Appeal, is that the seat applied to domestic arbitration has to be clearly stated as to the ‘place of arbitration’ i.e., Kuala Lumpur, Sabah or Sarawak. This imply that the application of ‘private international law (‘PIL’) in international commercial arbitration and to some extend of ‘forum non conveniens’ is applicable, a basis that the Appeal Court denounce the issue of the seat as irrelevant in domestic arbitration, as both the states of Malaya and Borneo, are under Malaysia and both share the same jurisdiction, including that of AA 2005. On the onset, this may look like ‘hair-splitting’ legal arguments to the minute-details that defied logic, but the intention is noble, that is to avoid a repeat of such conundrum.
Unlike the jurisdiction of the United Kingdom (‘UK’), Scotland is an entirely different jurisdiction, adopting the civil-law approach, as compared to England and Wales (‘EW’), with its common-law approach. Therefore, a domestic arbitration seated in Scotland is entirely different from one that is seated in EW. Both jurisdictions employed a different set of arbitration law, namely, Scotland with its Arbitration (Scotland) Act 2010, adopted the UNCITRAL Model-Law, while EW, the Arbitration Act 1996 (of England), that has more provision compared to the Model-Law. Thereupon, it makes sense as to state the actual place of arbitration in the English context, but for Malaysia, as a jurisdiction, that will be a novelty.
As it is, the finding and judgement of the Federal Court is binding. I can’t help to acknowledge myself as Malaysian yet is different from my counterpart in Sabah and Sarawak. Perhaps such is what it meant by ‘unity in diversity’. Happy Malaysia-Day, we are One ‘Diverse-Family’.
 Federal Court Civil Appeal No.: 02(i)-20-03/2020(S)
 Arbitration Act 2005: Seat of Arbitration
 Op-cit, para 185
 Ibid, para 140: “Applying the well- known Latin maxim of generalia specialibus non derogant, a special law prevails over a general law”
 Ibid, para 170
 Ibid, para 169
 Article 121: […] (a) one of the States of Malaya, which shall be known as the High Court in Malaya and shall have its principle registry in Kuala Lumpur; and (b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Borneo and shall have its principle registry at such place in the States of Sabah and Sarawak […].
 Federal Court Civil Appeal No.: 02(i)-20-03/2020(S), para 136
 Conforming to the principle of party autonomy.
 Conflict of laws
 Another forum or court is more appropriate to hear the case
CAN A NON-INDEPENDENT ARBITRATOR ACTS INDEPENDENTLY?
Postscript: An interesting paper shed some lights on the subject of ‘independence’, a rarely explore subject in the field of arbitration. It states, the requirements for impartiality has been enshrined in ICC-Rules, LCIA-Rules, UNCITRAL-Rules, UNCITRAL-Model Law, AAA-Construction Industry Arb. Rules, IBA-Rules on Ethic, IBA-Guidelines on Conflicts, ICSID-Rules and also the Malaysia Arbitration Act 2005. Interestingly the UK arbitration Act 1996 is silence on this provision of being, ‘independent’ and the question is why? Such omission is deliberate as in the ‘DAC Report’, ‘[Inclusion] of independence would give rise to endless arguments […] almost any connection (however remote) has been put forward to challenge the ‘independence’’. This shows that the term, independent and impartial ought to be distinguished. The dictionary prescribed, independent as, ‘free from outside control’. Challenge on the notion of ‘independence’ has been diverse, i.e. conflict of counsel and the nominated arbitrator, in a personal injury case where the recorder is in conflict with both counsels and the classic case of Porter v Magill.
 Stuart Allen, Barristers’ Chambers in England and Wales: The Role of Impartiality and Independence in International Arbitration, LLM,RGU
 S.14(1) Malaysian Arbitration Act 2005 (AA)
 Julian, Loukas, Stefan, Comparative Commercial International Arbitration (1st ed. Kluwere Law Arbitration 2003),p.255-273
 Lord Justice Saville, ‘DAC on Arbitration Law 1996 Report on Arbitration Bill’ 13(3)102
 Oxford Dictionary (3rd.ed.Oxford University Press 2018)
 Brescia Calcio SpA v West Ham FC Plc  ISLR, SLR40; ICC Case No.1653/GZ
 Smith v Kvaerner Cementation Foundation  EWCA Civ 242
  UKHL 67
Neutrality, independence and impartiality, the three key criteria of dispute resolutions be it arbitration, adjudication, determination or mediation. Various attempt has been made to clarify the positions of these criteria, but the notion of independence herewith is given a different perspective as to: what is the meaning of independence? Can a person who is not independent acts independently? If so, can a decision by an arbitrator who is not independent be challenged?
