## Azirah Hashim*

## Aspects of Content and Language in the Malaysian Arbitration Act

## Abstract

This  paper  focusses  on  the  Malaysian Arbitration Act  of  1952  and  examines  some aspects of content in the Act as compared to that in the model Law. Some linguistic analysis is carried out and differences in terms of specifi  city and lack of adequate speci  fi  cation and differences in legal systems and procedures are discussed. The analysis shows that content and language are infl  uenced by national requirements and concerns, culture, legal system and other constraints.

## 1. Introduction

A dispute can be settled either by access to the courts or by way of alter  native resolution mechanisms. Arbitration is one of the alternative resolution mechanisms that are available in Malaysia. Arbitration has become more popular where commercial disputes are concerned due mainly to the efforts of the United Nations Commission on International Trade Law (UNCITRAL) and the Model Law on International Com  mercial Arbitration (the Model Law). Another reason is that it is the o  ldest dispute mechanism and is infl  uenced by litigation processes, but without the problems associated with litigation. In addition, it is the only alternative dispute resolution mechanism that provides a mechanism for the enforcement of awards. Lastly, the choice of arbitration is the parties and can be considered to be within the control of the parties (Xavier 2001: 2).

Arbitration originated from the desire of people who wanted their disputes to be resolved by their peers and not by an impartial third party. Today, arbitration is often presided over by retired judges and lawyers

* Azirah Hashim University of Malaya Azirahh@um.edu.my

77

and can be considered more complex and legalistic than what it was meant to be.

This paper will examine the discourse of the Malaysian Arbitration Act (MAA) as constructed and used in Malaysia. It will compare some aspects of the Act with that of the Model Law (ML), such as the the defi  nitions  given,  the  role  of  the  High  Court,  the  composition  of  the arbitral tribunal and the degree of specifi  city or lack of specifi  city in the MAA as compared to the ML. The structure of the MAA will be given as will the effects of the lexico-grammatical features in the Act, particularly with regard to all-inclusiveness and precision.

## 2. Legal Genres

Research on legal discourse has focused on legal discourse in profession  al and academic settings. Bhatia (1993), for example, analysed two genres:  legislation  and  cases  using  genre  analysis.  He  examined  the syntactic properties and cognitive structuring of legislative provisions and  the  structure  of  legal  cases  and  found  a  number  of  features  of legislations that make the document highly specifi  c and all-inclusive. Badger  (2003)  did  a  genre  analysis  of  newspaper  law  reports  and offers a description which links language to the context of culture and explains  how  the  lexico-grammar  and  text  structure  may  lead  to  the identifi  cation of the ratio decidendi. Feak et al. (2000) carried out an analysis of published student-written legal research papers which can be used as a model for the teaching of seminar paper writing. Issues that arise from some contradictory demands found in the Joint Declaration of  the  Government  of  the  United  Kingdom  and  the  Government  of the  People's  Republic of China on the question of Hong Kong have been  discussed  by  Bhatia  (2000),  and  the  problem  of  correct  legal interpretation of a standard sales contract used in the buying and selling of property in Denmark has been examined by Norlyk (2000).

## 3. Data and Methodology

The  data  in  the  study  is  the Malaysian Arbitration Act  1952 .  The provisions of the Act govern every arbitration agreement made under any  written  law  passed  before  and  after  the  commencement  of  the Act.  It  does  not  apply  to  arbitration  held  under  the  United  Nations Commission  on  International  Trade  Arbitration  Rules  1976  and  the Rules of the Regional Centre for Arbitration in Kuala Lumpur, except in certain cases.

The Malaysian  Arbitration Act has 34 sections and several subsections under 8 headings. The headings are:

1.  Preliminary
2.  Effects of Arbitration Agreement, etc.
3.  Arbitrators and Umpires
4.  Conduct of Proceedings, Witnesses, etc.
5.  Provisions as to Awards
6.  Costs, Fees and Interest
7.  Special Cases, Remission and Setting Aside of Awards, etc.
8.  Enforcement of Award

A  genre  analysis  of  the Act  includes  the  communicative  purpose  of the text, the move structures and the rhetorical features employed in constructing the text. In the analysis, the Act is divided into sub-genres, moves and sub-moves. The Arbitration Act is considered a genre and the sections within it are referred to as sub-genres. Identifi  cation of the prototypical elements involved, their sequencing and the realizations of each element are given.

