LETTER | In the Asean Bintulu v Wekajaya case, a contractor initiated arbitral proceedings against the employer in 2003. After protracted proceedings, the last submission of the parties was made in 2009. Only some four years further later, the arbitrator handed down his award in 2014. The total time span of the arbitral proceedings was 10 years.

The award was in favour of the contractor. It included a pre-award interest that came to about RM11 million. Being unhappy with the award, the employer applied to set aside the award, among others, on public policy ground premised on the four-year delay.

This was an ad hoc arbitration and hence KLRCA (Kuala Lumpur Regional Centre for Arbitration) rules did not apply. Had it applied, then the obligation would have been on the arbitrator to produce a draft award to the director of KLRCA within three months after the last submission (then Rule 11[1]).

The High Court refused to set aside the award because the four-year delay per se did not accord a public policy ground.

However, the court expressed dissatisfaction with the conduct of the arbitrator in so delaying by saying that it was "certainly not in the public interest for an arbitrator to have delayed four years in handling down his award" and that "inordinate delay [...] does not augur well for the arbitration regime where both speed and finality have been touted as its unassailable advantage".

It cautioned that such delay "does not engender confidence in the system and on the contrary, it undermines faith in the system".

To that, the court added that "there is a very real danger that with the passage of time, the memory may fade and with that impression made on one's mind by the witness." With that, it reminded "duty of the arbitrator to hand down his award within a reasonable time after the submissions".

The court reiterated that "no courts would condone such a protracted delay".

The strong dissent of the court to the conduct of the arbitrator was expressed in its saying "thankfully no similar cases have come before our courts and hopefully this would be the last one."

The court reminded that "one of the main reasons for promoting and preferring arbitration to litigation is speed of disposal", and hence "to continue to support arbitration [...] the arbitrator chosen, must act timeously with a sense of urgency, such that a final award is handed down within a reasonable time".

The Court of Appeal, in effect, agreed with the High Court.

The arbitrator in Asean Bintulu, whose conduct was reprimanded by the courts, was the director of KLRCA now, (Asian International Arbitration Centre) AIAC. The judgments in Asean Bintulu, both at the High Court and Court of Appeal, were reported in law journals.

This brings, in the absence of an explanation from the director or result of an investigation by the relevant authority, the integrity of AIAC into question. Quite surprisingly, the stakeholders including the arbitral community do not seem to be so concerned about this.

The question and concern raised is a serious one because the position of the "director" of AIAC is one that demands a uniquely high standard of integrity for reasons stated below.

AIAC is a foreign institution that has been conferred various functions and privileges by Arbitration Act and Construction Industry Payment and Adjudication Act. It plays an important role in the administration of justice in our country and hence, access to justice guaranteed in Articles 5 and 8 of the Federal Consitution, as particularly it exclusively administers adjudication.

The two Acts have directly conferred powers on the "director" largely without any check-and-balance or safeguard built in. They have placed AIAC in a zone where it collects statutory revenue from the Malaysian public who come for arbitration/adjudication before it under the statutory regimes.

Added to the above, AIAC rules require arbitrations under the AIAC rules to be so expeditiously conducted and completed that the final award in the draft should be produced to the director within three months of last submission (subject to certain provisos).

It is hoped that the relevant authorities and stakeholders will study the Asean Bintulu case and its impact to do the needful. The above are my views and thoughts about those matters, others may perfectly have differing views.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.