Judicial interpretations on question of law under section 42 of arbitration act 2005
In making an arbitration award, the arbitrator must define it clearly, unambiguously, justly and enforceability. Once the award is made and published, is a final and binding document and enforceable as a judgment of the High Court. However, the award can still be challenged when an award contain que...
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| Format: | Thesis |
| Language: | English |
| Published: |
2017
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| Subjects: | |
| Online Access: | http://eprints.utm.my/id/eprint/79002/1/YeohZiYeeMFAB2017.pdf |
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| Summary: | In making an arbitration award, the arbitrator must define it clearly, unambiguously, justly and enforceability. Once the award is made and published, is a final and binding document and enforceable as a judgment of the High Court. However, the award can still be challenged when an award contain question of law where a court can set aside or remit the award to the arbitrator for further consideration. There is no provision in both 1952 Act and 2005 Act to limit and no clear definition as to what exactly means by "question of law". Thus, it does not provide guidelines for the losing party to decide whether the award can arise as question of law and should they challenge the arbitral award under this ground. Normally it is for the court to decide. Hence, this research intends to determine the judicial interpretations on "question of law under section 42 of Arbitration Act 2005". This research was carried out mainly through documentary analysis of law journals and law reports. Results show that there are six main judicial interpretations for "question of law" which include the grounds in support must also stated on the same basis, the question of law must be legitimate question of law, and not a question of fact "question of law" as a question of law, the court must dismiss the reference if a determination of the question of law will not have a substantial effect on the rights of parties, the intervertion by the court must only be if the award is manifestly unlawful and unconscionable, the arbitral tribunal remains the sole determiners of questions of fact and evidence and while the findings of facts and application of legal principles by the arbitral tribunal may be wrong (in Instances of findings of mixed fact and law), the court should not intervene unless the decision is perverse). It is recommended that the six judicial interpretations should be included in the Arbitration Act so that it can be the guidelines for the party who wish to challenge the award under the ground of question of law on the face of award. |
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