Swales  (1990)  categorises  genres  according  to  their  set  of  shared communicative purposes. The purpose of each section or sub-genre is recognized by the expert members of the legal discourse community and  therefore  constitutes  the  rationale  for  the  labelled  sub-genres  in the  analysis.  The  sub-genres  can  also  be  referred  to  as  the  primary rhe  torical  functions  in  the  Act  and  the  secondary  functions  are  the moves. In various studies on genre analysis, the label 'move' has been used but not clearly defi  ned. The extent of a move appears to differ between  analyses  of  introduction  sections  and  those  of  discussions sections. Swales' (1990) three move introduction section consists of: estab  lish a territory, establish a niche and occupy the niche. The moves in discussion sections give functions such as 'statement of results' and 'hypothesis' (Dubois 1997; Hopkins and Dudley-Evans 1988). Move classifi  cations have been determined by sentence boundaries (Crookes 1986),  lexico-grammatical  units  (Hopkins  and  Dudley-Evans  1988; Peng 1987; McKinlay 1982), semantic units (Swales 1990) and indepen  d  ent  clauses  (Dubois  1997).  In  this  study  the  breakdown  of  the sub-genres into moves has been based on the consideration of moves as semantic units related to the writer's purpose. The micro rhetorical functions have been labeled sub-moves in the analysis.

The basic criterion for the different units is communicative purpose which can be mapped onto one clause or several clauses or even several sentences. In this analysis, the minimal constituent that realizes a commu  nicative pur  pose is a sub-move while a move is composed of one or more sub-moves. The linguistic features found in the generic structures are discussed in terms of how they serve to fulfi  l the rhetorical aims of the writer and how they are meant to affect the reader.

In the analysis of the language of the Act, the terms given by Bhatia (1993) are used. I shall give a brief explanation of each of these features as they will be used in the analysis of data.

## Nominal character:

Nominals can be noun clauses, phrases or nouns which are used, often quite lengthy, to include all the necessary information in the nominal.

E.g. The authority of an arbitrator or umpire appointed by or by virtue of an arbitration agreement

## Complex prepositional phrases:

The structure of a complex prepositional phrase has been given as P-NP (Preposition+ Noun+ Preposition). Examples given by Bhatia (1993: 107) are for the purpose of, in respect of, in accordance with and in pursuance of .

## Binomial and multinomial expressions:

Binomial and multinomial expressions refer to 'a sequence of two or more words or phrases belonging to the same grammatical category which have some semantic relationship and are joined by some syntactic device such as 'and' or 'or' (Bhatia, 1993:108). Examples are ' signed and de  liver  ed' , unless and until' and ' within Malaysia or elsewhere' .

## Initial case descriptions:

Often the legal subject is delayed by an initial case description in the form of an adverbial clause beginning with 'where', 'if' or 'when'.

Where it is provided by a term in a contract to which a bankrupt is a party that any differences arising thereout or in connection therewith shall  be  referred  to  arbitration ,  the  said  term  shall,  if  the  person having jurisdiction to administer the property of the bankrupt adopts the con  tract, be enforceable by or against him so far as relates to any such dif  ferences.

## Qualifi  cations:

Qualifi  cations are often inserted into syntactic boundaries making the provisions extremely restricted. Example:

Unless  a  contrary  intention  is  expressed  therein,  every  arbitration agreement shall, if no other mode of reference is provided , be deemed to include a provision that the reference shall be to a single arbitrator.

## Syntactic discontinuities:

When  a  qualifi  cation  is  inserted  within  the  syntax  of  a  legislative sentence right next to the word or phrase that it qualifi  es, this creates a syntactic discontinuity. This is illustrated in the above example , 'shall… ….be deemed to include' where the insertion of the qualifi  cation leads to a discontinuous verb phrase.

## 4. The Structure of the Malaysian Arbitration Act

The structure of the Act can be given as follows:

Sub-genre: Preliminary

Move 1  Title of Act

Move 2  Interpretation of the Act/defi  nition of rules

Sub-move 1  Defi  nition of 'arbitration agreement'

Sub-move 2  Defi  nition of 'commencement of this Act'

Sub-move 3  Defi  nition of 'High Court'

Sub-genre: Effect of Arbitration Agreement, etc.

