Refuse recognition & enforcement of Award Q5

Q.
a) With reference to the Arbitration Act 2005, explain the grounds for refusing recognition or enforcement of awards. (10 marks)

b) Explain the procedures of property auction. (10 marks)

(20 marks, 2012 Q5)

A.
Similar post on Recourse Against Award is referred here. However, one is about setting aside the arbitration award - s.37 and this question is about ground for refusing recognition or enforcement of awards (s.39).

Both the reasons are similar, but the stages of the process are different - s.37 is about setting aside the award before it is recognized and enforced. S.39 is about refusing the enforcement.

See another post on Appeals here.

Section 39 of the Arbitration Act 2005 specifically provides for the grounds for refusing recognition or enforcement of awards.

Grounds for refusing recognition or enforcement

39. (1) Recognition or enforcement of an award, irrespective of the State in which it was made, may be refused only at the request of the party against whom it is invoked—

(a) where that party provides to the High Court proof that—

(i) a party to the arbitration agreement was under any incapacity;

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of Malaysia;

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party’s case;

(iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

(v) subject to subsection (2), the award contains decisions on matters beyond the scope of the submission to arbitration;

(vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act; or

(vii) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or

(b) if the High Court finds that—

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or