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CIArb AWARD DRAFTING GUIDELINES

1/17/2019

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Introduction

  1. This Guideline sets out the current best practice in international commercial arbitration for drafting arbitral awards. It is divided into three parts dealing with (1) arbitral awards in general, (2) awards of interest,1 and (3) awards of costs.2
  2. Part I of this Guideline provides guidance on:
    1. how to draft and communicate arbitral awards (Article 1);
    2. the titles that are most commonly used (Article 2);
    3. the conduct of deliberations (Article 3); iv. the form and content of awards (Article 4); and
    4. issues arising after a final award has been communicated (Article 5). 

Preamble

  1. Parties resort to arbitration to obtain a final and binding resolution of their dispute. It is the arbitrators’ role to resolve the dispute by deciding all of the disputed issues and recording their decision in a document, called an arbitral award. Arbitral awards should be prepared with the greatest care to ensure they conform with the terms of the arbitration agreement, including any arbitration rules and the law of the place of arbitration (lex arbitri), and are enforceable under the New York Convention.3 Any failure to comply with the agreed process and the requirements as to form and content may lead to challenges and create difficulties with enforcement. 
  2. Arbitrators have a wide discretion to resolve the disputes in arbitration by issuing different types of awards. Consequently, most national laws and arbitration rules do not define the various types of awards that are available but, when they do, they have taken an inconsistent approach to the labelling of awards. Even though the title of the award does not determine its legal effect, choosing the wrong title may lead to misunderstandings. Accordingly, arbitrators should be careful to use the appropriate title in order to avoid being prematurely and unintentionally deprived of power.
  3. This Guideline addresses the issues that arbitrators need to consider when drafting awards with the aim of minimising any difficulties in their recognition and/or enforcement. 

​​Article 1 — General principles

​Arbitrators should make it clear that a decision is an award by including the word ‘Award’ in the title, if it is indeed intended to be an award. 

Paragraph 1 Arbitrators’ decisions 

In the course of an arbitration arbitrators normally issue various decisions. Decisions relating to the organisation and general conduct of the arbitral proceedings which are purely procedural and/or administrative in nature should be made in the form of procedural orders or directions.4  Such decisions should be clearly distinguished from arbitral awards, which are intended to include a determination on the merits or affect the parties’ substantive rights and which can generally be enforced under the New York Convention (see Article 2 below).  

​Arbitrators should structure an award in a logical sequence and express their decision in a clear, concise and unambiguous manner. 

Paragraph 2 Structural requirements 

  1. Arbitrators should keep in mind at all times that awards are first and foremost written for the parties. The clearer an award is, the more likely it is to be accepted by the parties and the less likely it is to be challenged. For these purposes, awards should be in a format and layout which aids the communication of the arbitrators’ decision and invites reading. They may be written as a flowing narrative dealing with the evidence as it arises naturally in the sequence of things or, where there are many different issues, on an issue-by-issue basis, dealing with the evidence and argument applicable to each issue separately. 
  2. Arbitrators should consider using short sentences. As soon as a sentence ceases to have a clear and logical link to the preceding sentence, arbitrators should write a new paragraph. Arbitrators should use numbered paragraphs. The award should also include informative headings and sub-headings. A table of contents is especially helpful in lengthy awards. To the extent possible, awards should avoid using technical or legalistic expressions and should be written in plain and simple language which sets out the decision in a coherent and unambiguous manner.
  3. When drafting an award arbitrators should also consider the wider audience who may read and are invited to take actions in relation to the award, including judges exercising a supportive or supervisory role and/ or third parties (such as insurers) whose interests may be affected by it. An award should contain sufficient information to enable its audience to understand the issues and/or its meaning without the need to make further enquiry into the matter. They should not give rise to any questions as to their interpretation and they should not need clarifications.5 Arbitrators should not attach extensive documents to the award and/or refer to documents attached to the award. If it is necessary to refer to key documents it is good practice to quote the relevant passage(s)/part(s) in full. However, sometimes, arbitrators may attach certain documents to the award, such as the terms of reference,  provisional orders and/or earlier awards when required under the relevant rules and/or lex arbitri6 or for ease of reference. 

​Arbitrators should endeavour to make an award that is valid and enforceable. 

Paragraph 3 Making a valid and enforceable award
​
  1. Awards are of no value if they are invalid and of limited value if they are not enforceable internationally. To be valid, an arbitral award needs to conform with the arbitration agreement, including any arbitration rules and the lex arbitri. To be enforceable internationally an award should also comply with the requirements of the New York Convention. If one of the parties makes it clear that it may intend to enforce the award in another jurisdiction, the arbitrators may consider it appropriate to take account of any procedural requirements of the law of that jurisdiction to the extent that they are made aware of these. Additionally, arbitrators may consider it appropriate to consider the law of the place where the debtor resides and/or has assets, and/or any other place(s) of likely enforcement, if known and, if so, to seek assistance from the party expecting to enforce as to any particular requirements in such places.
  2. Arbitrators are not expected to consider the laws of every possible country where enforcement may be sought by the parties, it suffices to seek to minimise the risk that their award is set aside and/or refused recognition and/or enforcement under the New York Convention. 

​Arbitrators should make their award in a timely and efficient manner. 

Paragraph 4 Time limits for making awards 

  1. Many national laws and arbitration rules do not specify any time limits within which the arbitrators must make their final award, leaving the matter to the arbitrators’ discretion. However, some expressly include provisions regarding time limits to expedite the arbitral proceedings and avoid delays in concluding the final award.8 Parties to the arbitration agreement may also prescribe a time limit, albeit this is less common. 
  2. If any time limits for issuing a final award are specified in the arbitration agreement, including any applicable rules and/or the lex arbitri, arbitrators should manage the whole of the arbitration with this in mind. If they are unable to comply, they should apply for or order an extension following any mechanism set out in the applicable rules and/or the lex arbitri. If there is no specified mechanism for granting an extension of time limit, arbitrators should address the matter as early as possible and ask the parties to grant them the power to extend it. Alternatively, arbitrators may invite one or more of the parties to approach the national courts at the place of arbitration to extend it, or apply themselves, if the lex arbitri so permits.
  3. In the absence of any specified time limit arbitrators should determine the appropriate time frame for making an award after taking into account the particular circumstances of the case, bearing in mind that good practice is to conduct the arbitral proceedings without delay and make awards in a timely manner. Additionally, arbitrators should, at the end of a hearing, inform the parties of the time frame within which they expect to make their award.
  4. The rules of some arbitral institutions administering arbitrations provide that they must review all awards in draft before they are communicated to the parties and/or their representatives. In those situations arbitrators must take the delay this may cause into consideration. If an award is not made and communicated within the time specified, it may be set aside on the grounds that it was not made in accordance with the procedure agreed by the parties.

​Once arbitrators have made their award, they should communicate it to the parties and to any arbitral institution administering the arbitration following the method provided for in the arbitration agreement, including any arbitration rules and/or the lex arbitri.  ​

Paragraph 5 Communication of an award
​
  1. The communication of the award is generally governed by the arbitration agreement, including any arbitration rules and/or the lex arbitri. Some arbitration rules may require the arbitrators to send the award to the arbitral institution administering the arbitration for it to communicate the award to the parties. In the absence of any agreement and/or specific provisions, it is for the arbitrators to determine the mode by which they will communicate the award to the parties. 
  2. In any case, arbitrators should make sure that the award is communicated to all parties and/or the arbitral institution at the same time and by the same means. Arbitrators should not withhold an award pending the payment of their fees, unless the arbitration agreement, including any arbitration rules and/or the lex arbitri, provide that they may do so.
 
Methods of communication
The traditional method is to send physical originals of the signed award by courier to the parties and/or their representatives and any arbitral institution administering the arbitration. The advantage of this method is it makes it easier to prove service through the delivery acknowledgment which may be produced in evidence in setting aside and/or enforcement proceedings. Most arbitration rules require service of a physical original of awards. Even where electronic communication is permitted to ensure simultaneous receipt, hard copy originals should still be sent to the parties and/or their representatives by courier.12

​Article 2 — Titles for arbitral awards 

The most common titles given to awards made by arbitrators are: 

Commentary on Article 2 
  1. Arbitrators have a wide discretion as to the different types of awards that they may make. However, they should always check the arbitration agreement, including any arbitration rules and/or the lex arbitri, which may impose limitations on their discretionary powers and/or require decisions to be made in a particular form. It is also good practice for arbitrators to consult the parties as to whether they would like the decision to be made in a particular form.  
  2. Great care must be taken when choosing the title for an award, particularly the titles ‘interim’ and ‘partial’. This is because there is no universally accepted definition for these titles of awards. Some jurisdictions distinguish between these titles in the following way: an interim award is considered to be an award made at an interim stage of the proceedings which does not finally dispose of a particular issue and is subject to later revision;13 a partial award is considered to be an award that finally determines some, but not all, of the issues in dispute and the issues determined are not subject to later revision.
  3. In other jurisdictions both ‘interim’ and ‘partial’ awards are considered to be final as to the issues they deal with and incapable of later revision. In these jurisdictions decisions that are capable of later revision are sometimes described as provisional orders rather than awards. An added complication is that in some jurisdictions awards that are intended to be capable of later revision are described as ‘provisional awards’.
  4. A further complication is that to be enforceable under the New York Convention, a decision must be an ‘award’ and not an order. To assist parties enforce provisional orders, such as security for costs, a practice has arisen of describing these as ‘interim awards’.
  5. In light of the above, arbitrators should be careful when deciding what title to give to an award because it can have different meanings in different jurisdictions. They should consider whether the relevant rules and the applicable lex arbitri contain definitions or specific provisions as to the labelling of arbitral awards. 
  6. One way to avoid complications is to make it clear in the title of the award whether it is intended to be ‘provisional’ such as, for example, ‘Interim Award on Provisional Measures’. Additionally, the text of the award should spell out whether it is a ‘provisional’ or a ‘final’ determination of the issues. If it is intended to be ‘provisional’ determination, it is helpful for arbitrators to expressly reserve their right to reconsider the issue at a later stage. Conversely, if it is intended to be ‘final’, it may be helpful, subject to the applicable rules, lex arbitri and/ or the law of the place of enforcement, if known, for arbitrators to state that it is not capable of later revision.

​interim awards;  

i) Provisional decisions
Examples of provisional decisions include decisions to preserve a factual or legal situation necessary to secure the claim which is the subject of the arbitration.16 These types of decisions are interim or provisional in the sense that they are made pending the final determination of the issues in the arbitration. These may be variously described as provisional orders, interim provisional awards or interim awards. However, the title is not determinative and that is why it is helpful to describe the nature of the award in the text.

​partial awards; 

ii) Partial awards
Partial awards are most frequently used to record the determination of specific issues where the dispute is complex and can be divided into different stages, each concluded with a separate partial award. For example, if the arbitrators bifurcate the liability and quantum issues, they may make a partial award on liability and another partial award on quantum. If there are several awards, arbitrators should consider numbering their awards consecutively to avoid any confusion. These awards are sometimes called ‘partial final’ awards to aid understanding of the fact that it is both ‘partial’ (ie it does not dispose of all issues in dispute) and ‘final’ in respect of the issues it does decide in the sense that the decision cannot be changed.

​final awards; 

iii) Final awards
  1. An award should be described as a ‘Final Award’ when it is intended to bring the arbitration to an end by deciding and disposing of all or the outstanding issues in dispute between the parties. A final award may be the first award dealing with all of the disputed issues or the last in a series of awards which deal with different issues sequentially. If a final award is the last one in a series of awards, arbitrators should summarise any decisions made in earlier awards, so that enables all of the arbitrators’ decisions are consolidated into one stand-alone document. 
  2. A final award should also deal with the costs of the arbitration and their allocation as well as interest, if applicable.17 If arbitrators decide to deal with the merits before dealing with the costs they should make a partial award containing their decision on the merits and expressly state that they are going to deal with costs in a separate award.18 Alternatively, they should make a final award save as to costs and deal with the costs in a later award.
  3. A critically important consequence of issuing the final award is that from then on the arbitrators have no jurisdiction to decide issues between the parties19 except that they may have a very specific and narrow jurisdiction to correct, interpret, supplement and/or reconsider the award in limited circumstances pursuant to the applicable law and/or arbitration rules (see Article 5 below).
Termination of proceedings without a ruling on the merits
d) In certain situations, a final award can put an end to the proceedings without a ruling on the merits. For example, in cases where the arbitrators conclude that they do not have jurisdiction20 or where the subject matter of the proceedings has ceased to exist or where the proceedings have been terminated because the parties have failed to provide security for costs.21

​consent or agreed awards; and

iv) Consent or agreed awards
  1. If the parties to a dispute settle their differences during the arbitration proceedings, they may ask the arbitrators to make a consent award or an award on agreed terms. When dealing with such requests, arbitrators should be satisfied that a settlement agreement has in fact been reached by the parties and both parties consented to it. 
  2. In addition, arbitrators should be satisfied that the matters which are dealt with in the settlement agreement were within the scope of the arbitration agreement pursuant to which they have jurisdiction. If the settlement agreement extends to matters beyond the ambit of the arbitration agreement, arbitrators should ask the parties to agree to broaden their jurisdiction to encompass these new matters before issuing a consent award.
  3. Arbitrators should be satisfied that the agreement between the parties is not illegal or otherwise contrary to public policy. If the arbitrators have unresolved concerns, they may decline to record the settlement as an award without giving reasons. Arbitrators should be particularly wary of requests for consent awards in respect of disputes involving large monetary claims which settle very quickly after the commencement of the arbitration as they may be used as a money laundering device.
  4. If the arbitrators are satisfied that they should make a consent award, they do not need to include any reasons for the award except to record that the award reflects the parties’ agreement on different issues including, if appropriate, what has been agreed in respect of all of the costs of the arbitration and, more specifically, who is to pay the arbitrators’ fees and expenses and when.  

​default awards. ​

v) Default awards
  1. Before issuing an award in proceedings where a party fails to appear or otherwise fails to take part in the proceedings, arbitrators should make sure that the dispute is within the scope of the arbitration agreement and they have jurisdiction.23 For further guidance on proceedings where one or more parties do not appear or cooperate, please refer to the Guideline on Party Non-Participation.24
  2. Even where there is no formal obligation on arbitrators to warn a nonparticipating party of their intention to consider issuing a default award, it is a sensible precaution against potential challenges to give a nonparticipating party reasonable notice that arbitrators may be making a default award in their absence unless they participate within the period specified.  
  3. A default award does not differ from an award made by the arbitrators except that it should include a detailed description of the efforts which have been made to give the non-participating party a fair opportunity to present its case. This is necessary in order to show that the requirements of due process and equal treatment of the parties have been satisfied in order to reduce the risk of later successful challenges to the validity of the award by the non-participating party.   

​Article 3 — Deliberations and voting

Conduct of the deliberations 

  1. Arbitrators should agree on a process for deliberations and decide whether to deliberate in person, by video conference, by teleconference, or in writing. Deliberations can take place at any location the arbitrators consider appropriate. It is good practice to deliberately set aside time, immediately after the close of proceedings, for at least initial deliberations.
  2. The extent of the deliberations necessarily varies depending on the nature of the dispute, the number of claims, the issues to be decided, the type of decisions required and the preferences of the individual arbitrators. In any case, arbitrators should deliberate in a collegiate manner. Each arbitrator should be given an opportunity to express their non-biased and independent view and all of the arbitrators should engage in a constructive dialogue with the aim of reaching a well reasoned and thorough decision. Arbitrators cannot delegate their responsibility to participate in the deliberations or the decision-making process.  

​At the end of a hearing or if there is one followed by written submissions, after submission of the last written statement, arbitrators should declare the proceedings closed. It is good practice to notify the parties at the same time when the arbitrators will be deliberating and when the parties should expect their award.