Move 1  Authority of arbitrators and umpires to be irrevocable

Move 2  Death of a party

Sub-move 1  Arbitration  agreement  not  discharged  by  death  of  any party

Sub-move 2  Authority of arbitrator not revoked by death of any party

| Sub-move 3                                                                     | Sections no effect on the operation of any written law                                 |
|--------------------------------------------------------------------------------|----------------------------------------------------------------------------------------|
| Move 3 Bankruptcy                                                              | Move 3 Bankruptcy                                                                      |
| Sub-move 1                                                                     | Term in contract enforceable against the bankrupt                                      |
| Sub-move 2                                                                     | Any other person to the agreement may apply to the High Court for an order             |
| Move 4 Power to stay proceedings where there is no submission to arbitration   | Move 4 Power to stay proceedings where there is no submission to arbitration           |
| Move 5 Reference of interpleader issues to arbitration                         | Move 5 Reference of interpleader issues to arbitration                                 |
| Sub-genre: Arbitrators and Umpires                                             | Sub-genre: Arbitrators and Umpires                                                     |
| Move 1 When reference is to a single arbitrator                                | Move 1 When reference is to a single arbitrator                                        |
| Move 2 Power of parties in certain cases to supply vacancy                     | Move 2 Power of parties in certain cases to supply vacancy                             |
| Sub-move 1 Appointment of a new arbitrator in certain cases                    | Sub-move 1 Appointment of a new arbitrator in certain cases                            |
| Sub-move                                                                       | Appointment of sole arbitrator                                                         |
| 2 Move 3 Umpires                                                               | 2 Move 3 Umpires                                                                       |
| Sub-move 1                                                                     | Provision that two arbitrators shall appoint an umpire                                 |
| Sub-move 2                                                                     | Umpire may enter in lieu of the arbitrators                                            |
| Sub-move 3                                                                     | High Court may order that the umpire enter in lieu of the arbitrators                  |
| Move 4 Agreement for reference to three arbitrators                            | Move 4 Agreement for reference to three arbitrators                                    |
| Sub-move 1                                                                     | Appointment of an umpire                                                               |
| Sub-move 2                                                                     | Award of any two of the arbitrators to be binding                                      |
| Move 5 Power of High Court in certain cases to appoint an arbitrator or umpire | Move 5 Power of High Court in certain cases to appoint an arbitrator or umpire         |
| Sub-move 1                                                                     | Appointment of arbitrator if parties do not concur in the appointment of an arbitrator |
| Sub-move 2                                                                     | Appointment of arbitrator if appointed arbitrator is unable to act                     |
| Sub-move 3                                                                     | Appointment of arbitrator when two arbitrators do not appoint the third                |

| Sub-move 4                                         | Appointment of arbitrator when third arbitrator is unable to act                   |
|----------------------------------------------------|------------------------------------------------------------------------------------|
| Sub-genre: Conduct of Proceedings, Witnesses, etc. | Sub-genre: Conduct of Proceedings, Witnesses, etc.                                 |
| Move 1 Conduct of proceedings, witnesses, etc.     | Move 1 Conduct of proceedings, witnesses, etc.                                     |
| Sub-move 1                                         | Provision in agreement for parties to submit to be examined by arbitrator          |
| Sub-move 2                                         | Provision in agreement for witnesses to be examined on oath or affirmation         |
| Sub-move 3                                         | Power of arbitrator to administer oaths                                            |
| Sub-move 4                                         | Summons to give evidence or produce documents                                      |
| Sub-move 5                                         | High Court issue to bring up prisoner before arbitrator                            |
| Sub-move 6                                         | Power of the High Court                                                            |
| Sub-genre: Provisions as to Awards                 | Sub-genre: Provisions as to Awards                                                 |
| Move 1 Time for making award                       | Move 1 Time for making award                                                       |
| Sub-move 1                                         | Power of arbitrator to make an award                                               |
| Sub-move 2                                         | Order of the High Court to enlarge time                                            |
| Sub-move 3                                         | Removal of arbitrator by the High Court                                            |
| Move 2 Interim awards                              | Move 2 Interim awards                                                              |
| Move 3 Specific Performance                        | Move 3 Specific Performance                                                        |
| Move 4 Awards to be final                          | Move 4 Awards to be final                                                          |
| Move 5 Power to correct slips                      | Move 5 Power to correct slips                                                      |
| Sub-genre: Costs, Fees and Interest                | Sub-genre: Costs, Fees and Interest                                                |
| Move 1 Costs                                       | Move 1 Costs                                                                       |
| Sub-move 1                                         | Provision in agreement that the costs shall be in the discretion of the arbitrator |
| Sub-move 2                                         | Costs taxable in the High Court                                                    |
| Sub-move 3                                         | Provision in agreement that parties pay their own costs                            |
| Sub-move 4                                         | Application to the arbitrator for an order on payment                              |