Definition given to ‘independence’ are generally referred to private, professional or business-related relationships of the arbitrator to the parties or counsels involved in the arbitration; “likely to give rise to justifiable doubts”; Whereas an independent arbitrator is one who does not have any type of personal and/or employment relationship, needed to ensure that justice is seen to be done; Independence refers to objective and external manifestation of the relationship between the parties, counsels and co-arbitrators; and shall not only be independent but he shall also be perceived as independent by third parties.
The standard of independence however, is subject to the institution’s rules or the seat of the arbitration but generally, common law jurisdiction will follow the English position of “the real danger of bias” test which are very specific. Thus, the question of independence and bias boils down to, can a person who is not independent acts independently?
Who is a person deemed not independent? In this context, can a person under an employment of another person be deemed independent? Unlikely so, because this person under employment is constantly under the influence of the employer, via the employment agreement, bound in some jurisdiction under the Employment Act. There is no obligation for the employer to make any disclosure to its employee, thus how can an employee in this instance, and in return, has sufficient knowledge to make any disclosure, while acting as an arbitrator without risking the “real danger of bias” implication? Even if the employer has consented, it will be very subjective through a third-party perspective that such an employed arbitrator can discharged its duty independently.
If so, can a decision by an arbitrator who is not independent be challenged? The law holds that a person who is approached in connection with that person’s possible appointment as an arbitrator shall disclose any circumstances likely to give rise to justifiable doubts as to that person’s impartiality or independence. An arbitrator may be challenged only if, the circumstances give rise to justifiable doubts as to that arbitrator’s impartiality or independence.
In summary, it is important for institution administered arbitration, to make sure not only a declaration is made that the potential arbitrator could discharged its duty independently, it must also confirm that the arbitrator is independent, unlikely to be under an employment of any private entities, as the rule under the “real danger of bias” test is also held in Malaysia.
 <https://www.ciarb.org/resources/features/independence-and-impartiality-of-arbitrators/>: Bruno Manzanares Bastida, ‘The Independence and Impartiality of Arbitrators in International Commercial Arbitration from a Theoretical and Practical Perspective’ (2007) 6 Revist@ e-mercatoria 1, 3 < https://ssrn.com/abstract=1491528> accessed 5 April 2012
 Model Law generally follows the IBA Guidelines: Nathalie Bernasconi-Osterwalder, Lise Johnson and Fiona Marshall, ‘Arbitrator Independence and Impartiality: Examining the Dual Role of arbitrator and counsel’ (2011) International Institute for Sustainable Development (IISD) 12 < http://www.iisd.org/pdf/2011/dci_2010_arbitrator_independence.pdf > accessed 5 April 2018.
 Malintoppi, L., Part III Procedural Issues, Chapter 20 - Independence, Impartiality, and Duty of Disclosure of Arbitrators, in Muchlinski, P. T., Ortino, F. and Schreuer, Ch. (eds.), The Oxford Handbook of International Investment Law, 2008, p. 807
 < https://jusmundi.com/en/document/wiki/en-arbitrators-impartiality-and-independence>
 <http://www.davidyek.com/adr/lessons-on-arbitrals-impartiality-halliburton-v-chubb>: Halliburton v ChubbUKSC48: the ‘real possibility of apparent bias’ by Lord Hodge
 S.14(1) Malaysian Arbitration Act 2005 (AA)
 Low Koh Hwa @ Low Kok Hwa (practising as sole Chartered Architect at Low & Associates) v Persatuan Kanak-Kanak Spastik Selangor & Wilayah Persekutuan and another case  MLJU 430
THE THREE-TENETS OF ARBITRATION, WHICH HELD SUPREME?
Some issues in arbitration that warrant some answers as to the question of party autonomy to agree on an ‘asymmetrical arbitration clause’ or an ‘unilateral option clause’ UOC, allowing one party rights to commence litigation; the question of independence and impartiality when a member of the tribunal was found to be in the apparent conflict with a witness of opinion called by the party; and the question of public policy where an award is rendered unenforceable arising from a sanction levy upon the country where the assets are located. These issues went to the ‘core tenet’ of arbitration being, party autonomy; independence and impartiality; and public policy rule. Which of these should take precedent over the other?