Obstructionist arbitrator(s)
c) If one arbitrator refuses to participate in the deliberations without good reason, the other arbitrators may proceed in the arbitrator’s absence after giving appropriate notice of the meeting and offering an opportunity to submit comments on the issues to be decided. In the case where the remaining arbitrators proceed with the deliberations, they should draft the award and ask the arbitrator who refuses to participate to review it, giving that arbitrator another opportunity to submit comments. All these steps should be recorded in any award. If the two co-arbitrators refuse to participate, the presiding arbitrator can proceed by rendering the award alone, if the applicable arbitration rules and/or lex arbitri so permit.

​Arbitrators should always deliberate before making any decision.  Deliberations should be confidential and should not be disclosed to the parties except for the decision itself and the reasoning as reflected in the award. 

Privacy and confidentiality of deliberations
d) Deliberations should take place in private with only the arbitrators present but others, such as a tribunal secretary appointed to assist the arbitrators, may attend if all of the arbitrators agree and after informing the parties. Arbitrators, and others present, should keep all aspects of the deliberations confidential. Clearly, a party-appointed arbitrator should not communicate any aspect of the deliberations to the party who appointed them. A breach of the duty to keep the deliberations confidential may result in a claim for damages for breach of confidentiality against the arbitrator responsible.

​Arbitrators should attempt to make a decision unanimously. If they cannot reach a decision unanimously, the decision may be rendered by the majority, pursuant to any applicable arbitration rules and/or the lex arbitri. 

Paragraph 2 Voting
If at the end of the deliberations, the arbitrators are not in agreement and are therefore unable to reach a unanimous decision, then the presiding arbitrator should summarise the opposing opinions and ask the other arbitrators to vote. If there is a majority, this should be reflected in the award without the need for a dissenting opinion. If there is no majority, under some arbitration rules the presiding arbitrator may reach a decision alone.25 If, however, the presiding arbitrator is not empowered to do so, the presiding arbitrator should engage in further discussions and try to reach a majority.  If no majority is reached, there is a risk that there may be no award at all. ​

​An arbitrator may issue a dissenting or separate opinion to explain a disagreement with the outcome and/or the reasoning of the majority, as long as it is not prohibited under the arbitration agreement, including any arbitration rules and/or the lex arbitri.  Dissenting or separate opinions should be carefully drafted to avoid any appearance of bias.  

Paragraph 3 Dissenting and concurrent opinions
  1. An arbitrator may wish to make an individual separate opinion expressing disagreement with the reasoning and/or the conclusions of the majority. There is no required form in which dissenting or concurring opinions should be made. They may be annexed to the final award or included in the award itself; however, they do not have any legal effect and they do not form part of an award.26
  2. It is good practice for an arbitrator to issue a written draft of any separate opinion for consideration by the other arbitrators before any award is made. The separate opinion should not disclose any details of the deliberations. It should be clearly identified as the personal opinion of its author; it should be limited to explaining the basis of the opinion; and it should not raise any new arguments that the arbitrator failed to raise at the deliberations. 

​Article 4 — Form and content of awards

Arbitrators should comply with any requirements as to form and content set out in the arbitration agreement, including any arbitration rules and/or the lex arbitri. In any event, an award should: ​

Requirements as to form and content vary according to the arbitration agreement, including any arbitration rules and/or the applicable lex arbitri. Therefore, arbitrators should check the relevant law(s) and rules before making an award. Generally speaking, there are certain minimum requirements which are almost universally recognised. ​

​be in writing; 

Arbitrators should make an award in writing in order to record their decision. It is an obvious and practical requirement which will avoid dispute as to what actually has been decided. The New York Convention implicitly refers to the written form of an arbitral award pursuant to Article IV(1)(a) requiring ‘the duly authenticated original award or a duly certified copy thereof’ to obtain enforcement.

​contain reasons for the decision, unless the parties have agreed otherwise or if it is a consent award; 

  1. All arbitral awards should contain reasons, unless otherwise agreed by the parties or where the award records the parties’ settlement. The inclusion of reasons is necessary to demonstrate that arbitrators have given full consideration to the parties’ respective submissions and to explain to the parties why they have won or lost. Most national laws and arbitration rules expressly require arbitrators to include reasons in their awards. Even where they are silent on the matter, it is good practice to provide reasons, unless the parties agree otherwise or where the award records the parties’ settlement (see Article 2(iv) above).
  2. Arbitrators have a wide discretion to decide on the length and the level of detail of the reasons but it is good practice to keep the reasons concise and limited to what is necessary, according to the particular circumstances of the dispute. In any event, arbitrators need to set out their findings, based on the evidence and arguments presented, as to what did or did not happen. They should explain why, in the light of what they find happened, they have reached their decision and what their decision is.
  3. Arbitrators should also consider whether it is appropriate to include a statement that the parties have had a fair and equal opportunity to present their respective cases and deal with that of their counterparty.

​state the date and the place of arbitration; and 

  1. An award should include the date on which it is made. The date indicated has important consequences for the commencement of any time limits with which applications for a correction or annulment must be made.27 The date of the award may be the date on which the award is finally approved, the date on which it is signed by all the arbitrators (if it is signed by way of circulation, the date of the last signature), or the date on which it is sent to the parties depending on the relevant rules and/or lex arbitri. If the arbitration rules require that an arbitral institution administering the arbitration scrutinises an award before it is communicated to the parties, the award should only be dated after the institution has reviewed the award.28
  2. The award should also state the place of arbitration. In international arbitration awards are deemed to be made at the place of arbitration and not where they are actually signed,29 unless the parties have agreed otherwise, or if the applicable arbitration rules provide that awards are made in a specific place.

​be signed by all of the arbitrators or contain an explanation for any missing signature(s). 

  1. The act of signing an award expresses endorsement of its content. The general principle is that all arbitrators should sign the award regardless of whether or not it was rendered unanimously. Arbitrators do not need to sign the award at the same place or at the same time, unless otherwise required by the applicable rules and/or the lex arbitri. In addition, arbitrators should always check for any specific requirements related to signing, including if there is a requirement for their signatures to be witnessed by one or more people, or that arbitrators sign every page of the award.30
  2. Sometimes, however, arbitrators may be unable to sign an award, or may refuse to do so, to express their disagreement with the decision. In these cases, it is sufficient that the remaining arbitrators or the presiding arbitrator sign the award. If the presiding arbitrator refuses to sign the award, the majority will suffice. It is often a requirement of national laws and/or the arbitration rules, and it is good practice, for an award to include an explanation as to why any of the arbitrators have not signed the award.  

Awards should also contain the following essential elements:

​the names and addresses of the arbitrators, the parties and their legal representatives; 

  1. It is good practice to start preparing and regularly update as the arbitration develops the narrative paragraphs of an award at an early stage so as to set out the basic information including the names and addresses of the arbitrators, the parties and their representatives, the chronology of the facts, the respective positions of the parties and any agreed matters. The award should describe the process by which the arbitrators have been appointed and basis for their jurisdiction to resolve the dispute.31 It should also contain a brief procedural history of the main stages in the arbitration, referring to preliminary conferences, exchanges of documents, hearing and post-hearing exchanges. The purpose of this is to enable the reader, such as a judge called upon to enforce the award, to see how the arbitrators came to have the authority to issue an award and understand whether the procedure followed was in accordance with the agreement of the parties, including any arbitration rules and/or the lex arbitri.32

​the terms of the arbitration agreement between the parties;  

  1. The award should also clearly identify and present in a logical order the issues which need to be decided. They are often phrased as questions. The issues can be found in the parties’ submissions or the arbitrators themselves can draft a list based on the parties’ submissions.33 It is good practice to request the parties to provide a list, preferably agreed between them, and/or ask them to comment on the list prepared by the arbitrators in order to make sure that all of the disputed issues have been included and that all matters fall within the arbitrators’ jurisdiction. In any case, the list of issues should be presented in a logical sequence and in the order in which they will be discussed. 

​a summary of the facts and procedure including how the dispute arose; 

  1. In addition, arbitrators should include a description of all claims and counterclaims, if any. This can be done by way of paraphrasing the relevant sections from the request for arbitration or the submissions made by the parties. Arbitrators should be careful to avoid considering matters that were not raised by the parties and/or leaving out matters which were raised by the parties.  

​a summary of the issues and the respective positions of the parties; 

​an analysis of the arbitrators’ findings as to the facts and application of the law to these facts; and 

operative part containing the decision(s). ​

  1. The award should conclude with a section, known as the operative or dispositive part, setting out the arbitrators’ decision and orders issue by issue. This section should be short and clearly separated from the rest of the award. It should be consistent with the conclusions on the issues expressed earlier in the award. 
  2. The operative part of an award should be drafted using mandatory language that requires compliance from the parties, such as ‘we award’, ‘we direct’, ‘we order’ or the equivalent.34 In cases of non-monetary awards, where arbitrators have been asked to determine certain factual or legal situation(s), they may use the wording ‘we declare’. 

​Article 5 —​ Effect of a final award 

​The arbitrators’ mandate is terminated when the final award has been rendered subject to power:

to correct, interpret and/or supplement the award; and/or

Correction
  1. Virtually all arbitration rules and national laws allow corrections of awards.35 This is necessary to correct unintended consequences of, for example, errors in computation or denomination, and clerical, typographical or similar errors. When correcting an error arbitrators should be very careful not to alter the content of the award beyond correcting that error.
  2. To avoid the need for corrections, it is good practice for arbitrators to check that any calculations are correct and the currency is correctly denominated. They should also make sure that the names of the parties are accurate. 

to resume the arbitral proceedings after a remission order by a court during challenge proceedings in order to eliminate a ground for setting aside or invalidating an award.  

Interpretation

Arbitrators may be requested to clarify their decision or remove ambiguities in the award in limited circumstances. Their powers are usually limited by the applicable lex arbitri and/or the arbitration rules to interpreting specific parts of the operative part of the award or where it is unclear how the award should be executed.36 Therefore, arbitrators may be able to reject any request for interpretation which goes beyond that. 
 
Additional award

Arbitrators may be requested to make an additional award where they have failed to decide one of the issues raised by the parties. The purpose of an additional award is to prevent an award from being set aside because of that failure. Before making an additional award, arbitrators should always check the arbitration agreement, including any arbitration rules and/or the lex arbitri, in order to make sure that they have the power to do so.  
 
Remission of an award

When a party has applied to a local court to set aside an award, the court may remit an issue or issues back to the arbitrators with a direction that they take appropriate steps to rectify a defect in the award.37 In such cases, arbitrators need to make a fresh award in respect of the matters remitted to them within the specified time under the applicable rules and/or lex arbitri or within a time indicated by the court. When doing so, arbitrators need to be very careful not to change the content of the award beyond the scope of the remitted matters.38  

Conclusion

Arbitral awards are of great practical importance because they have a direct legal effect on the parties to the dispute and may be enforced under the New York Convention. While there is no prescribed style and form that arbitrators should follow when drafting awards, they should ensure that their award complies with the minimum requirements as to the form and substance laid down in the arbitration agreement, including any arbitration rules and/or the lex arbitri, and the New York Convention. To disregard them could create difficulties in enforcing the award or invalidate it.  
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AWARD WRITING CHECKLIST

1/17/2019

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Picture

AWARD WRITING ​

has always been the final limb to any arbitration course that drilled upon the arbitrator the ability to produce an award that is FBE: 
​
  1. Final as to be Executable.
  2. Binding as not to be contested by both parties. Follow the GOLDEN RULE  of LAW
  3. Enforceable as to deal with all the issues brought up by the parties.

THE GOLDEN RULE OF LAW​ JPN

which stands for:
​
  1. JURISDICTION, - The Arbitrator's power is governed by the Arbitration Agreement that is binding to both parties as well as the provision by the Arbitration Act and the Arbitration Rule.
  2. PLEADING & - The Arbitrator can only decide based on the evident given and deliberate what has been pleaded.
  3. NATURAL JUSTICE - Fair opportunity for the parties to present their cases. These is governed by the followings: -
    1. BURDEN OF PROOF VESTED UPON THE CLAIMANT
    2. BALANCE OF PROBABILITY
      1. Tilt towards the 51% of the evident favor whom.
      2. If 50-50%, rely upon the GOOD FAITH in determining the 1%.

RECOMMENDATION FROM CIArb

  1. This Guideline sets out the current best practice in international commercial arbitration for drafting arbitral awards. It is divided into three parts dealing with (1) arbitral awards in general, (2) awards of interest,1 and (3) awards of costs.2
  2. Part I of this Guideline provides guidance on:
    1. how to draft and communicate arbitral awards (Article 1);
    2. the titles that are most commonly used (Article 2);
    3. the conduct of deliberations (Article 3); iv. the form and content of awards (Article 4); and
    4. issues arising after a final award has been communicated (Article 5).

PORTION OF AN AWARD

An AWARD is fundamentally comprise of 2 parts:

  1. The OVERVIEW, comprises of the followings
    1. ​The FORMALITIES
    2. The INTRODUCTION
  2. The BODY, comprises of the followings
    1. ​The FINDINGS & REASONS
    2. The AWARD​

1.0 FORMALITIES

1.1 TITLE:

  1. IN THE MATTER OF THE ARBITRATION ACT 2005 AND
  2. IN THE MATTER OF AN ARBITRATION UNDER THE PAM ARBITRATION RULE 2015

1.2 BETWEEN:

  1. [ABC…] … CLAIMANT &
  2. [XYZ…] … RESPONDENT

1.3 ​AWARD TYPE:

  1. FINAL AWARD OR
  2. CONSENT AWARD OR
  3. DEFAULT AWARD OR
  4. DRAFT AWARD OR
  5. INTERIM AWARD OR
  6. PARTIAL AWARD OR
  7. OTHERS…

1.4 TRIBUNAL:

  1. Mr. ARBITRATOR (SOLE ARBITRATOR)
  2. SEAT OF ARBITRATION: KUALA LUMPUR
  3. DATE OF AWARD: XX/XX/XX

2.0 INTRODUCTION

2.1 THE PARTIES

1. Define who the parties were:
  1. The Claimant: Name, Address and Contact
  2. The Respondent: Name, Address and Contact
  3. The Representative (Legal Counsel) for the Claimant: Name, Address and Contact
  4. The Representative (Legal Counsel) for the Respondent: Name, Address and Contact
  5. The Claimant and Respondent are collectively called 'the parties'.

2.2 THE BACKGROUND

1. State the DISPUTE arises out of a contract named:
PROPOSED DEVELOPMENT ... ON LOT ... MUKIM ... FOR MSSR...

2. State SUMMARY of the CONTRACT:
  1. CONTRACT DATE: xx/xx/xx
  2. CONTRACT SUM: RM 000,000,000.00

3. Describe the SCOPE of WORK of the Claimant and the Respondent in relation to the Contract:

1. THE CLAIMANT IS A BUILDING CONTRACTOR REG WITH CIDB CLASS - A, TO CONSTRUCT ... FOR THE RESPONDENT, A DEVELOPER ... THE CLAIMANT SEEK ARBITRATION FOR THE DISPUTE OF ... 

2. THE RESPONDENT RESPONDED THAT... AND COUNTERCLAIMED THAT...

2.3 THE ARBITRATION AGREEMENT

1. QUOTE  in FULL the Clause that contained the ARBITRATION AGREEMENT
1. The Contract provide the following clause on 'Arbitration Agreement':

2. PAM FORM 2006, CL 34.5 DISPUTES REFERRED TO ARBITRATION. "In the event that any dispute or difference arises between the Employer and the Contractor, either during the progress or the completion or abandonment of the Works regarding: 
34.5(a) - (e) ...
then such disputes or differences shall be referred to arbitration​.