| Move 2 Taxation of arbitrator's or umpire's fees                                                                      | Move 2 Taxation of arbitrator's or umpire's fees                                                                      |
|-----------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------------------------------|
| Sub-move 1                                                                                                            | Order of the High Court that the arbitrator shall deliver the award                                                   |
| Sub-move 2                                                                                                            | Application for the purposes of this section                                                                          |
| Sub-move 3                                                                                                            | Review of taxation fees                                                                                               |
| Sub-move 4                                                                                                            | Entitlement of the arbitrator to appear on any taxation review                                                        |
| Move 3 Interest on awards                                                                                             | Move 3 Interest on awards                                                                                             |
| Sub-genre: Special Cases, Remission and Setting Aside of Awards, etc.                                                 | Sub-genre: Special Cases, Remission and Setting Aside of Awards, etc.                                                 |
| Move 1 Statement of case                                                                                              | Move 1 Statement of case                                                                                              |
| Sub-move 1                                                                                                            | Statement of question of law or award by arbitrator                                                                   |
| Sub-move 2                                                                                                            | Special case with respect to an interim award                                                                         |
| Sub-move 3                                                                                                            | Decision of the High Court deemed to be judgement of the High Court                                                   |
| Move 2 Power to remit award                                                                                           | Move 2 Power to remit award                                                                                           |
| Sub-move 1                                                                                                            | Remittance of matters by High Court to arbitrator                                                                     |
| Sub-move 2                                                                                                            | Award to be made within three months by arbitrator                                                                    |
| Move 3 Removal of arbitrator and setting aside of award                                                               | Move 3 Removal of arbitrator and setting aside of award                                                               |
| Sub-move 1                                                                                                            | Removal of arbitrator who has misconducted himself by High Court                                                      |
| Sub-move 2                                                                                                            | Setting aside of award by High Court when arbitrator has misconducted himself                                         |
| Sub-move 3                                                                                                            | Order by High Court that money payable shall be brought to court                                                      |
| Move 4 Power of High Court to give relief where arbitrator is not impartial or the dispute involves question of fraud | Move 4 Power of High Court to give relief where arbitrator is not impartial or the dispute involves question of fraud |
| Sub-move 1                                                                                                            | Application of a party to revoke authority of impartial arbitrator                                                    |
| Sub-move 2                                                                                                            | Power of High Court to revoke authority of arbitrator                                                                 |
| Sub-move 3                                                                                                            | Refusal of high Court to stay an action                                                                               |

- Move 5  Power of High Court where arbitrator is removed or authority of arbitrator is revoked.
- Sub-move  1  Appointment  of  a  person  to  act  as  arbitrator  by  High Court
- Sub-move 2   Appointment of a person by High Court to act as arbitrator in place of the arbitrator who has been removed
- Sub-move 3   Power of appointed person
- Sub-move 4   Order  of  High  Court  that  provision  regarding  award ceases to have effect

Sub-genre: Enforcement of Award

Move 1  Enforcement of award

Move 2  Power of High Court to extend time for commencing arbitration proceedings

- Move 3  Terms as to costs, etc.

Move 4  Government to be bound

Move 5  Rules of court

Move 6  Application of Act to statutory arbitrations

Move 7  Application of Act

Move 8  Act not to apply to certain arbitrations

- Sub-move 1   Non application of this act to certain arbitration
- Sub-move 2   Enforcement  proceedings  of  award  in  accordance  with certain Conventions or Rules
- Sub-move 3   High Court the competent court for such enforcement

## 5. Communicative Purpose

MAA is intended to regulate the conduct of arbitration in Malaysia in general although there are other statutes which provide for certain disputes referred to arbitration. The Act applies to every arbitration under any written law. The scope is further provided in Section 34 which states that the Act does not apply to arbitration held under the United Nations Commission on International Trade Law Arbitration Rules 1976 and the Rules of the Regional Centre for Arbitration at Kuala Lumpur.

## 6. Aspects of Content of the Malaysian Arbitration Act

Some  of  the  differences  in  the  presented  content  of  the  Malaysian Arbitration  Act  as  compared  to  the  Model  Law  are  discussed  in this section.  For example, the defi  nitions found in the Acts, and the composition  of  the  arbitral  tribunal.  Also,  the  concept  of  Umpire, which is not found in the Model Law, and the conditions specifi  ed for failure of the arbitrator to act, which are rather detailed in the Malaysian Arbitration Act, will be founded upon.

## Defi  nitions

In Article 2 of ML, three defi  nitions are given to explain: arbitration, arbitral tribunal and court together with rules of interpretation.

- (a) 'arbitration' means any arbitration whether or not administered by a permanent arbitral institution;
- (b) 'arbitral  tribunal'  means  a  sole  arbitrator  or  a  panel  of  arbitrators;
- (c) 'court' means a body or organ of the judicial system of a State;

Precise  means  by  which  written  communications  are  to  be  sent  and re  ceived  are  provided  in  ML.  'Receipt  of  written  communication' in Article 3 is deemed to have taken place 'if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address … if it is sent to the addressee's last-known place of busi  ness, habitual residence or mailing address by registered letter or any other means which provide a record of the attempt to deliver it … the communication is deemed to have been received on the day it is so delivered'. Precise means of communication is not found in MAA.

In MAA, 'arbitration' is not defi  ned and neither is 'arbitral tribunal'. There are two sections, 'short title' and 'interpretation' in the fi  rst part called 'Preliminary'. The fi  rst cites the name of the Act which is the Arbi  tration Act, 1952, and the second, 'Interpretation', provides defi  ni- tions for 'arbitration agreement', and 'commencement of this Act' and 'High Court'. The defi  nitions are as follows:

-  'arbitration agreement' means a written agreement to submit present or  future  differences  to  arbitration,  whether  an  arbitrator  is  named therein or not;
-  'commencement of this Act' in respect of Sarawak means the 18 th June, 1952, and in respect of the other States the 1 st  November, 1972;
-  'High Court' means the High Court in Malaysia or the High Court in Borneo, as the case may require.

