Stay of arbitration proceedings

• Main Author: Rosdi, Mohd. Syafiq
• Format: Thesis
• Language: English
• Published: 2011
• Subjects: K Law (General)
• Online Access: http://eprints.utm.my/id/eprint/33873/5/MohdSyafiqRosdiMFAB2011.pdf; http://eprints.utm.my/id/eprint/33873/

Arbitration is an alternative to the judicial process and is one of the available methods appropriate for resolving complex disputes. When a dispute arises between parties to an arbitration agreement, a party may initiate an arbitration proceedings. However, it is possible that if a party finds, in the course of the proceedings, the dispute is not suitable, for a certain reason, for arbitration that party may seek the court’s assistance to stay the arbitral proceedings. The Arbitration Act 2005 does not contain a specific provision for this eventuality. The only way is for that party to apply to the court for stay the arbitration proceedings by way of an injunction. The law cases show that it is made available only in limited circumstances. There is no clear pronouncement from the courts. Therefore, this master project intends to identify what are the circumstances that the courts take into consideration when granting or refusing an application of injunction relief to restrain the arbitration proceedings. This project is carried out mainly through documentary analysis of law cases that are reported in law journals, such as Malayan Law Journal, Singapore Law Report, Building Law Report, etc. The result shows that there are six circumstances in which injunctions are granted to stay arbitral proceedings and four circumstances that are considered by the court in refusing to grant injunction. The circumstances in which injunctions are granted to stay of arbitral proceedings are allegation of fraud, parties not part of arbitration agreement, no dispute arises, impeachment of validity of arbitration agreement, balance of inconvenience, and unqualified arbitrator. While the circumstances that the courts take into consideration in refusing to grant an injunction for stay of arbitration proceedings are abuse of the process of the court, delay in applying injunction relief, partiality of arbitrator, and reference to adjudication. Therefore, it is hoped that both the successful and unsuccessful application for injunctions that has been discussed would provide a guideline to parties of arbitration agreement when they resort to injunction for stay of arbitration proceedings.