2.4 INITIATION OF THE ARBITRATION

  1. Describe who initiated the ARBITRATION, ie. through an Arbitration Regime liked PAM...
  2. Describe how the Arb Regime requested for an appointment of the Arbitrator.
  3. Describe how the arbitrator communicated with the parties to confirm his appointment.
  4. Describe the confirmation of the appointment.
  5. On this date ,<DATE> the claimant has written to the President of PAM, requesting for the appointment of an Arbitrator to be appointed to resolve their dispute.
  6. On this date, <DATE> the PAM  President has written to me, letter  <REF NO> regarding the parties' dispute and their intention for an appointment of an Arbitrator.
  7. On this date, <DATE>, I had written to the parties, letter <REF NO> regarding my term of appointment, including my Fees and a copy of the PAM Arbitration Rule 2015 and the Letter of notification from the PAM President were attached for their acceptance.
  8. A preliminary meeting was held on <DATE>, <TIME>, <VENUE> to confirm my appointment and to set the agenda of arbitration. These were duly recorded in the minute - PROCEDURAL ORDER No 01.
  9. On this date, <DATE>, the parties had accepted my appointment via a letter <REF NO>, as a sole arbitrator.
  10. On this date, <DATE>, I had responded to the PAM President of my appointment and my acceptance as a sole arbitrator. I had duly made a declaration of impartiality  to the PAM President of my appointment and my acceptance as a sole arbitrator.

2.5 THE SEAT OF ARBITRATION

DESCRIBE that the parties agreed the SEAT to be in...
  1. The Arbitration Act 2005 and the PAM Arbitration Rule 2015 provide that the SEAT of ARBITRATION to be KUALA LUMPUR. 
  2. At the PRELIMINARY MEETING, I had DIRECTED and the parties AGREED that the SEAT of ARBITRATION to be KUALA LUMPUR. 

2.6 APPLICABLE RULES AND LAW

  1. State the Arb Act and Rules to be APPLIED.
  2. State that the parties agreed that the Malaysian Law shall take precedent.
  1. PURSUANT to the ARBITRATION AGREEMENT, the arbitration is to be conducted in accordance to the Arbitration Act 2005 and the PAM Arbitration Rule 2015.
  2. At the PRELIMINARY MEETING, I had DIRECTED and the parties AGREED that the PAM FORM 2006 and the law of Contract is the Law of Malaysia to be applied.

2.7 PROCEDURAL HISTORY

  1. ​Repeat the initiation of the Arbitration
  2. Describe what transpire in the Preliminary Hearing and the issuance of Procedural Order No 01, such as Point of Claim, Defense and Counterclaim, Defense of Counterclaim.
  3. Describe Procedural Order No 02 for disclosure of additional documents. 
  4. Describe Procedural Order No 03 for Oral Evidential Hearing.
  5. ​Describe the proceeding of the said hearing including the witness.
  6. Conclude that, "Having heard from both parties in relation to the evidence, I indicated that the decision and reasons would be set out in the award."​
  1. The Claimant commenced this arbitration by a notice to the PAM President on <DATE>. The Respondent responded  via a notice to the PAM President on <DATE>.
  2. The Arbitration was constituted on <DATE> .
  3. I directed that the parties attend the Preliminary Meeting at <VENUE> on <DATE>. At the said meeting, the Arbitrator issued Procedural Order No 01, among others, constituted Directions of Service of Submissions, for Disclosure, and for the holding of Oral Hearing. 
  4. In accordance with these directions:
    1. Claimant served Point of Claim (POC)
    2. Respondent served Point of Defense and Counterclaim (POD)
    3. Claimant served Defense to Counterclaim (DCC)
  5. Respondent request for an order that the Claimant be directed to disclose additional documents. Having heard from both sides, I issued Procedural Order No 02. directing Claimant to disclose all documents relating to ... including but not limited to...
  6. Claimant made further disclosure according to Procedural Order No 02.
  7. I issued  Procedural Order No 03. directing for an Oral Evidential Hearing to be heard on <DATE> at <VENUE>. Claimant was represented by <PERSON> and Respondent was represented by <PERSON>. 
  8. During the Hearing, Claimant presented the following witness... <PERSONS>. Respondent presented the following witness... <PERSONS>.
  9. After these witnesses had presented their oral evidences and had been duly cross-examined, by the other party, each party, via their counsel, made their respective closing submission.
  10. ​Having heard from both parties in relation to the evidence, I indicated that the decision and reasons would be set out in the award.

2.8 JURISDICTION OF THE TRIBUNAL

  1. Sometimes, the parties may want to limit the jurisdiction of the arbitrator, if none, just a declaration would suffice. 
  1. No issue raised by either party as to the Arbitrator's jurisdiction.  I am satisfied that I have the jurisdiction to determine all the matters submitted to it by the parties. 

2.9 CLAIM, COUNTERCLAIM AND DEFENSES

  1. State the POC by Claimant, item by item complete with its reasons.
  2. State the POD by Respondent, item by item complete with its reasons.
  3. State the Counterclaim by Respondent, item by item complete with its reasons.
  4. State the DCC by Claimant, item by item complete with its reasons.
  1. In the POC, Claimant claims that... [DESCRIBE ALL CLAIMS}
  2. In the POD, Respondent defends that... [DESCRIBE ALL DEFENSES}
  3. Respondent counterclaims for ... [DESCRIBE ALL COUNTERCLAIMS}
  4. In the DCC, Claimant denies Respondent's counterclaims ... [DESCRIBE ALL DEFENSE OF COUNTERCLAIMS}

3.0 FINDINGS AND REASONS

3.1 TERMS OF THE CONTRACT

  1. Identify the relevant contract terms
  1. [either... ] Although a copy of the Contract has NOT been provided to me, there is no dispute as to which of its terms are relevant to the matters I am required to determine nor is there any dispute as to the content of those terms.
  2. [or] as already noted, the Contract was for .... [PROJECT NAME]
  3. The Contract contained the following express term:
  4. The Contract further provided that the Claimant would be responsible for ... in the following terms:
  5. The Contract further provided that the Respondent was entitled to ... in the following terms:

3.2 AGREED FACTS

  1. Identify the agreed facts
  1. A formal list of agreed facts was not prepared, however, the following factual matters have either been expressly agreed by the parties or were, by the end of the oral hearing, common ground between them: -
    1. The Claimant is in the business of ...
    2. The Respondent is in the business of ...
    3. In accordance with the contract terms, claimant ... [suppose to do what] and the respondent ... [suppose to do what] ... 
    4. [note down all the agreed events that had transpired]

​3.3 AGREED ISSUES TO BE RESOLVED

  1. IDENTIFY and FORMULATE the list of ISSUES to be RESOLVED... For each ISSUE:
    • Formulate QUESTION to answer
    • Party positions and submissions on FACTS and LAW
    • Weigh evidence presented - FIND FACTS
    • Determine APPLICABLE Rule/Law
    • Apply Rule to FACTS as found
    • Conclusion as to LIABILITY
    • REMEDY
    • QUANTUM
      • Interest Post/Pre Award
      • Costs VAT/GST, Interest on Costs, date of payment, 
  1. The issues to be resolved in this arbitration are as the follows:
    1. the Claimant's application made ...
    2. is the Claimant entitle to... 
    3. is the Respondent entitle to...
  2. ISSUE 01: ...
  3. The Claimant's case... 
    1. ​In the closing submissions, the Claimant sought to ... The evidence the Claimant rely upon ... 
  4. The Respondent's case...
    1. ​The Respondent argue that ... the witness of fact presented ...
  5. Analysis...
    1. ​The issue as to the Claimant's ... I considered that this issue should be determined by examining the ... contract... 
    2. Clause ... [specify the contract's clause] ... However, I am of the view that ... [state your opinion in relation to the law] ... the fact shows that ... [relate to the fact or evidence] ... In that circumstances I determined that[state your decision]
    3. So far as to the ... I agree/disagree with the Claimant's argument that ... the reasons are... I am of the view that ... [State who is at liability] ... 
    4. [State if the arbitrator require the cause of / the responsibility for the damages to decide the claims] .. 
    5. For the reasons given, I determines that the Claimant/Respondent should have paid the Claimant/Respondent ... [state quantum].
  6. Interest
    1. ​Both parties claimed interest on the sums awarded to them on the basis I deemed appropriate ? 
    2. The contract ... [state clause no...] .. [repeat the clause], allow/disallow ... pre/post award interest to be allowed ... For the reasons given, I allowed/disallowed pre/post award interest on the sum to be awarded under such jurisdiction.
    3. I held that in the paragraph ... above, that the total sum of ...<SUM>  was payable by ... to ... on ....
      1. I decided to exercise the discretion given by the parties and
      2. I am aware of the Court of Appeal's Judgment in Far East Holdings Bhd & Anor v Majlis Ugama Dan Adat Resam Melayu Pahang (2015) 4 MLJ 766 where the Court held that the legislature did not intend to confer power on the Arbitral Tribunal to award pre-interest based on the absence of specific words in the statute, I have adhered to this principle in this award. 
      3. I now examine the issue of post-award interest payable on the awarded sum. Sec 33 of the Arbitration Act 2005 (Amended 2011) governs the granting of interest and provides:​ "(6) Unless otherwise provided in the arbitration agreement, the arbitral tribunal may - (a) award interest in any sum of money ordered to be paid by the award from the date of the award to the date of the realization; and (b) determine the rate of interest."
      4. The practice of the court was to give 5% simple interest per annum based on the Chief Justice of Malaysia Practice Direction No 1 of 2012. I accept that this will be the rate of interest applicable to the award. The sum of <SUM> from the date of this award. 
  7. Costs
    1. ​Both parties parties have made claims for the recoveries of their costs. 
    2. Sec 44(1) of the Arbitration Act 2005 (amended 2011) provides: "Unless otherwise agreed by the parties - (a) the costs and expenses of an arbitration shall be in the discretion of the arbitral tribunal who may - (i) direct to and by whom and in what manner those costs or any part thereof shall be paid; (ii) tax or settle the amount of such costs and expenses ; and (iii) award such costs and expenses to be paid as between solicitor and client".
    3. I have concluded that Claimant/Respondent has succeeded on all of its claims and that Claimant/Respondent  has failed on its claims/defenses. I find that the Claimant/Respondent shall be liable to compensate for the costs of the arbitration, fees and expenses of the arbitration and legal costs ...
    4. ​The costs of the arbitration, fees and expenses of the arbitration amounted to ... <SUM> The VAT shall be ... <SUM>. 
    5. The legal cost amounted to ... <SUM>. The VAT shall be ... <SUM>. 
    6. I further allowed interest on the amounts to be paid in respect of the costs of the arbitration, fees and expenses of the arbitration and legal costs at the rate of 5% simple interest per annum.  ​

4.0 AWARD

4.1 DECLARATION

  1. Formal declaration ... that you had ... hereby make and publish your award ...
Now, I [NAME], having carefully considered all the statements, documents and submissions placed before me, as well as the evidence given at the hearing, do hereby MAKE AND PUBLISH THIS MY <FINAL> AWARD in full and final settlement of all claims in this arbitration.

4.2 DECISION

  1. Dismiss claim of loosing party.
  2. Direct payment of liability including interest
  3. Direct payment of legal costs of the arbitration including interest
  4. Direct payment of fees of the arbitration including interest
  5. Direct payment of interest in respect of any and all the amounts from the date of this award until full and final payment thereof by.
​I HEREBY AWARD AND DIRECT as follows: 
​
  1. Claimant/Respondent's claim/counterclaim is dismissed in its entirety.
  2. Claimant/Respondent shall forthwith pay the Claimant/Respondent the sum of <SUM> together with interest of 5% per annum from the date of payment of those costs until the date of this award.
  3. Claimant/Respondent shall forthwith pay the Claimant/Respondent legal costs of the arbitration of which I had determined in sum of <SUM> together with interest of 5% per annum from the date of payment of those costs until the date of this award.
  4. Claimant/Respondent shall forthwith pay the Claimant/Respondent fees of the arbitration of which I had determined in sum of <SUM> together with interest of 5% per annum from the date of payment of those costs until the date of this award.
  5. Claimant/Respondent shall forthwith pay the Claimant/Respondent interest of 5% per annum in respect of any and all the amounts from the date of this award until full and final payment thereof by...

4.3 SIGNED, DATED & SEAT

  1. State -  
    1. Seat, 
    2. Date, 
    3. Signed & 
    4. Name...
Made and published by me in KUALA LUMPUR, which is the seat of the arbitration, on this [DATE]


[SIGNED]
......................................................
[NAME of the ARBITRATOR]
​
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​PAM - CIArb ROUTE TO ARBITRATOR COURSE - SAMPLE AWARD

1/16/2019

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IN THE MATTER OF THE ARBITRATION ACT 2005 and
in the matter of an arbitration ​

Between​​
​
Hamid Aminuddin and Partners
Claimant

and ​

T. Kassim Interior Designs Limited ​ ​
Respondent 


FINAL AWARD


I.M. ABEL
ARBITRATOR
​
KUALA LUMPUR
​30 DECEMBER 2017


​INTRODUCTION

The Parties

  1. The Claimant is Hamid Aminuddin and Partners,  a firm of quantity surveyors and construction contract advisers, having the address at L 18, Plaza Tun Ismail, Jalan Pokok, Raub, Pahang. The senior partners of which, Mr Hamid Aminuddin, sits regularly as arbitrator. whereas,  Sr.Roslan Fairuz Din is a partner of the Claimant firm and he is standing as the Claimant's witness of fact.
  2. The Respondent is T. Kassim Interior Designs Limited a company specialising in interior design, having the address at 22, Jalan Anggerik Villa , 40450 Shah Alam, Selangor. Whereas, Mr Danny Ghany, is the sales director of the Respondent company and he is standing as the Respondent's witness of fact.
  3. Hereinafter the Claimant and Respondent shall be collectively known as "the parties"and they are represented by their legal counsels.  B.L. Zakaria  of Zakaria & Ong Advocate & Solicitors, Raub, Pahang, acted for the Claimant and Mr. Chan Ping Yau of Yee & Sung Solicitors for the Respondent, Kuala Lumpur, acted for the Respondent.
  4. They suggested that a meeting would incur unnecessary costs and they agreed directions which they asked me to confirm. 
  5. Neither party has requested directions concerning expert witnesses. 

The Backgrounds

  1. The dispute arises from a work, pending a formalization of a contract based on PAM Minor Works Contract,  for the design and execution of interior decorations, together with the provision of furniture, carpets and curtains in a suite at the Claimant’s offices at Plaza Tun Ismail, Jalan Pokok, Raub, Pahang. 
  2. The contract sum was to be RM 30,000.00 + Govt tax; that the works were to be completed by 30 September 2012; and that provision for liquidated damages for non-completion was to be set at RM 2,000.00 per week, although this term has not been expressly agreed upon by the Respondent. 
  3. Notwithstanding that the formal contract document was not signed, there were express terms of the agreement between the parties as specified in the Agreed Facts.   
  4. The Claimant claimed that the Respondent has breach the express terms of the agreement and the consequence of the said breaches of contract the Claimant has suffered loss and expense. The Claimant therefore, claimed Interest pursuant to Section 33(6) of the Arbitration Act 2005, alternatively liquidated damages and Damages. 
  5. The Respondent denied that it is liable to the Claimant for the sums claimed or at all and consequently disputes and differences arose between the parties on the express terms of the agreement between the parties, such as works should be carried out in a good and workmanlike manner, using proper materials and so that on completion the scheme should be fit for the purpose intended. 
  6. As the result, the Respondent counterclaimed for the replacement with interest and cost.