The defi  nition of an arbitration agreement in the MAA is rather general as compared to that in ML. There is no specifi  c form of an arbitration agreement given. What is specifi  ed clearly is that it should be in writing, which means that an oral agreement is not valid. However, there are no specifi  cations of what a written agreement means. There is no mention that the agreement be signed by the parties concerned, indicating that signing of the agreement is not a condition for validity. This implies that the arbitration clause may be found in a document that is not signed by one of the parties. It will, nevertheless, be valid and binding on the parties involved.

'Commencement  of  this  Act'  is  provided  since  there  exist  two different  times  for  this  -  1952  for  Sarawak  and  1972  for  the  other states in Malaysia. A look at history reveals that prior to 1972, when the current Act was implemented for the whole of Malaysia, there existed different arbitration laws in the different states. In Johore, the statute in force was Arbitration Enactment No. 43 and in Kedah it was Enactment No. 6 (Arbitration in Sarawak,  Ordinance No. 5 of 1952 was in force starting from 18 th  of June 1952 and has remained since. Sabah had its own law for arbitration proceedings. By 1972, the Ordinance of 1952, already governing arbitration proceedings in Sarawak, and revised by the laws of Malaysia Act, No. 93, was introduced in all the States other than Sarawak.

'High Court' is defi  ned in MAA due to the local system which has two courts, in Malaysia and Borneo. The High Court in Malaysia has a range of powers under the Arbitration Act of 1952 involving different aspects of arbitration.

## Composition of Arbitral Tribunal

With regard to the composition of the Arbitral Tribunal, both ML and MAA give the number of arbitrators allowed, explain who may be an arbitrator  and  outline  the  procedures  that  have  to  be  followed  in  appointing and substituting arbitrators.

In ML, article 10 provides that the parties are free to determine the number of arbitrators and that failing such determination, the number shall be three. On the other hand, in the MAA, Section 8 states that 'un  less a contrary intention is expressed therein, every arbitration agreement shall, if no other mode of reference is provided, be deemed to include a provision that the reference shall be to a single arbitrator'.

Sections  8  to  12  of  MAA  provide  details  of  the  appointment  of arbitrators and umpires. The provisions show that the parties are given the  liberty  to  decide  on  the  mode  of  appointment  of  arbitrators  and umpires. However, when the arbitration agreement is lacking in certain respects,  the  statutory  provisions  intervene  to  provide  the  necessary input.  Section  8  states  that  'every  arbitration  agreement,  shall,  if  no other mode of reference is provided, be deemed to include a provision that the reference shall be to a single arbitrator'.

The parties under MAA may choose to appoint two arbitrators, one to be appointed by each party. According to Section 10, where reference is to two arbitrators, the two arbitrators shall appoint an umpire as soon as  they  themselves  have  been  appointed.  The  number  of  arbitrators allow  ed under MAA is one to three. Included are also conditions specifying when a third arbitrator is allowed and when an alternative arbitrator is to be appointed. Section 11(1) states that the third person to be appointed is an umpire and not another arbitrator.

Section 3 provides that the authority of an arbitrator or an umpire appointed by the parties to an arbitration agreement is irrevocable. This authority can only be revoked with consent of the High Court.

Concerning who may be arbitrators, in ML, it is stated that nationality does not affect a person's chances of appointment and that the parties are free to agree on a procedure of appointing arbitrators. Nationality is not mentioned in MAA. In fact, in MAA, the qualifi  cations required for a person to be appointed are not included. The parties are free to decide on a person of their choice to be appointed as an arbitrator.

Section 9 of MAA provides for power of parties to supply vacancy in certain cases. If reference is made to two arbitrators, one to be appointed by each party, in the event that either of the arbitrators is refusing to act, or is incapable of acting, or dies, the party who appointed him may appoint an arbitrator for twenty-one clear days of notice received from the party who has appointed the arbitrator. In the event of default on the part of the fi  rst mentioned party, the party who has appointed an arbitrator may appoint that arbitrator to act as the sole arbitrator. It is subject to the power of the High Court to set aside the appointment of the arbitrator in pursuance of this section.

In  general,  the  High  Court  has  the  powers  with  regard  to  certain issues in connection with arbitrators and umpires. The powers include the appointment of arbitrators and umpires (Sections 9-12), revocation of  their  authority  (Section  3),  appointment  of  a  substitute    arbitrator (Section  26),  provision  for  extension  of  time  for  making  an  award (Section 14).

In MAA, it is provided that the parties can have three arbitrators. However, Section 11 (1) states that if the arbitration agreement provides that of the three arbitrators, two are appointed one each by the parties, the third is to be appointed by the two arbitrators. The third person to be appointed is the umpire and not another arbitrator.

