Case settlement conferences given a 'festive' touch - Hong Kong, Beware: High Court refuses permission to rely on new witness statement prepared part way through trial - United Kingdom, Parties can now request an extension to object to expert reports - Turkey, Clarification of rules on fast-track appeal proceedings - France, Court rules former director of AIAC's directorship is non-justiciable, Derivative proceedings: leave of court is substantive legal requirement, Competing claims in curial and arbitral proceedings: recent anti-arbitration injunction developments. subjected the stay to any decision made in the plaintiff’s application to grant a stay of enforcement of the adjudication determination pending the disposal of proceedings in the suit. The court ought to give a wide interpretation to the arbitration clause to serve, as far as the language used by the parties in the arbitration clause will permit, the commercial purpose of the arbitration clause. The Federal Court's decision shows the court's reluctance to interfere with the principle of party autonomy. Trial for more than one offence 166. Federal Court of Malaysia, which is the highest court. Given that the respondent had admitted its liability, the Federal Court was satisfied that the only dispute left was the issue of the amount or quantum to be paid. However, the grant of a stay of proceedings for arbitration does not occur automatically. 107/1958; Sabah and Sarawak—25 February 1965, L.N. Joinder of Causes of Action . 67/1965] PART I PRELIMINARY Short title and application 1. Whether Section 106 of the Income Tax Act 1967 is contrary to Article 121(1) of the Federal 3. A few weeks ago, in R. c. Goldberg, 2020 QCCQ 4548, the Court of Québec (Criminal and Penal Division) granted the most drastic remedy by ordering a stay of the charges brought against Bouclair Inc. (Bouclair), Peter Goldberg and Erwin Fligel, respectively the company's Chief Executive Officer (CEO) and vice-president, for alleged tax evasion offences. The reason for this is well established in that the Courts will not deprive a successful party of the fruits of their litigation (see Serangoon Garden Estate Ltd v Ang Keng [1953] MLJ 116). When a party is appealing a decision of a lower court to a higher court, it is trite that appeals do not operate as a stay of execution (see s.57 of the Court of Judicature Act 1964). 2. Introduction Datuk Seri Abdul Azeez Abdul Rahim is pictured at the Kuala Lumpur Court Complex August 19, 2020. ― Picture by Firdaus Latif. However, the courts will be willing to stay execution if it is apparent that special circumstances exists on the facts that warrant the grant of a stay. It proves clarity to lawyers and the inferior courts regarding where the law stands in relation to the courts' power to stay proceedings pending arbitration. (1) This case restates the Malaysian courts' position in respect of their intervention in arbitration. This was recognised in the case of Government of Malaysia v Datuk Haji Kadir Mohamad Mastan and another application [1993] 3 MLJ 514 where Ian Chin JC held at p 521 that: “An attempt was made to define special circumstances by Raja Azlan Shah (as His Majesty then was) in the case of Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86, viz: ‘Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances. of the Korean rehabilitation proceedings and to stay all proceedings against it until 25 January 2017. In addition, if a binding arbitration agreement exists between the parties, the court must grant an order to stay the court proceedings pending reference to arbitration on application by any party to the agreement for a stay order. STAY OF ARBITRATION PROCEEDINGS MOHD SYAFIQ ROSDI A project report submitted in partial fulfillment of the requirements for the award of the degree of Master of Science (Construction Contract Management) Faculty Build Environment Universiti Teknologi Malaysia July 2011. i I’M A DREAMER, AND TODAY ONE OF MY DREAMS COMES TRUE. Subsequently, the appellant suffered substantial losses and damage as a result of a disruption to its smelting operation caused by an extensive power outage, which forced the plant to be shut down temporarily. this agreement cannot be null and void, inoperative or incapable of being performed. The only way is for that party to apply to the court for stay the arbitration proceedings by way of an injunction. Halsbury’s Laws of England, 3rd Edition, Volume 17, paragraph 455, page 272 under the heading Grounds on which stay is granted states: —, “The court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing. The third and most recent decision enforced the two earlier decisions and reiterated the Malaysian courts' position on staying proceedings pending a reference to arbitration. The sum insured for machinery breakdown was RM200 million and the sum for lost profits was RM100 million. Order-41 Rule-5(1): “Stay by Appellate Court-An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may Section 10(1) reads: Where before the hearing of an originating summons or a notice of application under this Order- Separate charges for distinct offences 164. This update summarizes three arbitration disputes involving construction contracts. The appellant commenced legal proceedings before the high court against the respondent for, among other things, an indemnity by the respondent under the policy in respect of all losses and damage suffered by the appellant arising out of the incident and various declaratory orders and damages for breach of the policy and fraud committed by the respondent in the issuance of the policy. Whether it is unjust for the Plaintiff to file the current reliance on Order 69, Rule 10(3) of the Rules of Court 2012 to suggest that the court should decide whether the subject matter falls within the terms of the arbitration clause and Section 10(1) of the act. 2. ILO is a premium online legal update service for major companies and law firms worldwide. Trial for more than one offence 166. The Benefits of Filing a Police Report for Fraud Cases, Preparing your Appeal Papers to be Filed in the Court of Appeal, Offer To Settle vs Trial: Alternatives to Court Drama, The Erinford Injunction: Maintaining Status Quo Pending Appeal. It should be noted that any application to stay should be done promptly so as to not be seen to be unfairly depriving a successful party of the fruits of their litigation (see Ajaib Singh v Jeffrey Fernandez [1971] 1 MLJ 139).