The Arbitration Agreement

  1. In the absent of the formal contract, a letter of offer, BUNDLE R01 dated 28 February 2012 from the Respondent stated, "Any dispute relating to the contract shall, upon the application of either party, be referred to an arbitrator appointed by the President of the National Institute of Interior Designers pursuant to the Arbitration Act 2005. The arbitrator’s decision is to be final and binding on the parties."
  2. In agreement, the letter of acceptance, BUNDLE C02 and  C04 dated 15 March 2012 and 3 April 2012 respectively from the Claimant stated, "We are quite content with the terms set out in your letter dated 28 February." and "I am writing to confirm my telephone call and to let you know that after you left the meeting on Saturday my partners agreed to go ahead with the works described in your quotations and they have therefore instructed me to accept your offer."
  3. Having these evidences presented before me,  I am satisfied that there is a simple written agreement, as to an offer and an acceptance of an offer, to resolve any dispute arises through arbitration.  

Initiation of The Arbitration

  1. On 10 January 2017 , I was appointed by the President of the National Institute of Interior Designers (Pertubuhan Pereka Dalaman  Nasional) (PPDN) to be the arbitrator in this dispute. The PPDM have sent me a copy of the form sent with the application made by the Claimant for the appointment of an arbitrator. The form indicated that the dispute concerns the interior design of a suite of offices and that approximately RM21,500.00 is in issue. The contract terms, including the arbitration clause, is set out in the enclosed bundle of documents.​​

Seat of Arbitration

  1. The Arbitration Act 2005 and the PAM Arbitration Rule 2015 provided that the SEAT of ARBITRATION to be KUALA LUMPUR. and I had DIRECTED via PROCEDURAL ORDER No 01 and the parties AGREED that the SEAT of ARBITRATION to be KUALA LUMPUR,

Applicable Rule and Law

  1. PURSUANT to the ARBITRATION AGREEMENT, the arbitration is to be conducted in accordance to the Arbitration Act 2005 and the PAM Arbitration Rule 2015.
  2. As issued, the PROCEDURAL ORDER No 01, I had DIRECTED and the parties AGREED that the PAM FORM 2006 and the law of Contract is the Law of Malaysia to be applied.

Procedural History

  1. On 10 January 2017 , I was appointed by the President of the National Institute of Interior Designers (Pertubuhan Pereka Dalaman  Nasional) (PPDN) to be the arbitrator in this dispute that concerns the interior design of a suite of offices and that approximately RM21,500.00 is in issue. The contract terms, including the arbitration clause, is set out in the enclosed bundle of documents.​
  2. I have invited the parties to a preliminary meeting but their solicitors suggested that a meeting would incur unnecessary costs and they agreed directions which they asked me to confirm. On this account, I had issued PROCEDURAL ORDER No 01 comprising among others, the agenda of the preliminary meeting to be adhered to. Pleadings and witness statements, enclosed with these papers, were served in accordance with the agreed directions.
  3. In accordance with the parties' agreement I PROCEDURAL ORDER No 02 for discovery and for the service of witness statements. Neither party has requested directions concerning expert witnesses.
  4. ​A hearing has been arranged to be held at Pertubuhan Akitek Malaysia (PAM), 99-L Jalan Tandok, Bukit Bangsar, 59100 Bangsar, Kuala Lumpur on 21 February 2017 with two days reserved. 
  5. The parties have asked that my award should have reasons for my decision. I indicated that the decision and reasons would be set out in the award.

Jurisdiction of the Tribunal

  1. No issue raised by either party as to the Arbitrator's jurisdiction.  I am satisfied that I have the jurisdiction to determine all the matters submitted to it by the parties. 

Claim, Counterclaim and Defences

  1. In the POC, the Claimant claims that 
    1. Notwithstanding that the formal contract document was not signed, there were express terms of the agreement between the parties:
      1. that the completed arbitration suite should be suitable for quasi-legal proceedings and
      2. that the decor should reflect the gravity of the proposed use and Mr Aminuddin's status in his profession, and
      3. that the table In the arbitration room was to be large enough to seat twelve people in comfort with space for files and plans.
      4. Tables in each of the consultation rooms’ were to be large enough to sit six people in comfort. 
    2. Further there were implied terms of the agreement that
      1. the works should be carried out in a good and workmanlike manner, using proper materials and
      2. so that on completion the scheme should be fit for the purpose intended.   
    3. Notwithstanding the purported completion of the works, in breach of the express and/or implied terms aforesaid the design and materials used were defective and/or unfit for their purpose.   
  2. The Respondent has breached the express terms of the agreement between the parties such as:
    1. ​​the wallpaper in the waiting area was wholly unsuitable for the premises; 
    2. the table in the arbitration room would not seat twelve people in comfort; and 
    3. the wallpaper in the arbitration room and in the consultation rooms, a fleur de lys pattern, created visual difficulties and caused headaches and loss of concentration.
  3.  In consequence of the said breaches of contract the Claimant has suffered loss and expense such as:
    1. ​by reason of the inadequate size of the table. and the effects of the wallpaper in the arbitration room, Mr Aminuddin was obliged to adjourn an arbitration for two weeks and thereby lost fees amounting to RM20,000.00; 
    2. the Claimant was unable to use the rooms or any of them until 23 October with consequent loss of revenue of RM1,500.00.
  4. Therefore, the Claimant claimed: -
    1. Damages pursuant to paragraph 9 herein in the sum of RM 21,500.00, 
    2. The remedial work was not complete until 23 October 2012. Alternatively liquidated damages amounting to RM 6,000.00. 
    3. Interest pursuant to Section 33(6) of the Arbitration Act 2005 at such rate and for such period as the Arbitrator shall determine.
  5. In the POD, Respondent defends that: -
    1. ​The Respondent denies that it is liable to the Claimant for the sums claimed or at all. 
    2. The Respondent denies that 
      1. there were express terms of the agreement between the parties in relation to: -
        1. that the completed arbitration suite should be suitable for quasi-legal proceedings. The term ‘quasi-legal proceedings’ was never mentioned by the Claimant or any of its agents. 
        2. that the decor should reflect the gravity of the proposed use and Mr Aminuddin's status in his profession. The Respondent knows nothing of Mr Aminuddin's activities as the Claimant's request was for a design scheme on normal commercial lines. The Respondent further denies that any mention was made of Mr Aminuddin's status.
      2. The table In the arbitration room was to be large enough to seat twelve people in comfort with space for files and plans. As to the table in the arbitration room, the Respondent avers that the table first provided would seat twelve people. In fact the Respondent agreed to replace the table, and did so at no extra charge notwithstanding that the, table was suitable for its purpose as expressed by the Claimant. The Respondents denies that the table in the arbitration room would not seat twelve people in comfort. The respondent reiterated that the table in the arbitration room was capable of seating twelve people. 
      3. Tables in each of the consultation rooms’ were to be large enough to sit six people in comfort.  
      4. The wallpaper in the waiting area was wholly unsuitable for the premises. The wallpaper in the waiting area is one which the Respondent has used elsewhere in commercial premises without previous complaint. It is wholly suitable for the room in which it was hung and had been approved by the Claimant at the meeting on 1 April 2012. 
    3. Furthermore, the Respondent denies that  
      1. by reason of the inadequate size of the table. and the effects of the wallpaper in the arbitration room,
        1. Mr Aminuddin was obliged to adjourn an arbitration for two weeks. It is further denied that the wallpaper had an effect such as to cause the adjournment of an arbitration. Further, if, which is denied, it was necessary to abandon an arbitration in the arbitration room, the said arbitration could have been held elsewhere, 
        2. Adjournment of an arbitration for two weeks resulted in a lost of fees amounting to RM20,000.00. For such claim, the Claimant is put to strict proof of any loss. In any event the damage claimed is too remote.  The respondent was not informed that any particular arbitration was to be held before the said table was replaced. Accordingly the Respondent says that the Claimant has failed to mitigate any loss it may have suffered. 
      2. the Claimant was unable to use the rooms or any of them until 23 October with consequent loss of revenue of RM1,500.00. As to loss of revenue, the Respondent was not informed that the Claimant was intending to charge for the use of the arbitration suite, and accordingly the alleged losses are too remote.
      3. Alternatively liquidated damages amounting to RM 6,000.00. As for the claim for liquidated damages pleaded in the prayer to the Points of Claim, the Respondent avers that the works were completed on time and the Claimant is thus not entitled to such damages. 
  6. Respondent counterclaims for
    1. ​Further the Respondent has replaced wallpaper and the table without charge hitherto. However, in view of this action the Respondent seeks payment therefore in the sum of RM1,800.00 for the new table and RM700.00 for labour and materials in replacing wallpaper. 
  7. The Respondent counterclaimed:
    1. ​RM2,500.00 pursuant to paragraph 17 herein. 
    2.  5% simple interest per annum. 
    3. Costs.
  8. In the Reply to the POD, the Claimant denies that: -
    1. ​At meetings in or about February 2012, Mr Fairuz, a partner in the Claimant firm, advised the Respondent that the completed arbitration suite should
      1. be suitable for quasi-legal proceedings and
      2. that the decor should reflect the gravity of the proposed use and
      3. Mr. Aminuddin's status in his profession.
    2. While it is admitted that samples were shown to a partners' meeting on' April 2012,
      1. the Respondent had promised to show the samples to Mr Fairuz privately before the meeting and
      2. was to allow sufficient time to discuss the Respondent's proposed scheme in detail.
        1. In fact the Respondent, by its Mr Danny Ghani, produced the quotation and samples a mere five minutes before the meeting was to start. 
        2. Accordingly while Mr Aminuddin and Mr Fairuz had reservation about the colours and wallpapers selected by the Respondent, two junior partners of the firm expressed delight in the designs at the meeting.
        3. The quotation was satisfactory in financial terms and accordingly the Claimant approved the proposals and instructed Mr Fairuz to agree terms with the Respondent. 
        4. Although the Respondent may have hung wallpaper similar to that used in the waiting area elsewhere, it is plainly inappropriate to the use of the arbitration suite. The Claimant says that the wallpaper is more suitable for a restaurant or equivalent use. 
        5. The Claimant denies that
          1. Any introduction of plants or pictures would make any difference to the visual effects of the fleur-de-lys pattern of the wallpaper.
          2. It had been proved to affect the concentration of occupants of the room.
          3. As an experienced firm of designers the Respondent knew or ought to have known that the wallpaper would be quite unsuitable for its purpose.
    3. The Respondent was instructed by Mr Fairuz that the table in the arbitration room was to seat twelve people: 
      1. in comfort with space for files and plans.
      2. Equally the table should have space for the arbitrator to sit at the head of the table,
      3. sufficiently remote from other parties to make notes in confidence;
      4. while there should be space for a witness, again remote from other parties.
      5. Mr Ghani was made well aware of the importance of these requirement and made notes on them. 
    4. The Respondent was informed by Mr Fairuz that: 
      1. The purpose of the arbitration suite was for use by Mr Aminuddin in his arbitrations and
      2. It was to be offered for hire to other arbitrators. 
      3. ​At meetings between Mr Fairuz for the Claimant and Mr Ghani for the Respondent the purpose of the rooms in the arbitration suite was made plain.
        1. At all material times the Respondent knew or ought to have known that the rooms
          1. would be used for arbitration whether those conducted by Mr Aminuddin or
          2. by others.
    5. Further, in setting the date for completion at 30 September 2012:
      1. The Respondent was informed that Mr Aminuddin had an arbitration which was due to start on 9 October 2012. In the event the parties, their representatives and witnesses complained of lack of space at the table so that the progress of the arbitration was hindered.
      2. Late on the first day of the hearing the participants complained that the wallpaper created visual difficulties and caused headaches.
      3. Accordingly it was decided to adjourn the hearing until the Respondent could take remedial measures. 
    6. Although the Respondent agreed to replace the table and to re-paper the walls, in the event the remedial work was not complete until 23 October 2012 thus the liquidated damages amounting to RM 6,000.00 was claimed by the Claimant.
    7. In relation to in the event that it was necessary to abandon an arbitration in the arbitration room, the said arbitration could have been held elsewhere, the arbitration which started on 9 October could not be held elsewhere at short notice. 
  9. In the Defence to Counterclaim DCC, the Claimant denies that: - 
    1. ​The Claimant avers that the Respondent is not entitled to the costs of the table and redecoration. The same were incurred only because of the Respondent's breach of contract. 

​FINDINGS AND REASONS

The Terms of the Contract

  1. No copy of the Contract has been provided owing to that fact that the formal contract has yet to be entered upon. There is no dispute as to which of its terms are relevant to the matters I am required to determine nor is there any dispute as to the content of those terms. 
  2. Witness Statement stated that, acceptance of  PAM Minor Works Contract. 
  3. I shall be guided by its terms and conditions contained therein. 
  4. The Contract was for Design and Execution of Interior Decorations, together with the provision of Furniture, Carpets and Curtains at Plaza Tun Ismail, Jalan Pokok, Raub, Pahang. The contract sum was  RM 30,000.00 + Govt tax; works were to be completed by 30 September 2012; and that a provision for liquidated damages LD for non-completion was to be set at RM 2,000.00 per week, this was not agreed upon by the Respondent.​

Agreed Facts

A formal list of agreed facts was not prepared, however, the following factual matters have either been expressly agreed by the parties or were, by the end of the oral hearing, common ground between them.
  1. ​​The Claimant is in the business of quantity surveyors and construction contract advisers,  the senior partners of which, Mr Hamid Aminuddin, sits regularly as arbitrator. The Respondent is in the business of interior design.  
  2. The Claimant engaged the Respondent to Design and Execution of Interior Decorations, together with the provision of Furniture, Carpets and Curtains at Plaza Tun Ismail, Jalan Pokok, Raub, Pahang for a contract sum of RM 30,000.00 + Govt tax, to be completed by 30 September 2012.
  3. ​A formal contract document was not signed. The parties however agreed on the following terms, as indicated in the offer from the Respondent via  BUNDLE R01 duly accepted by the Claimant via BUNDLE C04 : -
    1. ​Period of Valuation 4 weeks.
    2. Payment of amount due less 5% Retention Sum.
    3. Period of 3 months  for Defects Rectification, post completion
    4. Thereafter, release of Retention Sum.
    5. Variations base on Approved Quotation or at  net cost + 20%.
    6. The existing structure and works to be insured by the Claimant.
    7. Rights to determination of contract due to non payment of any interim claim: or due to liquidation or other act of bankruptcy of the Claimant. 
    8. The Arbitration Clause - Any dispute relating to the contract shall, upon the application of either party, be referred to an arbitrator appointed by the President of the National Institute of Interior Designers pursuant to the Arbitration Act 2005. The arbitrator’s decision is to be final and binding on the parties. 
  4. The agreed facts pertaining to timelines are: 
    1. The decorative work including curtains and carpets were completed on 29 September 2012 and
    2. The furniture was delivered on the following day, 30 September 2012.​
    3. The remedial work was completed on 23 October 2012.​

Agreed Issues to be Resolved

​The issues to be resolved in this arbitration are set out as the follows and had been agreed upon by the parties:
  1. ​whether ​that the: -
    1. ​Completed arbitration suite should be suitable for quasi-legal proceedings and that the decor should reflect the gravity of the proposed use and Mr Aminuddin's status in his profession; and
    2. Wallpaper in the arbitration room and in the consultation rooms, a fleur de lys pattern, created visual difficulties and caused headaches and loss of concentration and that the wallpaper in the waiting area was wholly unsuitable for the premises; and
    3. Table In the arbitration room was to be large enough to seat twelve people in comfort with space for files and plans; and
    4. The works should be carried out in a good and workmanlike manner, using proper materials and that the completion of the scheme should be fit for the purpose intended?
  2. In consequence of the said breaches of contract, ​whether the Claimant  suffered loss and expense amounted to  the sum of RM 21,500.00 as damages such as:
    1. ​by reason of the inadequate size of the table. and the effects of the wallpaper in the arbitration room, Mr Aminuddin was obliged to adjourn an arbitration for two weeks and thereby lost fees amounting to RM20,000.00; and 
    2. the Claimant was unable to use the rooms or any of them until 23 October with consequent loss of revenue of RM1,500.00?
  3. whether  there is a breach by the Respondent in:
    1. that the Respondent ought to have completed the work in time thus causing a delay to occur; and
    2. that in the event of a delay, is there an agreed express and/or implied terms that the Respondent is liable to pay for Liquidated Damages; and
    3. whether the Claimant was entitled to claim for Liquidated Damages amounted to RM 6,000.00
  4. whether the Respondent was entitled to counterclaim for the replaced wallpaper and the table in the sum of RM1,800.00 for the new table and RM700.00 for labour and materials in replacing wallpaper. ​

ISSUE 01: LIABILITY

whether ​that the: -​
  1. ​Completed arbitration suite should be suitable for quasi-legal proceedings and that the decor should reflect the gravity of the proposed use and Mr Aminuddin's status in his profession; and
  2. Wallpaper in the arbitration room and in the consultation rooms, a fleur de lys pattern, created visual difficulties and caused headaches and loss of concentration and that the wallpaper in the waiting area was wholly unsuitable for the premises; and
  3. Table In the arbitration room was to be large enough to seat twelve people in comfort with space for files and plans; and
  4. The works should be carried out in a good and workmanlike manner, using proper materials and that the completion of the scheme should be fit for the purpose intended?