Conditions  specifying  when  the  High  Court  can  intervene  in  the appointment  of  an  arbitrator  or  umpire  are  provided  in  Section  12 of  MAA. The conditions in MAA are more detailed that that in ML (Article 11(4)), indicating the infl  uence of the Courts on the arbitration system in Malaysia.

ML contains the sections on 'grounds for challenge' and 'challenge procedure'  stating  that  an  arbitrator  may  be  challenged  if  there  are justifi  able doubts as to his impartiality or independence, or if he does not possess qualifi  cations agreed to by the parties. MAA does not have this provision. In fact, it is not stated that any particular qualifi  cations are required for a person to be appointed as an arbitrator.

## 7. Aspects of Language in the MAA

In this section, the powers of the High Court in the different aspects of  arbitration  will  be  focused  on.  The  High  Court  has  a  wide  range of powers under the Arbitration Act of 1952. From an examination of the Act, it can be observed that the discretionary powers of the High Court are referred to the most in matters pertaining to the stay of court proceedings where there is an arbitration agreement between the parties to an action to enable a dispute to be referred to arbitration.

The High Court has powers with regard to the appointment of arbitrators and umpires, revocation of their authority, to grant extension of time for the making of an award by the arbitrator, to enforce, remit back to the arbitrator or to set aside an award under certain circum  stances, to give relief where the arbitrator is not impartial or when the dispute between  the  parties  involves  a  question  of  fraud,  to  make  orders  in respect of costs, fees and interest in arbitration matters. Almost all of the powers of the High Court are discretionary as an analysis of the language will show.

Section  6  Power  to  stay  proceedings  where  there  is  submission  to arbitration.

If  any  party  to  an  arbitration  agreement  or  any  person  claiming through or under him commences any legal proceedings against any other party to the arbitration, or any person claiming through or under him, in respect of any matter agreed to be referred to arbitration, any party to the legal proceedings may, before taking any other steps in the proceedings, apply to the court to stay the proceedings, and the court, if  satisfi  ed  that  there  is  no  suffi  cient  reason  why  the  matter  should not be referred in accordance with the arbitration agreement, and that the applicant was at the time when the proceedings were commenced and still remains ready and willing to do all things necessary to the proper  conduct  of  the  arbitration,  may  make  an  order  staying  the proceedings.

Section 6 of the Act enables the High Court to grant stay of all proceed  ings  before it in any action initiated by a party to arbitration on an application by a party seeking to have the dispute resolved through arbitration. The word may shows that despite all the stated conditions being satisfi  ed, the power is still with the High Court to order a stay of all proceedings before it is a matter of discretion.

The following requirements of section 6 must be satisfactorily met for the court to decide whether to grant or refuse the application:

1. there was an agreement between the parties and the agreement contained an arbitration clause;

2. that the applicant had not taken any other steps in the proceedings;
3. there must be suffi  cient reason why the matter should not be refer  red in accordance with the arbitration agreement; and
4. that the applicant was at the time when the proceedings were commenced still ready and willing to do all things necessary to the proper conduct of the arbitration.

The requirements are given as qualifi  cations in the form of adverbial phrases and may cause a syntactic discontinuity:

```
in respect of any matter agreed to be referred to arbitration before taking any steps in the proceedings if satisfi  ed that there is no suffi  cient reason why the matter should not be  referred  in  accordance  with  the  arbitration  agreement,….proper conduct of the arbitration
```

The language of section 6 places the burden on the plaintiff to show that the dispute ought not to be referred to arbitration. The adverbial phrase 'in respect of any matter agreed to be referred to arbitration' shows that there must be a dispute that falls within an arbitration clause before any question of stay can arise.

Section 12 Power of High Court in certain cases to appoint an arbi  trator or umpire.

In any of the following cases:

- (a)  where an arbitration agreement provides that the reference shall be to a single arbitrator, and all the parties do not, after differences have arisen, concur in the appointment of an arbitrator;
- (b)  if an appointed arbitrator refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied and the parties do not supply the vacancy;
- (c)  where  the  parties  or  two  arbitrators  are  at  liberty  to  appoint  an umpire or third arbitrator and do not appoint him, or where two arbitrators are required to appoint an umpire and do not appoint him;
- (d)  where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or arbitrators do not supply the vacancy,

any party may serve the other parties or the arbitrators, as the case may be, with written notice to appoint or, as the case may be, concur in  appointing,  an  arbitrator,  umpire  or  third  arbitrator,  and  if  the appointment is not made within twenty-one clear days after the service of the notice, the High Court may, on application by the party who gave the notice, appoint an arbitrator, umpire or third arbitrator, who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties.

The  Move  'Power  of  the  High  Court  in  certain  cases  to  appoint  an arbitrator or umpire' has four sub-moves.