Â. Datuk Seri Abdul Azeez Abdul Rahim is pictured at the Kuala Lumpur Court Complex August 19, 2020. ― Picture by Firdaus Latif. Stay of Executions Proceedings Posted on July 27, 2020 by Ahmad Iyas Husni When a party is appealing a decision of a lower court to a higher court, it is trite that appeals do not operate as a stay of execution (see s.57 of the Court of Judicature Act 1964). (2) At issue was a payment pursuant to a retention bond issued by the plaintiff bank in favour of the first defendant. CIRCUMSTANCES, APPLICATION FOR STAY OF PROCEEDINGS DISMISSED GOVERNMENT OF MALAYSIA v. MNMN Lumpur I S S U E S Whether special circumstances exist to warrant the grant of a stay of proceedings? This was recognised in the case of Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257 where the Federal Court at para [18] held that: “… It is therefore clear beyond doubt that there are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one. The section 10 of the Act allows the other party to apply to the court for stay of the court proceedings provided that he has not taken any other steps in the proceedings. I also granted the interim stay on enforcement sought by the plaintiff. not operate as a stay. The Court of Appeal took the wrong approach by making a substantive determination over whether a ‘dispute’ could properly exist. (2) The court, in granting a stay of proceedings pursuant to subsection (1), may impose any conditions as it deems fit. In respect of machinery breakdown, "if any difference arises as to the amount paid under this certificate (liability being otherwise admitted), such difference shall be referred to the decision of an arbitrator". By way of an insurance contract, the respondent agreed with the appellant to insure all critical plants and machineries against sudden and unforeseen damage from any cause not excluded. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription. (g) On 19.05.2017, the Appellant filed an application pursuant to Order 12 rule 10 (2) Rules of Court 2012(“ROC”) to stay the proceedings on the basis that Malaysia is not the proper forum pursuant to the exclusive jurisdiction clause. LexisNexis Civil Litigation Series: Stay of Proceedings. The debtor could be debt to individuals or companies Malaysia has a two-tier system of appeal. The Federal Court decision provides a useful reminder that the principle of party autonomy in arbitration, unless there is cogent basis not to adhere to it, will be upheld by giving effect to the arbitration agreement as long as it is not null and void, inoperative or incapable of being performed. Whether it is unjust for the Plaintiff to file the current Overview The Federal Court affirmed the Court of Appeal's decision and made the following findings. The debtor could be debt to individuals or companies Ever wondering why the law works the way it does, Iyas constantly pushes the limits of his curiosity to find the ever elusive “Answer” to all of his questions. TEE International said in a bourse filing on Saturday that MDIS (Malaysia) Sdn Bhd has commenced two sets of arbitration proceedings against its wholly-owned Malaysian subsidiary TEE E&C Malaysia Sdn Bhd and the company in Singapore on March 6, 2020. Therefore, such a stay does not undo the actions of the liquidators but only halts the proceedings. The weight of authorities appears to me to say that the special circumstances must be special, not ordinary, common or usual circumstances and that go to the execution of the judgment and not to the validity or correctness of the judgment (or merits of the appeal).“. It is noteworthy that the courts are not only concerned about upholding Parliament's intention that a stay of proceedings pending reference to arbitration is mandatory unless otherwise exempted, but also to respect the core principle of party autonomy entrenched in Malaysian law. This type of stay is discretionary and can be reversed at the discretion of the Crown. Iyas is the kind of person who constantly has something on his mind. In respect of this, the Federal Court agreed with the judge's finding that: "even though the placement slip does not expressly contain an arbitration clause, it is not a disputed fact that the placement slip makes reference to the expired policy number which contained an arbitration clause, and as such the said arbitration clause was effectively incorporated in the new policy by the reference made in the placement slip.". Required fields are marked *. The Gan Partnership website can be accessed at www.ganlaw.my. Separate charges for distinct offences 164. In relation to this, the Federal Court was satisfied that the requirements were fulfilled. An ad interim stay does not mean that a winding up petition cannot be filed as bankruptcy and winding up proceedings was not within the ambit and meaning of ‘execution’ proceedings as provided by O 46 r 1 of the Rules of High Court 1980 which states as follows: CIRCUMSTANCES, APPLICATION FOR STAY OF PROCEEDINGS DISMISSED GOVERNMENT OF MALAYSIA v. MNMN Lumpur I S S U E S Whether special circumstances exist to warrant the grant of a stay of proceedings? Based on the arbitration clauses, the respondent applied to the court for a stay of the proceedings pending reference to arbitration. There are two appellate courts with appellate jurisdiction: the Court of Appeal and the Federal Court. A stay can be entered by the Crown under s. 579. Stay is mandatory Save my name, email, and website in this browser for the next time I comment. The Federal Court's decision operates as a guideline, or more so as a precedent, for similar cases in the future. However, a stay is sometimes used as a device to postpone proceedings indefinitely. the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. Court may Order Separate Trials . This would mean that when judgment has been laid down, the successfully party may proceed to enforce and execute it even if an appeal has been filed by the opposing side. 4. He submitted that the appellate court should not interfere. 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