An ‘asymmetric-clause’ is a ‘one-sided agreement’ allowing one party ‘option to choose’ dispute resolution mechanism to self-advantages; contains therein the ‘unilateral option clause’ UOC, granting one party right to elect between arbitration or litigation, i.e, “[…] shall have the right to refer any dispute […], to a competent court in […] or any other competent court in any other country at […] sole discretion.” The criticism is obvious, as it lacks a ‘level playing field’, impeding into the equalities of the party to be heard, thus from an act of party autonomy to the obstruction of natural justice, commonly employed by specific industries i.e. banking and the construction sectors; contrast to the nature of arbitration to have ‘finality’ only to be reviewed by another court of competent jurisdiction; and promote the idea of ‘forum shopping’. Courts between common-law and civil-law are divided, i.e. UK, Hong Kong, the UAE and Singapore recognises UOC whereas Russia (issued a Digest) and France rejected UOC outright, thus it is now a question of public policy versus party autonomy, which remains supreme over the other? In the lacked of a consistent approach, party autonomy principle is not entirely absolute as it has to be view against the principle of public policy, as in the case of equality, public policies shall then take precedent.
Common that in a three-member tribunal, one party may raise a concern that an witness of opinion appointed by the other party must be excluded by the tribunal as the witness of opinion concerned was once a partner to a member of the tribunal thus the issues of conflicts and impartiality of the tribunal is now, in question. The criticism is one cannot just keep changing the member of the tribunal simply by introducing a witness of opinion that has conflict with any member of the tribunal, notwithstanding that the sole witness of opinion is the most unique available in the industry, such may not discount any attempt to employ ‘guerrilla tactics’ to derail the arbitration. Tribunal is confronted with the issues of impartiality versus natural justice, which held supreme? Impartiality has always been the cornerstone to the dispensation of justice. The law holds, threefold tests of bias, actual, imputed, apprehended or apparent bias. Actual bias is difficult to proof; imputed bias, once presented, will void the submission without proof of investigation into its likelihood or suspicion of bias; and apparent bias, is where a reasonable-public could harbour a reasonable-suspicion of bias and there is a sufficient degree of possibility of bias. There is little clarity on this as such the IBA Guidelines on Conflict, has provided Lists to categorically measure the degree of ‘conflicts’ but without the application of ‘case-specific judgment’, it remains just as ‘guidelines’ or ‘soft laws’. The recent case law shed some lights where court set aside an award on the basis of arbitrator apparent bias, in conflict with public-policy, breaching the rules of natural-justice. The court holds, the arbitrator must, statutorily, make full and timeous disclosure, which are likely to give rise to justifiable doubts as to the arbitrator's impartiality or independence, which would enable a 'fair-minded and informed observer' to decide objectively on whether there are justifiable doubts on the arbitrator's impartiality and/or independence. Therefore, considered that impartiality has always been the cornerstone to the dispensation of justice, tribunal would just have to consider the expert opinion just liked any other ‘witness’ and to draw its own conclusion as to the reliability of such ‘opinion’ and on such, the question of ‘independent and impartiality’ does not really surface.
With regard to sanction as public policy, two distinctive issues, one ‘non-arbitrability doctrine’ with regard to which law to apply in challenging the validity of the award? Second, the validity of sanction making an arbitration inarbitrable. Arbitrability, ‘involves …types of issues can and cannot be submitted to arbitration’; viewed as ‘objective’, matters can be arbitrated; and ‘subjective’, who can resort to arbitration. ‘Inarbitrability’, can challenge enforcement of arbitral award; public policy as basis of inarbitrability; fundamental to comply, tribunal must consider which lex arbitri, substantial law or lex fori, applicable? Sanctions are temporary restrictive, whereas public policy fundamentally legal-principles, stable to political changes. When sanction was imposed, binding only if parties could have known that they would be subjected to this rule, otherwise, they might selected another law, in which sanction would give effect only if they satisfied the conditions external to the applicable-law. Thus, public policy ultimately overrides party autonomy as to choose which forum as preferences.
On such account, among the three-tenets of arbitration, very likely that the following shall be the order of priority, independence and impartiality; public policy; and party autonomy.