- Sub-move 1   All parties do not concur in the appointment of an arbitrator
- Sub-move 2   Parties do not supply vacancy when arbitrator is incapable of acting
- Sub-move 3   Parties do not appoint an umpire or third arbitrator
- Sub-move 4   Appointed umpire or third arbitrator is incapable of acting

In this move, contingencies whereby the High Court has the power to appoint an arbitrator or umpire are provided. Each of the contingencies in sub-moves 1-4 are given as initial case descriptions with binomial and multinomial expressions that make them all-inclusive and precise.

Section 13 has several references to the powers of the High Court.

Section 13 Conduct of proceedings, witnesses, etc.

- (1)  Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference,  be  deemed  to  contain  a  provision  that  the  parties  to  the ref  er  ence,  and  all  persons  claiming  through  them  respectively, shall,  subject  to  any  legal  objection,  submit  to  be  examined  by the arbitrator or umpire on oath or affi  rmation, in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrator or umpire all documents within their possession or power respectively which may be required or called for, and do all other things which, during the proceedings on the reference, the arbitrator or umpire may require.
- (2)  Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the witnesses on the reference shall, if the arbitrator or umpire thinks fi  t, be examined on oath or affi  rmation.

- (3)  An arbitrator or umpire shall, unless a contrary intention is express  ed  in  the  arbitration  agreement,  have  power  to  administer oaths to, or take the affi  rmations of, the parties to, and witnesses on, a reference under the agreement.
- (4)  Any party to a reference under an arbitration agreement may take out a summons to give evidence or to produce documents, but no person shall be compelled under any such summons to produce any document which he could not be compelled to produce on the trial of an action, and the High Court may order that a summons to give evidence or produce documents shall issue to compel the attendance before an arbitrator or umpire of a witness wherever he may be within Malaysia.
- (5)  The High Court may also issue an order to bring up a prisoner for examination before any arbitrator or umpire.
- (6)  The High Court shall have, for the purpose of and in relation to a refe  rence, the same power of making orders in respect of-
5. (a)  security of costs;
6. (b)  discovery of documents and interrogatories;
7. (c)  the giving of evidence by affi  davit;
8. (d)  examination on oath of any witness before an offi  cer of the High Court or any other person, and the issue of a commission or request for the examination of a witness out of the jurisdiction;
9. (e)  the preservation, interim custody or sale of any goods which are the subject matter of the reference;
10. (f)  securing the amount in dispute in the reference;
11. (g)  the detention, preservation or inspection of any property or thing which is the subject of the reference, or as to which any question may arise therein, and authorizing for any of the purposes aforesaid  any  persons  to  enter  upon  or  into  any  land  or  building  in the possession of any party to the reference, or authorizing any samples to be taken or any observation to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; and
12. (h)  interim injunctions or the appointment of a receiver,

as it has for the purpose of and in relation to an action or matter in the High Court:

Provided that nothing in this subsection shall be taken to prejudice any power which may be vested in an arbitrator or umpire of making orders with respect to any of the matters aforesaid.

This move has 6 sub-moves with 4-6 referring to the powers of the High Court:

| Move 1:    | Conduct of proceedings, witnesses, etc.                                                                                                                 |
|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------|
| Sub-move 1 | Parties to submit to be examined by the arbitrator or umpire and produce documents required                                                             |
| Sub-move 2 | Witnesses to be examined on oath or affirmation if arbitrator or umpire thinks fit                                                                      |
| Sub-move 3 | Power of arbitrator or umpire to administer oaths to, or to take the affirmations of parties and witnesses                                              |
| Sub-move 4 | High Court order to compel attendance before arbitrator or umpire                                                                                       |
| Sub-move 5 | High Court order to bring a prisoner for examination before an arbitrator or umpire                                                                     |
| Sub-move 6 | High Court order in respect for costs, discovery of documents and interrogatories, the giving of evidence of affidavit, examination of oaths and others |

Sub-move 1 states the power of the arbitrator to examine the parties in an arbitration agreement and to request for documents that are required in the arbitration proceedings. It begins with an adverbial clause Unless a  contrary  intention  is  expressed  therein and  qualifi  cations  inserted with  in the verb phrases every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain…, shall, subject  to  any  legal  objection,  submit  to  be  examined,  shall,  subject as  aforesaid,  produce  before  the  arbitrator restrict  the  extent  of  the power of the arbitrator or umpire. The extent of the power is not clearly stated as it provides that the parties must also do all other things which, dur  ing the proceedings on the reference, the arbitrator or umpire may require .

Another device found is the use of binomial expressions: arbitrator or  umpire,  an  oath  or  affi  rmation,  within  their  possession  or  power, which may be required or called for .

