Arbitration Agreement

Essentials

According to Section 9(1) of the Arbitration Act, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement and the award must be in writing. An arbitration agreement can be made orally. Such an agreement is called a submission. An award of an oral arbitration cannot be enforced as a judgement of the court but only by an action on the award in that the party with the favourable award will have to bring a fresh action for breach of covenant .

The Arbitration Act 2005 (the Act) will apply throughout Malaysia . Under the same section, in respect of domestic arbitration, where the seat of arbitration is in Malaysia, Part I, II and IV of this Act shall automatically apply, and for Part III, it shall apply unless the parties agree otherwise. As for international arbitration, where the seat of arbitration is in Malaysia, Parts I, II and IV of this Act shall apply, and for Part III, it shall not apply unless the parties opt it in the arbitration agreement. Arbitrators are immune from any liability arises from the arbitration. This is stated in Section 47 of the Arbitration Act 2005.

Section 7 of the Act deals with the right of a party to waive his objection to the arbitration agreement where he realise that it has right to do so under this section by continue to proceed with the arbitration without stating it objection to such non-compliance. Regarding to the receipt of written communication, which can be found in Section 6 of the Act, both written communication sent either by post or electronically deemed to be received by the addressee if it is sent to the mailing address or to the electronic mailing address of the addressee, unless the parties stipulated otherwise.

The issue of whether mutuality is essential in arbitration agreement is never settled. There...