 NB Three Shipping v. Harebell Shipping  EWHC 2001 (Comm); Deutsche Bank v. Tongkah Harbour  EWHC 2251 (QB)
 A3 v B3  ADGMCFI 0004: citing Pittalis v Sherrefettin  2 All ER 227
 Hong Kong Court of Appeal ( 3 HKC 580) and decision by the Singapore Court of Appeal ( SGCA 32).
 Sony Ericsson v Russia Telecom  No.1831/12
 UOCs also applied the Brussel I Regulation and the Lugano Convention. Arbitration agreements and therefore UOCs to arbitration are outside the scope of the Lugano Convention, Brussel I Regulation and its successor, Recast Brussels Regulation; The Rothschild Case  No 11-26.022;
 R v Sussex 1KB256; Findlay v UK 24EHRR221; W v M EWHC422(Comm)
 R v Gough AC646
 Porter v Magill 1UKHL67; Re Medicaments(No.2) 1WLR700
 Halliburton v ChubbUKSC48
 World Duty Free Co. v Rep. of Kenya ICSID Case No. ARB/00/7; R v Alex Julian Pabon  EWCA Crim 420.
 Gary B.Born, International Commercial Arbitration (Born, 2nd Ed.) p.243.
 <http://arbitrationblog.practicallaw.com/implications-of-economic-sanctions-on-international-arbitration>: some scholar opined that disputes involving economic sanctions are ‘arbitrable’
 Loukas A.Mistelis and Stavros L.Brekoulakis, Arbitrability: International and Comparative Perspectives, Int.Arb.Law.Lib.Vol.19 (Mistelis and Brekoulakis), pp.3&4, para.1-6.
 Emmanuel Gaillard and Domenico Di Pietro, Enforcement of Arbitration Agreements and International Arbitral Awards: The New York Convention in Practice (Cameron, 2008 Ed.), p. 503.
 Karl-Heinz Bockstiegel, Public Policy and Arbitrability, in Pieter Sanders (ed), Comparative Arbitration Practice and Public Policy in Arbitration, ICCA Congress Series, Volume 3 [Bockstiegel], p. 178: MODSAF v IMS  EWCA Civ 145
 George A.Bermann, Introduction: The Origin and Operation of Mandatory Rules, in Mandatory Rules in International Arbitration (Bermann & Mistelis Ed.2011) p.4.
 Melli Bank v Holbud Ltd  EWHC 1506 (Comm); DVB Bank SE v Shere Shipping Co Ltd  EWHC 232
 Art.V(2)(b)ML: allows the refusal of enforcement when enforcement would be ‘in contrary to the public policy of that country’; Westacre Investments Inc v. Jugoimport-SDRP Holding Co Ltd  EWCA Civ 1401
 Bockstiegel, pp. 184 and 185.
 Semanya v IFFA  4A 318/2018
MY MEDIATION LOG BOOK: ‘CRACKING’ A JOINT VENTURE
Fortunate for the past months, after lifting of the MCO, I had just completed another round of mediation between a contractor and a premise owner whom property has been severely damaged on account’s of the contractor’s work of excavating a huge basement, resulted in heavy soil erosion.
The legal rights of the parties were set aside to explore needs. Through an evaluative nature, my input as an expert-mediator in the construction sectors had negotiated for one party that it is simply a waste of time, repairing the existing structure in view that, one, the land value is more expansive than the structure itself, two, the design of the building has exceeded its relevant and dis-economy of scale... it is more appropriate to actually redevelop the entire premises into multi-storey structure.
On the other party, the negotiation was central upon a collaborative partnership to jointly redevelop the land, with a portion to be given in-kind while the rest as profit sharing. The landowner will contribute its land while the contractor to contribute building the entire structure. As for the consultants, it will naturally to be considered...
The parties agreed on the suggestions and mutually agreed on the terms as in a MOU, pending further deliberation on its details... as you can see mediation leads to future cooperation, not a zero sum games of dispute resolution. Will continue with another story on mediation done, in an ad-hoc basis. At the moment, institutionalize mediation was rather at the back burner due to non incentive given by the respective parties whom aims are litigation and dispute resolutions... this is one area, Architect has an active role to play.
CPC, CFO/CCC, VP CONUNDRUM
Back in 2018, a construction lawyer posed to me a question, “how the Architect can certifies certificate of Vacant-Possession (VP) without first issuing the certificate of Practical-Completion (CPC)?” Apparently many people is confuse with the salient differences between these, CPC, Certificate of Fitness for Occupation (CFO), Certificate of Completion and Compliance (CCC) and VP.