 The Claimant's Case

  • The Claimant contends that the Respondent was in breach of the express terms and/or implied terms of the agreement.  
  • In this respect, the Claimant contends that the design and materials used by the Respondent were defective and/or unfit for their purpose in that:- 
    1. Completed arbitration suite was not suitable for quasi-legal proceedings and that the decor did not reflect the gravity of the proposed use and Mr Aminuddin's status in his profession;
    2. Wallpaper in the arbitration room and in the consultation rooms, a fleur de lys pattern, created visual difficulties and caused headaches and loss of concentration and that the wallpaper in the waiting area was wholly unsuitable for the premises;
    3. ​Table In the arbitration room was not large enough to seat twelve people in comfort with space for files and plans;
    4. ​Works were not carried out in a good and workmanlike manner, using proper materials and that the completion of the scheme were not fit for the purpose intended.
  • The Claimant also contends that the Respondent was instructed that ​the rooms should make a good impression on the parties to the arbitration. The Respondent  told the Claimant that their company did a lot of hotel and restaurant work, and that the Respondent had a very good idea of what the Claimant wanted, that were something very special to impress anyone who came to the suite.
  • The introduction of plants or pictures would not make any difference to the visual effects of the fleur-de-lys pattern of the wallpaper. The Claimant contends that the patterns had been proved to affect the concentration of the occupants of the room. 
  • The Claimant also contends that the Respondent was instructed that the table in the arbitration room was to seat twelve people in comfort with space for files and plans. Equally the table should have space for the arbitrator to sit at the head of the table, sufficiently remote from other parties to make notes in confidence; while there should be space for a witness, again remote from other parties.  
  • The Claimant further contends that the Respondent had promised to show the samples to Mr. Fairuz privately before the meeting and to allow sufficient time for them to discuss the Respondent’s proposed scheme in detail. This however was not done.

The Respondent's Case

In defending against the Claimant’s claims, the Respondent contends that:-
  1. There were no express terms of the agreement between the parties that the completed arbitration suite should be suitable for quasi-legal proceedings and that the decor should reflect the gravity of the proposed use and Mr Aminuddin's status in his profession. The term ‘quasi-legal proceedings’ was never mentioned by the Claimant or any of its agents. 
  2. The wallpaper in the arbitration room was approved by the Claimant at the meeting on 1 April 2012. It would be satisfactory with the introduction of pictures and plants to break up any visual impact. The wallpaper in the waiting area is one which the Respondent has used elsewhere in the commercial premises without previous complaint. It is wholly suitable for the room in which it was hung and it had been approved by the Claimant at the meeting on 1 April 2012.
  3. The table was capable of seating twelve people and was therefore suitable for its purpose. In any event, the Respondent agreed to replace the table at no extra charge to the Claimant. 
  4. Works were carried out in a good and workmanlike manner, using proper materials that has been approved by the Claimant and that the issue of fit for the purpose does not arise as the design and materials had prior approval from the Claimant.

Analysis

  • Having considered all pleadings, evidence and arguments put forth by the parties before me, my analysis and findings in respect of this issue are as follows.  
  • Arbitration suite  suitable for quasi-legal proceedings:
    1. At the outset, I record my observation that the Claimant’s witness, Mr. Fairuz, was less than convincing that he had spelled out the Claimant’s requirements in his meetings with the Respondent’s representative, Mr. Ghani. Whilst Mr. Fairuz may have a good idea of the requirements and atmosphere at an arbitration meeting. I am doubtful that the same had been conveyed by the Mr. Fairuz to Mr. Ghani.   
    2. The Claimant stated that they wanted something very special to impress anyone who came to the suite. The Respondent made known that they did a lot of hotel and restaurant work, and that they  had a very good idea of what the Claimant wanted.  I take the position that both Danny Ghani and Sr.R. Fairuz Din, each have their very own ideas as to what the arbitration suit should look like and they may not be at the same page.  
    3. Therefore, I find that the Respondent proposed design along the commercial line, based on their previous experienced and had been duly acknowledged by the Claimant, without a proper design brief issued by the Claimant, to be acceptable. 
  • The wallpaper in the arbitration room and the wallpaper in the waiting area:
    1. ​In so far as the issue of wallpaper in the arbitration room and waiting room, my findings and analysis are as follows. 
    2. The Claimant contended that the Respondent failed to give sufficient time to the Claimant to discuss the Respondent’s scheme in detail. In fact, the Respondent only produced the quotation and samples a mere 5 meetings before the meeting was to start.
    3.  The Claimant also vaguely alluded to the fact that Mr. Aminuddin and Mr. Fairuz had reservation about the colours and wallpapers selected by the Respondent although two junior partners expressed delight in the designs at the meeting. 
    4.  I find the Claimant’s above arguments unsustainable. 
    5.  If indeed there was insufficient time for the Claimant to deliberate on the Respondent’s proposed design of the wallpapers, there is nothing to prevent the Claimant from informing the Respondent of its decision in due course. 
    6.  This was not done. On the contrary, the Claimant approved the proposals made by the Respondent.
    7.  The fact that Mr. Aminuddin and Mr. Fairuz had reservations about the wallpaper whilst the junior partners are delighted with the designs are irrelevant. 
    8.  This is not a case where the Claimant contended that the designs were approved by the junior partners who had no authority to do so. On the contrary, the designs were approved by the Claimant at the meeting with the Respondent. It must be noted that there were 10 partners at the meeting.
    9.  The difference in view between the junior partners on the one hand and Mr. Aminuddin and Mr. Fairuz on the other hand, in my analysis, is an internal matter within the Claimant which does not concern the Respondent. 
    10.  In passing, I find it somewhat surprising that the two junior partners had so much influence during the day of the meeting. When asked, the Claimant’s witness, Mr. Fairuz, was unable to explain why the two junior partners had so much influence during the day of the meeting when there were 10 partners there. 
    11.  The evidence showed that it is indisputable that the design of the wallpapers has been agreed by the Claimant. I find and hold that the wallpaper scheme has indeed been agreed by the Claimant. 
    12.  Having agreed to the design of the wallpapers, the Claimant is not allowed to renege or resile from the common position by the parties. In this respect, I agree with the Respondent’s contention. 
    13.  Whilst the Claimant contended that the visual effects of the “fleur-de-lys” pattern of the wallpaper had been proven to affect the concentration of occupants in the room, the Claimant did not lead any evidence to prove the same. 
    14.  In this case, the Claimant failed to lead any expert evidence to prove its contention that the “fleur-de-lys” pattern will affect the concentration of the occupants in the room. 
    15.  The Claimant also did not lead any evidence to prove that the occupants of the room during the arbitration conducted by Mr Aminuddin were affected by the wallpapers and suffered headaches.
    16. Accordingly, I find and hold that the Claimant had failed to prove that the wallpapers are not fit for their intended purpose.
    17. Given that the burden of proof lies with the Claimant, I find and hold that the Claimant had failed to prove on the balance of probabilities that the Respondent had breached the express terms and/or implied terms of the contract in that the design and materials used were defective and/or unfit for their purpose.  
  • Table in the Arbitration Room :
    1. In respect of the table in the arbitration room, the evidence showed that Mr. Fairuz had made known to the Respondent of the Claimant’s requirement for twelve chairs at the table. 
    2.  However, I am not convinced that Mr. Fairuz, the Claimant’s witness, had made known of the amount of space at the table needed to accommodate plans and documents. Indeed, under cross examination, Mr. Fairuz was unable to testify with certainty as to whether any dimensions for the table had been discussed. 
    3.  This appears to be consistent with the Respondent’s understanding that requirement in respect of the table in the arbitration room is only that it would seat twelve people.
    4.  Based on the foregoing, I find and hold that:- 
      1.  the Claimant had only communicated its requirement that the table would seat twelve people. 
      2. The Claimant had not communicated the other requirements for the table such as the amount of space at the table needed to accommodate plans and documents or the requirements as to any dimensions for the table.
    5.  Consequently, the requirement that the Respondent is obliged to fulfill is only that the table would seat twelve people.  
    6.  Ancillary to this issue is whether there is an additional requirement that the table would seat twelve people “in comfort”. I will deal with this issue below.
    7.  The evidence showed that the table would indeed be able to seat twelve people around the table. This is undisputed. Indeed, Mr. Fairuz in its witness statement admitted that there was space for twelve chairs around the table. 
    8.  On the issue of whether there is a requirement that the table would seat twelve people “in comfort”, this is irrelevant given my earlier finding that the Respondent is only obliged to provide a table that would seat twelve people given that it is the only requirement that was communicated to them.
    9.  In any event, even if this “in comfort” existed, I find and hold that there was no breach of this requirement. It must be borne in mind that the burden of proof lies at all material times with the Claimant. In this case, the Claimant had not produce a shred of evidence to support its allegation that the table would not seat twelve people “in comfort”. 
    10.  Neither Mr. Aminuddin nor any participants of the alleged abortive arbitration were called to give evidence in this present case. I find and hold that the Claimant had failed to prove that the table would not seat twelve people “in comfort”.  
    11.  Based on the foregoing, I find and hold that the table that was provided by the Respondent would seat twelve people. The Respondent therefore had fulfilled its obligation in so far as the table in the arbitration room is concerned.  
  • Fitness for Purpose:
    1. I find that in the closing remark the Respondent, said that everything that had been supplied was with the express approval of the Claimant while the Respondent had made recommendations only; it was impossible for the Respondent to look into the minds of the Claimant company, to be conclusive and therefore;
    2. I agree that fitness for purpose was not a real issue here. This was not a case such as IBA v & B/CC. where the Respondent knew the purpose for which the works were required. Here there was no specification as such. While the Respondents were experienced designers, their skill was limited to aesthetic assessment. There was no complaint that the wallpapers were unattractive; only that they did not measure up to the Claimant's expectations of an image which only they knew they sought to attain. There was no warranty nor could there be in law, as to fitness for purpose. This was not a case of defective material, nor could it be said that the work had been carried out negligently. Nor was there any misrepresentation or mis-statement as in the 18A case.
    3. As the burden of proof vested upon the Claimant to proof that works were carried out by the Respondent not in a good and workmanlike manner, there was not an iota of evident presented upon me and I therefore dismiss such claim entirely 

ISSUE 02: LOSS AND EXPENSE

In consequence of the said breaches of contract, ​whether the Claimant  suffered loss and expense amounted to  the sum of RM 21,500.00 as damages such as:
  1. ​by reason of the inadequate size of the table. and the effects of the wallpaper in the arbitration room, Mr Aminuddin was obliged to adjourn an arbitration for two weeks and thereby lost fees amounting to RM20,000.00; and 
  2. the Claimant was unable to use the rooms or any of them until 23 October with consequent loss of revenue of RM1,500.00?


The Claimant's Case

The Claimant further claim loss and expense amounted to  the sum of RM 21,500.00 as damages such as:
  1. ​by reason of the inadequate size of the table. and the effects of the wallpaper in the arbitration room, Mr Aminuddin was obliged to adjourn an arbitration for two weeks and thereby lost fees amounting to RM20,000.00; and 
  2. the Claimant was unable to use the rooms or any of them until 23 October with consequent loss of revenue of RM1,500.00?

The Respondent's Case

In defending against the Claimant’s claims, the Respondent contends that:-
  1. ​the burden of proof vested upon the Claimant for the  lost fees amounting to RM20,000.00. In any event the damage claimed is too remote.  The respondent was not informed that any particular arbitration was to be held before the said table was replaced. If it was necessary to abandon an arbitration in the arbitration room, the said arbitration could have been held elsewhere, Accordingly the Respondent says that the Claimant has failed to mitigate any loss it may have suffered.; and
  2. As to loss of revenue, the Respondent was not informed that the Claimant was intending to charge for the use of the arbitration suite, and accordingly the alleged losses are too remote.

Analysis

  1. After considering the pleadings made by the parties and the evidence presented upon me, I find that the Claimant has not succeeded its claim for entitlement of loss and expenses based on the following reasons:
    1. The Respondent is not liable to the cause leading to the adjournment of an arbitration for two weeks as deliberated; and
    2. ​The balance of probability that the said arbitration could not have been held elsewhere due to short notices were remote; and 
    3. ​The Claimant has failed to mitigate any loss it may have suffered.
    4. ​​The Claimant has failed to proof actual loss incurred.
  2. I hereby dismiss all claims by the Claimants on entitlement of loss and expenses.

ISSUE 03: LIQUIDATED DAMAGES

whether  there is a breach by the Respondent in:
  1. that the Respondent ought to have completed the work in time thus causing a delay to occur; and
  2. that in the event of a delay, is there an agreed express and/or implied terms that the Respondent is liable to pay for Liquidated Damages; and
  3. whether the Claimant was entitled to claim for Liquidated Damages amounted to RM 6,000.00

The Claimant's Case

The Claimant claimed that:
  1. ​The work ought to have been completed by 30 September 2012. However the actual completion including the remedial works have been completed on 23 October 2012.
  2. It was agreed that the provision for liquidated damages for non-completion was to be set at RM 2,000.00 per week. 

The Respondent's Case

The Respondent defended that:
  1. The works were completed on time and the Claimant is thus not entitled to such damages. ​

Analysis

For the entitlement of Liquidated Damages the following events must occurred: -
  1. There must be actual delay. The work ought to have been completed by 30 September 2012. The decorative work including curtains and carpets were completed on 29 September 2012 and the furniture was delivered on 30 September 2012. There was no recorded delay as the completion, as claimed on 23 October 2012 takes into account of remedial work. 
  2. There must be Liquidated Damages clause in the parties' agreement. In the absent of the formal agreement, notwithstanding that the claimant insist that the Liquidated Damages clause be inserted in the Respondent letter of offer, there was no express or implied acceptance of such clause in the parties' agreement. 
  3. I take upon such that there is first no actual delay and second, there is no prior agreement between the parties on Liquidated Damages, the Claimant is not entitle to Liquidated Damages.

ISSUE 04: COUNTERCLAIM

Whether the Respondent was entitled to counterclaim for the replaced wallpaper and the table in the sum of RM1,800.00 for the new table and RM700.00 for labour and materials in replacing wallpaper. ​

​The Respondent's Case ​

  1. The Respondent has replaced wallpaper and the table without charge hitherto.
  2. However, in view of the action by the Claimant, the Respondent seeks payment for the replaced wallpaper and the table.
  3. Therefore in the sum of RM1,800.00 for the new table and RM700.00 for labour and materials in replacing wallpaper. 