Sub-move 2 states that every arbitration agreement shall also be deemed to contain a provision that the witnesses on the references shall be examined on oath or affi  rmation if the arbitrator or umpire thinks fi  t. It begins with an adverbial clause Unless a contrary intention is expressed therein and qualifi  cations inserted within verb phrases shall, if the arbi- trator or umpires thinks fi  t, be examined on oath or affi  rmation. It also contains  the  binomial  expression :  arbitrator  or  umpire,  on  oath  or affi  rmation .

In sub-move 3, unless a contrary intention is expressed in the arbitra  tion agreement, the arbitrator or umpire has the power to administer oaths to, or take the affi  rmations of, the parties to, and witnesses on, a reference under the agreement. There is a qualifi  cation inserted within the verb phrase, restricting the power of the arbitrator or umpire, shall, unless a contrary intention is expressed in the arbitration agreement, have power to administer…

Sub-moves 4-6 deal specifi  cally with the powers of the High Court in relation to the conduct of the arbitration proceedings and its power to deliver certain orders.

Sub-move  4  provides  that  a  party  to  a  reference  may  take  out  a sum  mons to give evidence or to produce document, but that no person shall be compelled under any such summons to produce any document which he could not be compelled to produce on the trial of an action. However, the High Court may order that a summons to give evidence or produce documents shall be issued to compel the attendance before an arbitrator or umpire of a witness wherever he may be within Malaysia. This provision seems unclear in its statement that a party may take out a summons to give evidence or to produce documents but that no person shall  be  compelled to produce any document which he could not be compelled to produce on the trial of an action. The use of may shows that it is at the discretion of the High Court to order that a summons to a witness to give evidence or produce documents shall issue to compel attendance before an arbitrator or umpire.

The High Court may also intervene, according to sub-move 5, to issue a order to bring up a prisoner for examination before any arbi  trator or umpire.

Sub-move 6 provides the other orders that the High Court has. A qual  ifi  cation is inserted within the verb phrase to give precision to the powers of the High Court: shall have, for the purpose of and in relation to a reference, the same power…

Two qualifi  cations are placed at the end to make the provision very clear: as it has for the purpose of and in relation to an action or matter in the High Court; and Provided that nothing in this subsection shall be taken to prejudice any power which may be vested in an arbitrator or umpire of making orders with respect to any of the matters aforesaid.

In the list of specifi  c powers of the High Court, a number of binomial and multinomial expressions are found:

documents and interrogatories before an offi  cer of the High Court or any other person issue of a commission or request the preservation, interim custody or sale of any goods the detention, preservation or inspection of any property or thing to enter upon or into any land or building any samples to be taken or any observation to be made or experiment to be tried necessary or expedient full information or evidence interim injunctions or the appointment of a receiver

Section 23 also contains the High Court's wide discretion of power.

23. Power to remit award
- (1) In all cases of reference to arbitration, the High Court may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrator or umpire.
- (2) Where an award is remitted, the arbitrator or umpire shall, unless the order otherwise directs, make his award within three months after the date of the order.
24. Removal of arbitrator and setting aside of award
- (1)  Where an arbitrator or umpire has misconducted himself or the pro  ceedings, the High Court may remove him.
- (2) Where an arbitrator or umpire has misconducted himself or the proceedings, or an arbitration or award has been improperly procur  ed, the High Court may set the award aside.
- (3)  Where  an  application  is  made  to  set  aside  an  award,  the  High Court may order that any money made payable by the award shall be brought into court or otherwise secured pending the deter  mi  nation of the application.

Section 23 appears to confer a wide discretion of power to the court to remit an award. However, the power of the court to set aside an award is not unlimited and section 24 (2) provides that the High Court may set aside an award only where an arbitrator or umpire has misconducted him  self or the proceedings or that the award had been improperly pro- cur  ed.  This  means  that  the  power  of  the  High  Court  to  set  aside  an award is restricted to cases when some form of unjustness or biasness is in  volved, although the word 'misconducted' has a broad meaning.

## 8. Conclusion

This paper has focused on a specifi  c and limited area of law, that is, the Malaysian Arbitration Act. It examines some aspects of content in the MAA as compared to that in the ML such as the differences in the defi  nitions given and the differences in requirements for the appointment of arbitrators. The concept of Umpire which is not found in the ML is present in the MAA and the conditions specifi  ed for failure of the arbitrator to act is rather detailed in the MAA. The linguistic ana  lysis of the MAA indicates the wide range of the powers of the High Court involving different aspects of arbitration, vagueness in the qual  i  fi  cations required for the appointment of arbitrators and the dis  cre  tionary power of  the  High  Court  through  the  use  of  adverbials  and  binomial  and multinomial expressions. Some differences in terms of specifi  city and lack  of  adequate  specifi  cation  and  differences  in  legal  systems  and procedures are discussed. The analysis does show that the content and language used are infl  uenced by national requirements and concerns, culture, legal system and other constraints.

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