Foremost, the lifecycle of project ends ‘contractually’ with a CPC, which is easier to recognise than define, no hard and fast rules; existence of latent (unknown) defects cannot prevent practical completion, defects are d’minimis; in relation to patent defects, there is no difference between uncompleted items of work and an item of defective work that requires to be remedied; 'trifling' patent defects does not preclude practical completion; whether an item is 'trifling' is a matter of fact and degree to be measured against the intended purpose of the works; and mere fact that a defect is irremediable does not mean that works are not practically complete. A CPC is a demarcation of a completion within the construe of a construction contract, as provided by the standard form of contract. Practical-completion and its variant is a termed used also in other international forms.
Second, the lifecycle of project ends ‘statutorily’ with a CFO/CCC, which is objectively done by ‘self-certification’ and issuance of the Borang-F, upon completion of inspection and submission to the relevant authorities. This is a closure of a statutory-undertakings that building has been constructed in accordance to the approved-plans (drawings). Here, the principal submitting person undertakes statutory liability of the entire building for live.
Third, issuance of CFO/CCC is a condition precedent to the issuance of certificate for VP, marking the handing over of vacant possession of housing to purchasers with water and electricity ready for connection. Collectively, these certifications are statutorily required under the law. Other certifications for issuance of Strata Titles and Share-Titles are also warranted, marking that the strata plans are in accordance to the approved-plans/drawings.
So, logically, by order of priority CPC have to be issued first, before the issuance of CFO/CCC and ends with VP. However, there is not statutory requirement for the issuance of CPC prior to issuance of CFO/CCC as these certifications operate under different conditions. Saying thus, there are events that CFO/CCC has been issued before CPC. The legal-question is whether issuance of CFO/CCC actually signify the completion of the said building, i.e. practical-completion? If so, whether CFO/CCC can replace CPC, or deemed CPC to have been issued?
Unfortunately, the short answer is ‘no’. CPC, although, ill-defined, remains the opinion of the Architect. CFO/CCC, on the other hands, is the undertaking of the Architect. The level of liability differs and the implication to the respective legislation also differed. Thus, one cannot equate CPC with CFO/CCC.
Back to our lawyer friend, in the heated debate, his face turned rosy when I say, ‘no’ … and we did finally ‘chilled-out’ in the ‘other-bar’. He remains one of our ardent supporter in PAM as ‘industrial-partner’ and occasionally maintain his construction-law in 2 minutes via youtube.
 Mears v Costplan  EWCA Civ 502
 PAM Form of Building Contract, i.e. PAM1998, 2006, 2018
 JCTSBC2006: Practical Completion; FIDIC: Taking Over Certificate; NEC: Completion
 S.25; 25A, Uniform Building Bylaws 1984 UBBL
 Statute of Limitation or Longstop does not apply
 Third-Schedule G; H Cl.3, Housing Development (Control and Licensing) Act 1966 (HDA)
 S.9(1)(b)(i), Strata Title Act 1985; S.6(3), Strata Management Act 2013
ADJUDICATION WITH THE SPANNER IN THE GEARBOX
CIPAA Adjudication is no longer a dispensation of ‘rough-justice’ in a ‘fast-and-furious’ way. The true intention of CIPAA to expedite dispute-resolution as to enable contractor’s its life-source, which is payment, is off-tangent, into a ‘mini-trial’ or ‘mini-arbitration’, where counsels can actually test its evidence and arguments before going for a ‘final-resolution’, without giving ample ‘arsenals’ for the adjudicator to work on its own ‘competenze-competenze’; for a fee, far below of that of arbitration or the counsel’s own retainer, especially when ‘hearing’ is accorded.
CIPAA was once known to be of 88%-success rate for the Claimant, usually contractor, not until the first ‘spanner was thrown into the gearbox’, that Respondent has the right to raise defence at any point in time during the progress of CIPAA. Claimant has 5-days to put in its Reply, taking advantage of this, the tactical- maneuvering of an ambush with documents in the Response, during prolonged ‘holiday-seasons’, left very little time for Claimant to Reply. Does the matter stop at Reply? The answer is ‘no’… for most adjudicator may find that the entire Response is dedicated to a ‘single-objective’, to ‘remove’ the adjudicator for the lack of jurisdiction to preside over the adjudication. Thus, request for further submission i.e. rejoinder, sur-rejoinder, rebuttal and sur-rebuttal are requested. Will a rational adjudicator obliged to allow such, fearing ‘lack of natural justice’ disposition? Usually the adjudicator will give-in, eating into his 45-days to serve its Decision.