The Claimant's Case

  1. The Claimant avers that the Respondent is not entitled to the costs of the table and redecoration. The same were incurred only because of the Respondent's breach of contract.  

Analysis

  1. The Respondent has all rights to seek payments for the replaced wallpaper and the table, in view that the Respondent is not the defaulting party. 
  2. ​Upon contemplating on the facts and evidence presented, I allowed the Respondent for counterclaim amounted to RM2,500.00 plus cost.

INTEREST

  1. Both the Claimant and Respondent ​claimed for Interest pursuant to Section 33(6) of the Arbitration Act 2005 at such rate and for such period as the Arbitrator shall determine?
  2. I now examine the issue of pre-award interest payable on the awarded sum and am aware of the Court of Appeal's Judgment in Far East Holdings Bhd & Anor v Majlis Ugama Dan Adat Resam Melayu Pahang (2015) 4 MLJ 766 where the Court held that the legislature did not intend to confer power on the Arbitral Tribunal to award pre-award interest based on the absence of specific words in the statute.
  3. I now examine the issue of post-award interest payable on the awarded sum. Sec 33 of the Arbitration Act 2005 (Amended 2018) governs the granting of interest and provides:​ “(6) Subject to subsection (8), unless otherwise agreed by the parties, the arbitral tribunal may, in the arbitral proceedings before it, award simple or compound interest from such date, at such rate and with such rest as the arbitral tribunal considers appropriate, for any period ending not later than the date of payment of the whole or any part of— (a) any sum which is awarded by the arbitral tribunal in the arbitral proceedings; (b) any sum which is in issue in the arbitral proceedings but is paid before the date of the award; or (c) costs awarded or ordered by the arbitral tribunal in the arbitral proceedings;"
  4. The practice of the court was to give 5% simple interest per annum based on the Chief Justice of Malaysia Practice Direction No 1 of 2012. I accept that this will be the rate of interest applicable to the award. 

COST​

  1. Sec 44(1) of the Arbitration Act 2005 (amended 2018) provides: "Unless otherwise agreed by the parties - (a) the costs and expenses of an arbitration shall be in the discretion of the arbitral tribunal who may - (i) direct to and by whom and in what manner those costs or any part thereof shall be paid; (ii) tax or settle the amount of such costs and expenses ; and (iii) award such costs and expenses to be paid as between solicitor and client".
  2. As the parties had not claim for costs, I have concluded that both parties shall bear their own costs.

AWARD

  1. Now, I I.M.ABLE, having carefully considered all the statements, documents and submissions placed before me, as well as the evidence given at the hearing, do hereby MAKE AND PUBLISH THIS MY FINAL AWARD in full and final settlement of all claims in this arbitration.

DECISION

  1. I HEREBY AWARD AND DIRECT as follows: 
​
  1. Claimant's claim is dismissed in its entirety.
  2. Claimant shall forthwith pay the Respondent the sum of RM2,500 together with interest of 5% per annum from the date of payment of those costs until the date of this award.
  3. Claimant shall forthwith pay the Respondent fees of the arbitration of which I had determined in sum of <SUM> together with interest of 5% per annum from the date of payment of those costs until the date of this award.
  4. Claimant shall forthwith pay the Respondent interest of 5% per annum in respect of any and all the amounts from the date of this award until full and final payment thereof.

Made and published by me in KUALA LUMPUR, which is the seat of the arbitration, on this 30 DECEMBER 2017
​
                 [SIGNED]
......................................................
I.M.ABEL
Arbitrator
Kuala Lumpur.
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​PAM - CIArb ROUTE TO ARBITRATOR COURSE - SAMPLE EXAMINATION (continue 03)

1/16/2019

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​STAGE II

The following are extracts from your Notebook which you have highlighted as of importance to you. There is of course a lot more than this but you have weeded it out. ​

​EXTRACTS FROM THE ARBITRATOR'S NOTE BOOK


Although pursuant to the agreed Directions, only witnesses whose written statements had been served 14 days before the hearing were to be allowed to give evidence, 1 was asked by the Claimant to allow evidence by En.Mohd.Hassan who had not served a statement. I was informed that En. Hassan had come to the hearing after service on him of a subpoena_ He was a former employee of the Respondent and did not give evidence willingly.

The Respondent's counsel opposed the Claimant's application and demanded at least an outline of what En.Hassan would say. Counsel for the Claimant said that this was not possible: he did not know what En.Hassan would say. After argument for about half an hour, the Respondent's counsel agreed that the evidence should be given 'de bene esse' and that I should indicate in my Award how much weight should be given to En.Hassan's evidence. 

• De bene esse means to act provisionally or in anticipation of a future occasion: to take evidence for future use while it is available'. ​

​In his opening speech for the Claimant, Mr Zakaria laid great stress on fitness for purpose. The Respondent had been a firm specialising in design matters and held themselves out as experts in that respect. They had been told of the purpose to which the rooms would be put. Proof of their breach of the implied terms of their contract was the distress to which the participants of the first arbitration had been put. ​

In cross examination Mr Fairuz was less than wholly convincing that he had spelled out the Claimant's requirements in his meetings with Mr Ghani. Mr Fairuz obviously had a good idea of the atmosphere at an arbitration meeting. However, it was doubtful if he had conveyed this to Mr.Ghani.

The size of table in the arbitration room was a case in point. While it was clear that he had made known the requirement for twelve chairs at the table, it appeared unlikely that he had made known the amount of space at the table needed to accommodate plans and documents. He was unable to say whether any dimensions for the table had been discussed.

At the partners' meeting the Respondent's presentation consisted only of a board about 600 mm square on which were stuck tiny samples of the carpet, curtains, chair fabric and wallpapers, There was a small photograph of a chair on the board and a slither of plywood veneer to show the wood to be used on the table. Mr Fairuz was unable (in cross-examination) to explain why the two junior partners (out of ten partners at the meeting) had so much influence on the day.

He was unable to throw any light on the discussions following the adjournment of the arbitration. In particular he seemed to be evasive when 'asked if there was any agreement that T.Kassim Interior Designs Ltd should be paid for the replacement table or wallpaper.

Fn Mohd.Hassan said that he had been T.Kassim's buyer at the time of this contract When the budget price had to be reduced below RM 30.000 plus Govt tax. He and Ghani had decided to purchase a smaller table for the main arbitration room than had been intended. There was a particular table which they could purchase economically which would seat twelve although they knew at the time that seating arrangements would be tight.

The new table was 300 mm shorter than the original choice. The wallpaper for the waiting-room was used because they had a surplus stock from another job (an Indian restaurant as it happened). As to the fleur-de-lys paper, he had known problems with eye-strain on other jobs. Where used in large spaces there had been no trouble, but they had been asked to remove it from the rooms where hotels had put on training courses. Cross-examined on this point he was unable to say at which hotel this had occurred. ​

Ghani said that at the first meeting he had shown Fairuz photographs of completed schemes carried out by his company_ Some of these had used the wallpapers subsequently adopted for this project, He recalled that he had also taken some brochures of tables although he was unable to say whether they were tables which were then specified. He had shown Fairuz samples of carpet but not wallpaper or curtains. ​

​In his closing speech Mr-FY Chan for the Respondent, said that everything that had been supplied was with the express approval of the Claimant. The question of the design of the wallpapers was a matter of subjective judgment. His clients had made recommendations only; it was impossible for the decorators to look into the minds of the Claimant company.

Fitness for purpose was not a real issue here_ This was not a case such as IBA v & B/CC. where the Respondent knew the purpose for which the works were required. Here there was no specification as such. While the Respondents were experienced designers, their skill was limited to aesthetic assessment. There was no complaint that the wallpapers were unattractive; only that they did not measure up to the Claimant's expectations of an image which only they knew they sought to attain. There was no warranty nor could there be in law, as to fitness for purpose. This was not a case of defective material, nor could it be said that the work had been carried out negligently. Nor was there any misrepresentation or mis-statement as in the 18A case.
​
As to the losses said to have been incurred, no-one could have foreseen the effect of visual images on a commercial enterprise. The procedure in arbitration was apparently unusual. It was not as though the Claimant had instructed the Respondents to design a court-room, nor was it clear that an arbitrator had to be clothed with some special image which was remote from that of a judge. A judge relied on his position (and perhaps his wig and robes) to convey the impression of authority. A judge did not rely on the colour of the wallpaper in his rooms: and the Respondents could not be expected to second guess any such effect..; It followed that it was not necessary to hold up or delay the arbitration proceedings. The Claimant should have been alive to the possibility of any physical reaction to the surrounding ambience and should have instructed the Respondent accordingly. Any damage which followed was too remote. It could not have been foreseen by the Respondents, nor, In any case, did the Claimant take any steps to mitigate any losses which might have been actually incurred. Accordingly the claim had no real foundation and the arbitrator was invited to dismiss it

Claimant's Closing Address

​Mr.Zakana's closing address concentrated on the IBA case and its forerunner Ganasen v Bayau in the earlier case where the House of Lords had drawn a distinction between a term which is said to be implied by law and a term which is to be implied in fact. Despite that distinction here, as in Ganasen, the evidence shows that both parties were of one mind on the subject of their contract: their common intention was that the Respondent should design a series of rooms which would be fit for the purpose for which they were required. The common intention gave rise to a term implied in fact.

Equally in IBA, the House of Lords had found that EMI had a contractual duty for the design of the mast. Although EMI had no specialist knowledge of mast design, and IBA knew that and did not rely on their skill to any extent for the design, there was nothing unreasonable in holding EMI responsible for the design. Thus here, although the Respondent had no specialist knowledge of the design of arbitration rooms, there is nothing unreasonable in holding them responsible for the design. It is quite clear that, in Malaysian law, where a particular purpose is made known to the designer, he (the designer) has an obligation to produce a design that is fit for that particular purpose, and that is so whether or not there is negligence.

In fact the evidence showed that the special requirements of the Claimant had been conveyed to the Respondents. The Respondents had a duty to ensure that the designs would be fit for their purpose. It was unsatisfactory for the Respondents to make no research into, or inquiries about what happened in arbitrations. It would have been clear to them that they were not designing a fish and chip parlour, or a hotel. There were distinct criteria that had to be applied in this case.

With that in mind it is clear that the losses were foreseeable. Whatever the rooms were to be used for it must have been in the Respondent's minds, if they stopped to think about it, that any business use, if hindered, would carry financial consequences. Again it was a case that the Respondent should have made enquiries about the financial effect of interference with the use of the rooms.
​
The question of the size of the table had not been addressed by the Respondent. Here was a clear example of the Respondent's casual approach to the task. On any standard it was obvious that the Respondent should have known that a table that was too small would have dire effects on the use of the rooms. The reduction in the overall budget was no excuse for choosing a smaller table. The space required at the table was crucial to the scheme, and the Respondent knew it. On this aspect of the case the Respondent had come close to negligence.

​All in all, the Respondent's work had proved to be virtually useless and the Claimant was entitled to compensation.
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​PAM - CIArb ROUTE TO ARBITRATOR COURSE - SAMPLE EXAMINATION (continue 02)

1/16/2019

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TRANSCRIPTS OF ORAL STATEMENTS


​WITNESS STATEMENT OF Sr.Roslan FAIRUZ Din (CLAIMANT)

1.I am a partner of the Claimant firm, I have worked for the firm for the last 12 years. I am qualified as a quantity surveyor and project manager.
 
2.In about February 2012 Mr Aminuddin, our senior partner, suggested that it would be sensible to establish an arbitration suite in the firm's offices. Mr Aminuddin sits regularly as an arbitrator but he frequently has difficulty finding suitable rooms to hold his arbitrations. When, as normally, he leaves the venue to the parties they often book cramped or otherwise inappropriate rooms. The cost is frequently high. Often Mr Aminuddin has to travel further than he would like. 
 
3.A sub-tenant had recently left the building leaving us with four rooms which would form an annex to the offices. We decided that we could make the smaller rooms into a waiting area and two conference or consulting rooms for the use of the parties, while the largest room would make an ideal arbitration room. 
 
4.It occurred to us that if the rooms were a success it would be possible to offer them for hire to other arbitrators for their arbitration hearings. There is a good car park outside the offices and there are good convenient links with motorways and main line railway stations. 
 
5.It was important to ensure that the rooms should make a good impression on the parties to the arbitrations. The last tenants had left the premises in a downbeat state. I knew an architect who I thought might be able to make some general suggestions but we did not want to pay exorbitant architects' fees for what was a straightforward decorating job. He, Jamaluddin Che Mat, advised that under the circumstances we should approach T Kassim Interior Designs Ltd; they would be able to provide a package to include design, all necessary Interior Design (ID) work and the supply of furniture. 
 
6.I arranged to meet Mr Ghani of the Respondent company. We met at the premises on Friday 24 February 2012. I explained that we wanted something very special to impress anyone who came to the suite. He told me that their company did a lot of hotel and restaurant work, and that he had a very good idea of what we wanted. 
 
7.He outlined his ideas straight away. These included putting in new suspended ceilings with concealed lights together with some up-lighters on some walls. He felt it was important to have curtains, rather than blinds, at the windows, while the carpets should be high quality (he had direct connections with contract carpet firms).
 
8.He suggested wallpaper throughout the suite to make a rich impression. He also proposed that we should have significant indoor plants but I said that in view of the amount of space which would be taken up with files and plans at arbitration hearings, we would rather have as much space as possible uncluttered by plants.
 
9.I told him that the tables needed to be large enough to accommodate twelve people in the arbitration room and six in each at the consultation rooms. I had already said how much space documents took. 
 
10.He went away and about two weeks after our meeting he produced a budget price of over RM32,000 plus Govt tax. I told him that we wanted to keep the expenditure to about RM35,000 all-in; that is including Govt tax. He said that in that case it might be necessary to economise somewhat on the suspended ceilings and carpets. 
 
11.In terms of carpets, he had recently come across a new design which had a look of exceptional quality, but which was quite economical.  My reaction was to ensure that we did not cut corners, so I was keen to see and discuss samples of all the materials to be used, including the table designs. He arranged to meet me again on 24 March and I told him that would be a suitable day because we had a partners' meeting a week later. It was suggested that if I approved of the samples he should make a presentation to the partners' meeting on 31 March. 
 
12.One other matter which I stressed to Mr Ghani was the importance of completing the work on time. Mr Aminuddin was to start a long arbitration on 9 October 2012. Leading counsel had been engaged by each party so it was an opportunity to use our new arbitration rooms. I agreed with Mr Ghani that the work should be completed by 30 September 2012. 
 
13.On 24 March he telephoned to say he had been called away to an important meeting but that he would telephone again in a day or so to make new arrangements. This happened several times during that week. In the end it was decided to postpone the partners' meeting until Saturday 1 April so that we would not be disturbed. I continued to try to get a meeting with Mr Ghani before then so that I could be fully involved in the choice of materials. 
 
14.In the end Mr Ghani arrived with his samples about 5 minutes before the partners' meeting on the Saturday. I had no chance at all to see what he was going to propose. This put me in some difficulty because some of the partners had started to make comments about the overall costs. In consequence I felt obliged to defend Ghani's firm against adverse criticism at the partners' meeting without the opportunity to ensure that the proposals were entirely suitable. 
 
15.In the event I was most unhappy about the samples which Ghani displayed at the meeting. There were no alternatives to choose from and I thought some of the colours and wallpapers were a bit garish for the use to which we would put the rooms. However, two of our junior partners expressed such delight in some of the papers and curtains that no one objected at the time. However, I know that Mr Aminuddin was not altogether happy about the scheme. 
 
16.Nevertheless, because the price came within our budget I was instructed by the other partners to accept the proposals. I set about arranging for the contract to be drawn up. Mr Ghani suggested that a PAM Minor Works Contract would be suitable and I agreed. I expected to draw this up but Mr Ghani said he would do it. I arranged a meeting between Mr.Aminuddin and Mr Ghani to sign the contract before Mr.Aminuddin went away on holiday. On the day Mr Ghani arrived but without the contract. He said he would put it in the post but he never did. 
 
17.The work got under way on time and at first there were no snags. No one in the partnership was enthusiastic about the wallpapers when we first saw them, but I thought they would look better when the carpets and curtains were put in and when the furniture arrived. 
 
18.In fact the waiting-room looked no better: I thought the wallpaper in there made the room look like an Indian restaurant while others thought it looked like a brothel. I complained to Ghani but he said that they had used that paper often elsewhere without criticism. 
19.When the table was put into the arbitration room it was clear that it was not big enough. It looked puny in the room and I had serious doubts whether it would accommodate the numbers of persons which would sit at the table in an arbitration. However, the chairs arrived shortly after and there was just space for twelve chairs around the table. 
 
20.Since Mr Aminuddin's arbitration was due to start within a few days, we said nothing to T.Kassim Interior Designs Ltd about the table. Once the arbitration started, though, it became clear that there were serious difficulties. Everyone at the arbitration complained about lack of space which embarrassed Mr Aminudin. 
 
21.Worse was to follow, because by the afternoon of the first day many participants in the arbitration complained of eye-strain and headaches. It appears that the fleur-delys pattern (the motifs of which were about 100 mm apart) of the wallpaper had an adverse visual effect on people who were concentrating hard on the proceedings. 
 
22.In desperation Mr Aminuddin decided that the arbitration should be adjourned. I contacted Ghani and asked for an urgent meeting with him. At first he refused to accept that there was anything wrong but eventually he agreed to replace the wallpaper in the arbitration room and to obtain a new, larger table. Unfortunately this could not be done before 23 October, but with the commitments of counsel and witnesses the arbitration could not re- start until 30 October. 
 
23.We are still left with the peculiar wallpaper in the waiting-room which creates a bad impression.  ​

​PROOF OF EVIDENCE OF DANNY GHANI (RESPONDENT) 

​1.I am the sales director of the Respondent company and I have held that position since 2000.  I hold a National Diploma of Design.
 
2.Early in 2012 I was asked by Jamalludin Che Mat, an architect who does some work with us, to contact a firm called Hamid Aminuddin.  Eventually I made contact with Sr.R. Fairuz Din who asked me to call at their offices.
 
3.He had four rooms, which were slightly away from their main offices, which they wanted re-decorating.  He said that they were rooms in which they would hold meetings and they wanted them to be nice to give a good image.
 
4.I told them that we did a lot of work on conference suites and dining-rooms in hotels.  I got a pretty good picture of what he was after.  I thought that they ought to have some bold papers to make an impression and I got out the basis of a scheme so that I could put some figures to it.
 
5.When I next saw him I gave him a budget cost, but he said it was too much.  I went away again and re-drafted the figures to suit the amount they wanted to spend.  I telephoned him and he wanted me to give a presentation to his partners and I said I would.  He also wanted to go through everything with him again before the meeting but he had all the information and I was quite busy at the time so in the end I wasn’t able to see him.  The date of the partners’ meeting was changed to a Saturday but as it happened I was able to comply with that.
 
6.I showed them all the colours I had chosen and had some small samples of the carpets and curtains.  I had photographs of a similar table to the one which was to go in the arbitration room so they could get a good idea of the scheme.  They were all enthusiastic.  Two of the younger partners were very taken with the wallpapers.
 
7.They were all things we had used before.  The wallpaper for the waiting-room was one we put in the bar at the tenpin bowling alley at Mid Valley Megamall.  It looked very smart there.  As for the fleur-de-lys* for the arbitration room, we used that in several hotel dining-rooms.
 
8.I thought that the big table looked good.  Each end was semi-circular.  The top was in ash with a mahogany inlay around the edge.  We had chosen narrow-backed chairs to go with it.  They were standard dining-room chairs but we had the backs covered in a special fabric.  When I had them delivered all twelve of them went round the table easily enough.
 
9.After the work was finished R.Fairuz made a great fuss.  I told him it was a bit late to start complaining about the wallpaper so long after they had approved it all.  I could see that the way they had the arbitration room arranged the fleur-de-lys could be a bit disturbing so my boss agreed to re-hang another pattern, but there is no reason why the Claimants should not pay for it.
 
10.As for the table, we decided to replace it and see whether it could be used for one of our other jobs.  We often specify something like that but in the period since then no other suitable scheme has come along and we have it on our hands and it is in our way at our headquarters.
 
11.In my view there was nothing wrong with our work.  I was never told half of the things which they have put in their Points of Claim.  There was no indication of any special meetings in the rooms; so far as I was concerned they were just the usual run of commercial offices.  I was not told the tables had to be especially big; nor was I told that the rooms could be let to others. 

Note : *  "fleur-de-lys" is "flower of the lily." This symbol has been described by some as depicting a stylized lily or lotus flower.  A decorative symbol with 3 petals that appears like a golden flower, but found in all manner of logos, symbols, and patterns.  ​

THE CLAIMANT’S COUNSEL HAS INDICATED THAT HE WILL REFER TO THE FOLLOWING CASES AT THE HEARING OF THIS ARBITRATION: ​​

Ganasen & Co Contractors Bhd v Bayau & Partners (1975) 1 WLR 1095 (1975) 3 ALL ER 99. 
 
You have looked at a synopsis of the case in Hudson’s Building and Engineering Contracts which state :
 
‘A turnkey contractor engaged structural engineers to design the frame of a factory building, the floors of which were required to accept the weight of stacker trucks moving over them carrying oil drums.  As designed, the floors were not in fact able to withstand the resonance forces set up by the movement of the trucks.  The contractor sued his engineer for damages.  The trial judge expressly stated that there was no negligence but implied a term of suitability, suggesting that a high duty might be implied by law than that owed by professional men generally.
 
‘Held by the Court of Appeal, that while in general no higher duty rested on a structural engineer than that formulated in Bolam’s cases* for professional negligence, on these particular facts, since the design and build contractor was liable to the owner without qualification for a suitable design, the Defendants were liable to the contractor under a term to be implied from the particular facts.
 
*Note: The principle of Bolam’s case is:
 
Where you get a situation which involves the use of some special skill of competence ... the test is the standard of the ordinary skilled man exercising and professing to have that special skill.  A man need not possess the highest expert skill ... it is sufficient if he exercises the ordinary skill of the ordinary competent man exercising that particular art. 

Independent Broadcasting Authority v EMI Electronics and BICC Construction (1980) 14 BLR 1, HL; affirming (1978) 11 BLR 29, CA
 
Again you have found a synopsis in Hudson which states:
 
‘The designers and suppliers of a television mast, who were subcontractors under a main contract entered into in December 1983, wrote directly to the owners in response to technical enquiries from them on 11 November 1984, at a time when difficulties had been experienced with oscillations and vibration of another mast previously completed under another contract.  After dealing with queries by the owners and suggestions by them for monitoring the effect of wind resistance on the design, they concluded with the words:
“However, we are well satisfied that the structures will not oscillate dangerously ...”.  As a result, work continued without further investigation of the stability of the masts.
 
‘The Court of Appeal held that the design was not negligent but held that the letter constituted a contractual warranty supported by consideration.
 
‘Held by the House of Lords that although not strictly a collateral warranty, it was nevertheless, following Hamidan Said & Co v Burhanuddin, necessary to show an animus contrahendi*.  Here there was no intention to enter into a contractual obligation to be found in the owner’s letter or in the subcontractor’s letter of reply.  But (over-ruling the Court of Appeal) the subcontractor’s design had been negligent and the representation itself was, in the light of the situation at the time, also negligent, so that the subcontractors were liable to the owners under the Hedley Byrne principle.’
 
* Animus contrahendi means an intention to make an agreement.
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​PAM - CIArb ROUTE TO ARBITRATOR COURSE - SAMPLE EXAMINATION (continue)

1/16/2019

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BUNDLES OF DOCUMENT


T Kassim INTERIOR DESIGNS LIMITED ​
​22, Jalan Anggerik Villa
40450 Shah Alam
Selangor 

28 February 2012 

​Sr.Fairuz Din
Messrs Hamid Aminuddin & Partners  
L 18, Plaza Tun Ismail,
Jalan Pokok,
Raub, Pahang.
 
Dear Sirs  

​RE: PROPOSED ALTERATIONS TO NEW OFFICE SUITE

Further to our discussions of Friday concerning the above work, I have pleasure in forwarding to you our quotation.

For work of this nature our terms require for valuation of the works at the end of each period of four weeks and for payment of the amount due less a retention of 5 percent. After completion of the work there would be a period of three months for the rectification of any defects, after which the retention would be released. 
 
Any variations will be valued either by an approved quotation, failing which the value will be calculated at net cost plus a percentage addition of 20 percent.
 
The existing structure together with the works are to be insured by your company. We may determine the contract in circumstances where you fail to make payment of any interim valuation: or upon the liquidation or other act of bankruptcy of your company. 
 
Any dispute relating to the contract shall, upon the application of either party, be referred to an arbitrator appointed by the President of the National Institute of Interior Designers pursuant to the Arbitration Act 2005. The arbitrator’s decision is to be final and binding on the parties. 
 
Should you have any queries, please do not hesitate to contact either myself or T Kassim and we shall be pleased to assist you. 
 
We look forward to hearing from you shortly. 
 

Yours faithfully 
Danny Ghani  
 
Enc  

T Kassim INTERIOR DESIGNS LIMITED ​
​22, Jalan Anggerik Villa
40450 Shah Alam
Selangor

26 February 2012 
​

Messrs. Hamid Amiruddin & Partners,
L 18, Plaza Tun Ismail
Jalan Pokok,
Raub, Pahang 

RE: QUOTATION

1.         Suspended Ceilings  
No alternatives have been quoted: ceiling tiles of both have a 600 x 600 white metal grid system but the tiles differ in both pattern and quality.
 
Type A: 
Mainboard Tatra fissured (as existing tiles in your present offices) 
 
Type B: 
Microbock Sektor (similar to the Reception Area on the Ground Floor) 
 
All lighting quoted is to be 600 x 600 modular, having 4 no tubes per fitting and complete with bat-wing reflectors- 
 
Type A ceiling, including lighting for total area: RM5,890.40 
Type B ceiling, including lighting for total area: RM8,140.60 
 
2.          Decoration to all areas  

a) to strip all walls of their existing coverings and to prepare and make good ready to receive new papered finishes. 
b) to prepare all woodwork and metal-framed windows and apply 2 no undercoats and, no gloss coat of oil based paint. 
c) to supply and hang new decorative wallpaper finishes. 
 
                                Waiting-room              RM   836.00 
                                Conference rooms      RM 1,308.60 
                                Arbitration room          RM 2,235.00 
 
3.         Curtains  
Supply and hang full working curtains to 6 no windows, all having a goblet-style heading and decorative tie-backs, fully lined and treated to appropriate degree of flame retardancy. Fabric to match decoration for each room. RM2,308.60 
 
4.          Supply and install  
Supply and install the following office furniture, all to be in ash finish, with seating fabrics to co-ordinate with decoration in each room: 
 
a 24 no chairs   RM 6,760.00 
b 1 no table (oval)     RM   633.25  
c  4 no tables to form one large table  RM 1,665.00 
d  1 no table (round)     RM   629.50 
 
5.         Carpets  
To supply and lay Grandmaster carpet including underfelt and all necessary accessories to the following areas: -
Waiting-room  RM   774.00 
Conference rooms RM 1,101.60 
Arbitration room RM 2,618.00 
 
6.         Sundry  
Hardwood shelves. other Joinery works including new lock and electrical alterations: RM3,276.48 
 
Grand total excluding Govt tax   RM 34,900.55 
All prices are subject to 6% Govt tax  ​

Hamid Aminuddin and Partners Quantity Surveyors and Construction Contracts Advisers  
L 18, Plaza Tun Ismail 
Jalan Pokok, 
Raub, Pahang

3 March 2012  

Danny Ghani 
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa 
40450 Shah Alam
Selangor 
​
Dear Mr Ghani, 

Proposed refurbishment, Plaza Tun Ismail ​

Thank you for meeting me last Friday, and for your quotation dated 28 February. 
 
I have discussed the prices with Mr Aminuddin and we consider that we should limit our spending on the capital works to about RM35,000 inclusive of Govt Tax. That means that the gross cost should not exceed RM30,000. I appreciate that we could use the cheaper version of the suspended ceiling but we are keen that it should match the present offices on that floor. 
 
Would you therefore please see whether any savings could be made in the carpets or furniture. Having said that, as you know we are anxious to make the refurbished suite as impressive as possible given the use to which it will be put. 
 
There is to be a partners' meeting on Friday 31 March and I should like to present to the partners a final scheme for approval. Before that date I should be pleased to meet you again so that we can discuss colours, wallpaper designs, carpet choices, etc. Perhaps you could come here to discuss these matters on Friday 24 March, at say 2.30 pm. 
 
With best wishes  

​Sr.R. Fairuz  

T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor

9 March 2012

​Sr.Fairuz Din
Messrs Hamid Aminuddin & Partners  
L 18, Plaza Tun Ismail,
Jalan Pokok,
Raub, Pahang.

Dear Mr Fairuz ​

RE: PROPOSED ALTERATIONS TO NEW OFFICE SUITE, PLAZA TUN ISMAIL

Thank you for your letter dated 3 March.
 
I am pleased to enclose my revised quotation as requested. I shall be pleased to meet you on 24 March as suggested. Perhaps you would like me to give a presentation of the scheme to your partners at their meeting on 31 March.
 
Yours sincerely 
 
Danny Ghani
 
Enc  

T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor

9 March 2012Sr.

​Fairuz Din
Messrs Hamid Aminuddin & Partners  
L 18, Plaza Tun Ismail,
Jalan Pokok,
Raub, Pahang.

Dear Mr Fairuz ​

REVISED QUOTATION FOR EXISTING OFFICES ​

Please refer to original quotation, dated 28 February 2012: 
 
1.          Furniture: all hardwood to be in beech 
 
                24 chairs                                 RM 5,762.00 
                Oval table                                RM   620.00 
                Large table                              RM 1,500.00 
                Round table                            RM   618.00 
 
2           Carpets throughout                 RM 3,328.56  ​​

Hamid Aminuddin and Partners
​Quantity Surveyors and Construction Contracts Advisers  ​
L 18, Plaza Tun Ismail 
Jalan Pokok, 
Raub, Pahang

15 March 2012  

​Danny Ghani 
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa 
40450 Shah Alam
Selangor 
​
Dear Mr Ghani, 

Proposed refurbishment, Plaza Tun Ismail

Thank you for your revised quotation dated 9 March. 
 
Although no decision can be made before the partners' meeting I think we should work to the prices which you have given. As I mentioned before I think it is important that we should meet to discuss the colour scheme before the meeting because it is vital that we convey the right image with the new rooms.  It may be helpful for you to make a formal presentation to the partners but I think we should meet beforehand.
 
If a contract is signed immediately after the partners' meeting would you have sufficient time to complete the works by 30 September? Mr Aminuddin has an arbitration starting soon after and needs to fix a venue well before then. 
 
We are quite content with the terms set out in your letter dated 28 February. However, we would want provision in any contract between us for liquidated damages. You will no doubt understand that we are anxious to ensure that the work is completed on time and as far as we can estimate delay would cost us in the region of RM2,000 per week. We would thus want a clause to that effect. 
 