The story doesn’t ends there yet. There were attempt by counsel, usually Respondent, to seek for Hearing and Written-Submission. Such call was turned down by the HC, keeping faithfully to the spirit of CIPAA, which is dispensation of ‘rough-justice’ in a ‘fast-and-furious’ way. Having said that, some Respondent will put in ‘Expert-Report’ as evidence, some by the cartons of A4-boxes, mirrored such as in arbitration or litigation, holding faithfully to View-Esteem’s ruling, in Response, Rejoinder and maybe Rebuttal. Should the adjudicator allowed for hearing to review these ‘Expert-Report’ evidence? That is like walking tip-toe at the tight-rope, requiring a fine-balancing act, fearing a breach of natural-justice.
Alas, the Appeal-Court has then, opens a flood-gate, rendering breach of natural-justice if the adjudicator does not allow Hearing and Written-Submission, on the basis of insufficient time. The second spanner was thrown into the gearbox, swinging the pendulum to the Respondent, as with Hearing and Written-Submission, the chances voiding the entire CIPAA processes are very high. There is yet, procedural aspect of Hearing and Written-Submission in a conduct of adjudication available in the adjudicator’s tool-boxes, especially so when the notion of competenze-competenze is absent. The stroke of genius on tactical-maneuvering for a ‘weak-case’ is vested upon the conduct of Hearing and Written-Submission, to prolong the processes and along the way, to nail the adjudicator for prejudice.
Will the story ends here? Not likely. By this time, after serving the Claim, the adjudicator will more likely to call for a preliminary meeting, set the agenda for exchange of documents, fixing hearing dates and those procedural-rules that is common in arbitration, in place for adjudication which is a lacuna for a moment, for AIAC to pluck out the spanner from the gearbox. Wonder, is there additional adjudicator fee for hearing and such?
 View Esteem Sdn Bhd v Bina Puri Holdings Bhd  1 LNS 1378:
 MRCB Builders Sdn Bhd v. Wazam Ventures Sdn Bhd & Another Case  1 LNS 145
 GuangXi Dev & Cap Sdn Bhd vSycal Bhd  MLJU 1542
THE SETTLE OF THE ‘UNSETTLED-LAW’ IN CIPAA AS AT 2020
CIPAA apply prospectively with “conditional-payment” enforceable for contract prior 15th April 2014; not to be “contracted-out”; rarely granted “stay of adjudication” unless for specific “narrow-reasons” i.e. res-judicata or pre-qualify for stay requires commencement of arbitration/proceeding; zerorising Respondent’s claim; “non-certified” claims allowed; exempting government as disputing-party but exclude item not of “national-security”; consultancy-contract can be adjudicated including final-account; setting-aside under s.15 includes in-existence of an arbitration-award/judgement; allow new defences post payment-response; must accorded “hearing”, failing which “breach of natural-justice”; no-appeal on “ground of law”, even there is an “error of law”; exclude shipping and mining contract, but a platform-anchored into the land, is adjudicate-able; estoppel of party participated fully to raise any-objection on adjudicator’s-appointment; constitutionality of CIPAA upheld; rights to limit extension-of-time for submission, including adjudicating-EOT as “contingent jurisdiction”, and L&E; allowing claims of “pre-award” interest, only if such is claimed; non-mandatory for decision to be registered prior serving ‘winding-up’, but cautionary apply to company on “disputed-debts” owing to its “temporary-finality”; non-interference of court to “vary adjudication-decision”, awarding-costs nor “supplanting” adjudicator’s-order; and mandatory for principal to pay.