Kind regards  
​Sr.R. Fairuz

Hamid Aminuddin and Partners
Quantity Surveyors and Construction Contracts Advisers ​
L 18, Plaza Tun Ismail 
Jalan Pokok, 
Raub, Pahang

25 March 2012  

​Danny Ghani 
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa 
40450 Shah Alam
Selangor 
​
Dear Mr Ghani, ​

Proposed refurbishment, Plaza Tun Ismail

Thank you for telephoning. I am sorry that you were unable to meet me yesterday. Please will you let me know when we can meet. 
 
The partners' meeting has now been put back to Saturday 1 April at 10 am. I hope that you can attend then, but in any event as I have said before I think it vital that we meet before then. 
 
Please will you telephone me. 
 
Many thanks  
​Sr.R. Fairuz

Hamid Aminuddin and Partners
Quantity Surveyors and Construction Contracts Advisers ​​
L 18, Plaza Tun Ismail 
Jalan Pokok, 
Raub, Pahang

03 April 2012 

​Danny Ghani 
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa 
40450 Shah Alam
Selangor 
​
Dear Mr Ghani, ​​

Proposed refurbishment, Plaza Tun Ismail

I am writing to confirm my telephone call and to let you know that after you left the meeting on Saturday my partners agreed to go ahead with the works described in your quotations and they have therefore instructed me to accept your offer. 
 
I understand that you will prepare the formal contract including the terms set out in your letter dated 26 February together with a clause which I suggest should be in the following terms: 
 
In the event of any delays arising out of the contractor's failure to complete the works by 30 September 2012 the contractor shall pay liquidated damages to the employer at the rate of RM2,000 per week. 
 
You were good enough to indicate that you would bring the formal contract to these offices on Thursday 6 April at 12 noon for signature. Mr Aminuddin has arranged to be in the office that day and he will sign the contract on behalf of the firm. By my calculation the contract sum is now RM29,932.82 which is subject to Govt tax. 
 
As you know the present tenants leave on Friday 28 April so that we can let you have possession of the rooms to start work on Monday 1 May (or Tuesday if you do not work on the Labour Day Holiday). 
 
Yours sincerely 
​Sr.R. Fairuz

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​PAM - CIArb ROUTE TO ARBITRATOR COURSE - SAMPLE EXAMINATION

1/16/2019

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​PAM - CIArb ROUTE TO ARBITRATOR COURSE - SAMPLE EXAMINATION

Time allowed: 3 hours. 
 
Please complete the Identification cover sheet on the front of your answer book. 
Candidates are permitted to bring any relevant material into the examination room. 
You are asked to write a Reasoned Award and refer to all the information contained In the papers sent to you prior to the examination and in the Extracts from the Arbitrator's Notebook which is attached. 
Candidates should answer this examination paper on the basis of the current state of the law of Malaysia. 
Please: remember not to use your own name when signing the award. You should use the fictitious name supplied in the information.  

​​AWARD WRITING EXERCISE

You are asked to write a Reasoned Award based on the papers enclosed (pages 2-22) and the Arbitrator's Notebook which will be made available to you at the start of the examination. 
 
You may, using the information provided prior the examination, work on any aspect of your final submission before the date of the examination. This work, including any draft of the recitals in as far as you have been able to complete them from the information already provided, may be taken into the examination room and, if you so wish, be submitted as part of the final script However you should not assume that any of your final script can be completed prior to the examination. 
 
Note: Please remember not to use your own name when signing the Award.  You should use the fictitious name supplied in the information.
Candidates should not assume that information given in the enclosed papers will remain unaltered at the hearing.  
 PLEASE BRING THESE PAPERS WITH YOU TO THE EXAMINATION.

​YOUR TASK...​

On 10 January 2017 you, I.M Abel, were appointed by the President of the National Institute of Interior Designers (Pertubuhan Pereka Dalaman  Nasional) (PPDN) to be the arbitrator in this dispute. The PPDM have sent you a copy of the form sent with the application made by the Claimant for the appointment of an arbitrator. The form indicated that the dispute concerns the interior design of a suite of offices and that approximately RM21,500.00 is in issue. The contract terms, including the arbitration clause, is set out in the enclosed bundle of documents.
 
You invited the parties to a preliminary meeting but their solicitors suggested that a meeting would incur unnecessary costs and they agreed directions which they asked you to confirm. 
 
Pleadings and witness statements, enclosed with these papers, were served in accordance with the agreed directions. In accordance with the parties' agreement you also gave directions for discovery and for the service of witness statements. Neither party has requested directions concerning expert witnesses. 
 
A hearing has been arranged to be held at Pertubuhan Akitek Malaysia (PAM), 99-L Jalan Tandok, Bukit Bangsar, 59100 Bangsar, Kuala Lumpur on 21 February 2017 with two days reserved. 
 
The parties have asked that your award should have reasons for your decision. ​

​PLEADINGS

IN THE MATTER OF THE ARBITRATION ACT 2005
and
in the matter of an arbitration 
Between​  
Hamid Aminuddin and Partners Claimant
and 
​T. Kassim Interior Designs Limited   ​ Respondent 


POINTS OF CLAIM


  1. ​The Claimant is a firm of quantity surveyors and construction contract advisers, the senior partners of which, Mr Hamid Aminuddin, sits regularly as arbitrator. The Respondent is, or purports to be, a company specialising in interior design.   
  2. By a quotation in writing dated 28 February 2012, as amended by a document dated 9 March, 2012, the Respondent tendered for the design and execution of interior decorations, together with the provision of furniture, carpets and curtains in an arbitration suite at the Claimant’s offices at Plaza Tun Ismail, Jalan Pokok, Raub, Pahang. The said tender was accepted by the Claimant shortly thereafter.  
  3. The Claimant agreed to terms proposed by the Respondent under which the works would be carried out. It was agreed that the contract sum was to be RM 30,000.00 + Govt tax; that the works were to be completed by 30 September 2012; and that provision for liquidated damages for non-completion was to be set at RM 2,000.00 per week. The Respondent proposed to prepare the formal contract for signature.  
  4. In fact, despite constant reminders from the Claimant, the Respondent never produced the contract form.  
  5. Notwithstanding that the formal contract document was not signed, there were express terms of the agreement between the parties that the completed arbitration suite should be suitable for quasi-legal proceedings and that the decor should reflect the gravity of the proposed use and Mr Aminuddin's status in his profession, and that the table In the arbitration room was to be large enough to seat twelve people in comfort with space for files and plans. Tables in each of the consultation rooms’ were to be large enough to sit six people in comfort.   
  6. Further there were implied terms of the agreement that the works should be carried out in a good and workmanlike manner, using proper materials and so that on completion the scheme should be fit for the purpose intended.   
  7. The decorative work including curtains and carpets were completed on 29 September 2012 and the furniture was delivered on the following day.   
  8. Notwithstanding the purported completion of the works, in breach of the express and/or implied terms aforesaid the design and materials used were defective and/or unfit for their purpose.   
  9. PARTICULARS OF BREACH  
  10. ​the wallpaper in the waiting area was wholly unsuitable for the premises; 
  11. the table in the arbitration room would not seat twelve people in comfort; and 
  12. the wallpaper in the arbitration room and in the consultation rooms, a fleur de lys pattern, created visual difficulties and caused headaches and loss of concentration.
  13.  In consequence of the said breaches of contract the Claimant has suffered loss and expense. 
  14. PARTICULARS OF LOSS 
  15.  by reason of the inadequate size of the table. and the effects of the wallpaper in the arbitration room, Mr Aminuddin was obliged to adjourn an arbitration for two weeks and thereby lost fees amounting to RM20,000.00; 
  16. the Claimant was unable to use the rooms or any of them until 23 October with consequent loss of revenue of RM1,500.00.
  17. AND THE CLAIMANT CLAIMS 
  18. Damages pursuant to paragraph 9 herein in the sum of RM 21,500.00, 
  19. Alternatively liquidated damages amounting to RM 6,000.00. 
  20. Interest pursuant to Section 33(6) of the Arbitration Act 2005 at such rate and for such period as the Arbitrator shall determine. 

B L Zakaria Served this 25 April 2014 by 
Zakaria & Ong
Advocate & Solicitors
Raub, Pahang


IN THE MATTER OF THE ARBITRATION ACT 2005
and
in the matter of an arbitration 
Between​  
Hamid Aminuddin and Partners Claimant
and 
​T. Kassim Interior Designs Limited   ​ Respondent 


POINTS OF DEFENCE AND COUNTERCLAIM


DEFENCE

1.The Respondent denies that it is liable to the Claimant for the sums claimed or at all. 
 
2.Save that the Respondent knows nothing of Mr Aminuddin's activities, paragraph 1 of the Points of Claim is admitted.
 
3.Paragraph 2 of the Point of claim is admitted.  The Respondent attended a meeting at the Claimant’s offices on 1 April 2012 at which the design together with samples and colour boards, were presented to the partners of the Claimant firm. The design was considered and accepted by the Claimant. 
 
4.Paragraph 3 & 4 of the Points of Claim admitted. 
 
5.Paragraph 5 of the Points of Claim is denied. The Claimant's request was for a design scheme on normal commercial lines. The term ‘quasi-legal proceedings’ was never mentioned by the Claimant or any of its agents. The Respondent further denies that any mention was made of Mr Aminuddin's status.
 
6.As to the table in the arbitration room, the Respondent avers that the table first provided would seat twelve people. In fact the Respondent agreed to replace the table, and did so at no extra charge notwithstanding that the, table was suitable for its purpose as expressed by the Claimant. 
 
7.If, which is not admitted there were implied terms of the agreement as pleaded in paragraph 6 of the Points of Claim, the Respondent implied with such terms.
 
8.Paragraph 7 of the Points of Claim is admitted and averred. 
 
9.Paragraph 8 of the Points of Claim is denied. The wallpaper in the waiting area is one which the Respondent has used elsewhere in commercial premises without previous complaint. It is wholly suitable for the room in which it was hung and had been approved by the Claimant at the meeting on 1 April 2012. 
 
10.The table in the arbitration room was capable of seating twelve people as stated above. 
 
11.As to the wallpaper in the arbitration room, it was approved by the Claimant at the meeting on 1 April. It would be satisfactory with the introduction of pictures and plants to break up any visual impact.
 
12.Paragraph 9 of the Points of Claim is denied. The Claimant is put to strict proof of any loss. In any event the damage claimed is too remote.  The respondent was not informed that any particular arbitration was to be held before the said table was replaced. It is further denied that the wallpaper had an effect such as to cause the adjournment of an arbitration. 
 
13.Further, if, which is denied, it was necessary to abandon an arbitration in the arbitration room, the said arbitration could have been held elsewhere, Accordingly the Respondent says that the Claimant has failed to mitigate any loss it may have suffered.
 
14.As to loss of revenue, the Respondent was not informed that the Claimant was intending to charge for the use of the arbitration suite, and accordingly the alleged losses are too remote.
 
15.As for the claim for liquidated damages pleaded in the prayer to the Points of Claim, the Respondent avers that the works were completed on time and the Claimant is thus not entitled to such damages. ​

COUNTERCLAIM 

16.The Respondent repeats paragraphs 1 to 4 herein by way of Counterclaim. 
 
17.Further the Respondent has replaced wallpaper and the table without charge hitherto. However, in view of this action the Respondent seeks payment therefore in the sum of RM1,800.00 for the new table and RM700.00 for labour and materials in replacing wallpaper. 
​
AND THE RESPONDENT COUNTERCLAIMS  

​1. RM2,500.00 pursuant to paragraph 17 herein. 
 2. 5% simple interest per annum. 
 3. Costs.  

Chan Ping Yau   Served this 22 May 2014  by 
Yee & Sung
Solicitors for the Respondent 
Kuala Lumpur 


IN THE MATTER OF THE ARBITRATION ACT 2005
and
in the matter of an arbitration 
Between​  
Hamid Aminuddin and Partners Claimant
and 
​T. Kassim Interior Designs Limited   ​ Respondent 


POINTS OF REPLY AND DEFENCE TO COUNTERCLAIM 


​1.The Claimant joins issue with the Respondent on its Defence.
 
2.In particular the Claimant avers, in respect of paragraphs 2 and 5 Of the Points of Defence, that at meetings in or about February 2012, Mr Fairuz, a partner in the Claimant firm, advised the Respondent that the completed arbitration suite should be suitable for quasi-legal proceedings and that the decor should reflect the gravity of the proposed use and Mr. Aminuddin's status in his profession.
 
3.As to paragraph 3 of the Defence, while it is admitted that samples were shown to a partners' meeting on' April 2012, the Respondent had promised to show the samples to Mr Fairuz privately before the meeting and was to allow sufficient time to discuss the Respondent's proposed scheme in detail. In fact the Respondent, by its Mr Danny Ghani, produced the quotation and samples a mere five minutes before the meeting was to start. 
 
4.Accordingly while Mr Aminuddin and Mr Fairuz had reservation about the colours and wallpapers selected by the Respondent, two junior partners of the firm expressed delight in the designs at the meeting. The quotation was satisfactory in financial terms and accordingly the Claimant approved the proposals and instructed Mr Fairuz to agree terms with the Respondent. 
 
5.As to paragraph 6 of the Defence, the Respondent was instructed by Mr Fairuz that the table in the arbitration room was to seat twelve, people in comfort with space for files and plans. Equally the table should have space for the arbitrator to sit at the head of the table, sufficiently remote from other parties to make notes in confidence; while there should be space for a witness, again remote from other parties. Mr Ghani was made well aware of the importance of these requirement and made notes on them. 
 
6.Although the Respondent may have hung wallpaper similar to that used in the waiting area elsewhere, as alleged in paragraph 9 of the Defence, it is plainly inappropriate to the use of the arbitration suite. The Claimant says that the wallpaper is more suitable for a restaurant or equivalent use. 
​
7.As to paragraph 11 of the Defence, the Claimant denies that any introduction of plants or pictures would make any difference to the visual effects of the fleur-de-lys pattern of the wallpaper. It had been proved to affect the concentration of occupants of the room. As an experienced firm of designers the Respondent knew or ought to have known that the wallpaper would be quite unsuitable for its purpose. 
 
8.The Respondent was informed by Mr Fairuz that the purpose of the arbitration suite was for use by Mr Aminuddin in his arbitrations and was to be offered for hire to other arbitrators. 
 
9.Further, in setting the date for completion at 30 September 2012, the Respondent was informed that Mr Aminuddin had an arbitration which was due to start on 9 October 2012. In the event the parties, their representatives and witnesses complained of lack of space at the table so that the progress of the arbitration was hindered. Late on the first day of the hearing the participants complained that the wallpaper created visual difficulties and caused headaches. Accordingly it was decided to adjourn the hearing until the Respondent could take remedial measures. 
 
10.Although the Respondent agreed to replace the table and to re-paper the walls, in the event the remedial work was not complete until 23 October 2012. 
 
11.The Claimant joins issue with the Respondent on paragraph 12 of the Defence. At meetings between Mr Fairuz for the Claimant and Mr Ghani for the Respondent the purpose of the rooms in the arbitration suite was made plain. At all material times the Respondent knew or ought to have known that the rooms would be used for arbitration whether those conducted by Mr Aminuddin or by others.
 
12.As to paragraph 13 of the Defence, the arbitration which started on 9 October could not be held elsewhere at short notice. 

​DEFENCE TO COUNTERCLAIM  ​

13. The Claimant avers that the Respondent is not entitled to the costs of the table and redecoration. The same were incurred only because of the Respondent's breach of contract.  

B L Zakaria Served this 25 April 2014 by 
Zakaria & Ong
Advocate & Solicitors
Raub, Pahang ​


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