 Jack-In Pile (M) Sdn Bhd v Bauer (Malaysia) Sdn Bhd  1 CLJ 299
 Jack-In Pile 
 Ranhill E&C Sdn Bhd v Tioxide  1 LNS 1435
 Subang Skypark Sdn Bhd v Arcradius Sdn Bhd  11 MLJ 818
 Samsung C & T Corporation & Anor v Bauer (Malaysia) Sdn Bhd  MLJU 1690
 Foster Wheeler E & C (Malaysia) Sdn Bhd v Arkema Thiochemicals Sdn Bhd Anor  1 LNS 632; Punj Lloyd Sdn Bhd v Ramo Industries Sdn Bhd & Anor and another case  11 MLJ 574
 Tenaga Poly Sdn Bhd vs Crest Builder Sdn Bhd (unreported)
 Bina Puri Construction Sdn Bhd v Hing Nyit Enterprise Sdn Bhd  8 CLJ 728
 Mudajaya Corporation Bhd v Leighton Contractors (M) Sdn Bhd  5 CLJ 848
 ENRA Engineering and Fabrication Sdn Bhd v Gemula Sdn Bhd & Another Case  10 CLJ 333
 Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd & Another Case [ 2017] 1 CLJ 101
 Martego [ 2017]
 Wong Huat Construction Co v Ireka Engineering & Construction  1 CLJ 536
 Prestij Mega Construction Sdn Bhd v Keller (M) Sdn Bhd & Other Cases  1 LNS 1612
 View Esteem Sdn Bhd v Bina Puri Holdings Bhd  8 AMR 167
 Guangxi Dev & Cap Sdn Bhd v Sycal Bhd & Anor Appeal  1 CLJ 592
 VVO Construction Sdn Bhd v Bina MYK Sdn Bhd Anor  2 AMR 502
 SKS Pavillion Sdn Bhd v Tasoon Injection Pile Sdn Bhd  MLJU 1051
 MIR Valve Sdn Bhd v TH Heavy Engineering Berhad & Other Cases  8 CLJ 208
 YTK Engineering Services Sdn Bhd v Towards Green Sdn Bhd  5. AMR 76
 E.A Technique v Malaysia Marine and Heavy Engineering  WA-24C-96-06/2019
 Zana Bina Sdn Bhd v Cosmic Master Development Sdn Bhd  MLJU 146
 Amerin Residence Sdn Bhd v Asian International Arbitration Centre ( 1 LNS 904; Mega Sasa Sdn Bhd v Kinta Bakti Sdn Bhd & Ors  MLJU 1043;  1 LNS 1366
 Binastra Ablebuild Sdn Bhd v JPS Holdings Sdn Bhd and another case  MLJU 1260
 SKS Pavillion Sdn Bhd v Tasoon Injection Pile Sdn Bhd  2 CLJ 704
 Syarikat Bina Darul Aman Bhd & Anor v Government of Malaysia  MLJU 2381
 Milsonland Development Sdn Bhd v Macro Resources Sdn Bhd  MLJU 169
 Naza Engineering & Construction v SSL Dev 
 Bina Puri Sdn Bhd v Likas Bay Precinct Sdn Bhd  MLJU 864
 Maju Holdings Sdn Bhd v Spring Energy Sdn Bhd  MLJU 1196
 ASM Development v Econpile  WA-24NCC-363-07/2019
 Naza Engineering & Construction v SSL Dev 
 TRT Engineering (M) Sdn Bhd v Hansol KNM Greentech Sdn. Bhd  1 LNS 8
 Multazam Development Sdn Bhd v Felda Global Ventures Plantations (M) Sdn Bhd  11 MLJU 606
 CT Indah Construction Sdn Bhd v BHL Gemilang Sdn Bhd  1 CLJ 75
Postscript: An update that the Halliburton Test is also applied to CIPAA’s Adjudicators test of ‘apparent bias’ in a setting aside attempt, where the court held that the first rule of natural justice “overlaps with” but is “distinct from the Duty to be Impartial”, to include, the “real danger of bias” test (“Real Danger Test”) and the “real possibility of bias” test (“Real Possibility Test”).
 Rosha Dynamic Sdn Bhd v Mohd Salehhodin bin Sabiyee & Ors and other cases  MLJU 1222
 S 15 of the Construction Industry Payment and Adjudication Act 2012 (CIPAA)
 “fair-minded and informed observer”
 Bar Council v Tun Dato Seri Arifin bin Zakaria & Ors  4 MLJ 773
LESSONS ON ARBITRAL’S IMPARTIALITY – HALLIBURTON v CHUBB
Having now a local case employing Halliburton v Chubb on arbitrator bias and duty of disclosure, I had revamped my article that I wrote earlier this year in January, 19th.
In Halliburton v Chubb, the legal-test that applies to duty of disclosure, even if “real-possibility of bias” not established on facts, duty of disclosure arises as-if it might "reasonably" give-rise to doubt; assessment of “possibility of bias” following disclosure, should be applied through the perspective of "fair-minded and informed-observer", in "realities of international-arbitration" context and "custom and practice in the relevant-field of arbitration", i.e. provided no-breach of confidentiality, yet to provide as much information that if you can't disclose, otherwise arbitrator “must-resign”; and failure to disclose is that, observer can assess whether there is a “real possibility of bias”, be made at hearing-date to “remove the arbitrator”, and not at the arbitrator's acceptance-date of subsequent appointment.
In Low Koh Hwa @ Low Kok Hwa (practising as sole Chartered Architect at Low & Associates) v Persatuan Kanak-Kanak Spastik Selangor & Wilayah Persekutuan and another case  MLJU 430, the court set aside an award on the basis of arbitrator apparent bias, in conflict with public-policy, breaching the rules of natural-justice. The court holds, the arbitrator must, statutorily, make full and timeous disclosure, which are likely to give rise to justifiable doubts as to the arbitrator's impartiality or independence, which would enable a 'fair-minded and informed observer' to decide objectively on whether there are justifiable doubts on the arbitrator's impartiality and/or independence; estoppel cannot be relied if the applicant fails within the time-bar objection when an arbitrator failed to give ‘full and timeous’ disclosure, statutorily imposed; and impacted the award as the arbitrator "would have reached a different decision if not for the [failure to make full and timeous disclosure]"
Concluding, the Malaysian case did not concern multiple appointment as per Halliburton. It is significant that the applied principles determine the extent of an arbitrator's duty of disclosure and set threshold for setting aside an award for apparent bias. The court acknowledged the difficulty in proving ‘apparent bias’ yet it sends signal to arbitral institution not to only limit their panel of arbitrators to a small significant number, i.e. less than 20, when the disputing parties in the construction industries are limited.
 Porter v Magill 1UKHL67; R v Gough AC646: bias is met as long as the court is satisfied that there is a sufficient degree of possibility of bias.
 Davidson v Scottish Ministers(No 2)UKHL34:a legal duty of disclosure in s.33,1996Act
 R v Sussex 1KB256 at 259:justice should not only be done, but be seen to be done; Findlay v UK 24EHRR221:tribunal must be subjectively free from personal prejudice, be impartial from an objective viewpoint; W v M EWHC422(Comm)
 R v Gough AC646:real likelihood/danger of bias test; Re Medicaments(No.2) 1WLR700
 Helow v Secretary of State Home-DepartmentUKHL62:observer not-judge on any-point before acquiring full-understanding of both sides.
 Porter v MagillUKHL67:“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”; Johnson v Johnson (2000)201CLR488:fair-minded and informed-observer is “neither complacent nor unduly sensitive or suspicious”.
 A v B EWHC 2345(Comm); ASM Shipping v TTMIEWHC2238(Comm):requirement in English law that all arbitrators, appointed, comply with the same high-standards of impartiality, appears to be accepted as the legal-norm internationally.
 Dolling-Baker v Merrett1WLR1205(CA); Ali Shipping v Shipyard Trogir1WLR314; Development of City of Moscow v Bankers TrustEWCACiv314:English-seated arbitrations are both private and confidential.
 Halliburton v ChubbUKSC48:arbitrator’s obligation of confidentiality which prevent disclosure, is an unsettle law and case-sensitive.
 AWG v Alexander Fraser EWHC2786(Ch); TM v. Ghana PCACaseNo.2003-03
 PAO Tatneft v UkraineEWHC3740(Ch):failure of disclosure may then be a factor to establish justifiable doubts as to the arbitrator’s impartiality.
 S.37 Malaysian Arbitration Act 2005 (MAA 2005): award may be set aside […] if - (i) a party […] was under any incapacity
 S.14 MAA 2005
 Halliburton v ChubbUKSC48: the ‘real possibility of apparent bias’ by Lord Hodge
 S.15(1) MAA 2005
 S.14(1) and (2) MAA 2005
 Reported in PAM annual report 2020/2021, p.40: 13 nos. as per Dec 2020
DYA+C is set up by Ar. DAVID YEK TAK WAI to undertake resolution of commercial disputes through ARBITRATION and ADJUDICATION, specializing in CONSTRUCTION PAYMENT DISPUTES.
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