6 October 2025
Our Partners, T. Kuhendran, Susan Tan Shu Shuen and Koh Shien Lin together with Associate Siew Kai Hwei from our Construction Dispute Resolution Practice Group, successfully secured a win for the respondent in the Court of Appeal, which affirmed the High Court’s decisions to enforce the Final Award and dismiss the setting aside application. Read more about the High Court’s decisions here.
Brief Background
The dispute arose from a construction project where the parties entered into seven mutual agreements to extend completion dates. The appellant later challenged the validity of the 6th and 7th mutual agreements, alleging they were conditional upon the completion of certain works which the respondent had failed to fulfil.
The Appeal
On appeal, the appellant contended that the High Court erred in enforcing the Final Award, arguing that the Arbitrator had acted in breach of natural justice by:
(a) purportedly failed to consider an oral admission purportedly made by the respondent’s witness during the arbitral hearing (“Purported Admission”) as there is no specific reference to the Purported Admission in the Final Award. The crux of the contention was that the Purported Admission is essentially that the 6th and 7th agreements were conditional and the conditions were not fulfilled. This was a key and material evidential issue that the Arbitrator failed to make express reference, engage and consider in the Final Award. As a result, the outcome of the Final Award was said to have been materially affected, since the Purported Admission would, in the ordinary course, have led to an award in the appellant’s favour.
(b) purportedly failed to provide a reasoned analysis in the Final Award with regards the relevance and weight of the Purported Admission; and
(c) making findings that were alleged to be “manifestly incoherent” in light of the Purported Admission.
The Court of Appeal’s Decision
The Court of Appeal unanimously dismissed the appeals, affirming the High Court’s decisions, briefly as follows:
(a) The learned High Court Judge did not err in allowing the enforcement of the Final Award and dismissing the appellant’s setting aside application. The Arbitrator considered all issues, in particular the essential issue of whether the completion of works affected the validity of the 6th and 7th mutual agreements.
(b) Although the Final Award did not expressly refer to the Purported Admission, the High Court Judge was correct in finding that the Arbitrator had considered all arguments and evidence presented by both parties, which necessarily included the Purported Admission.
(c) The appellant’s submissions were, in substance, an attempt to challenge the merits of the Final Award under the guise of natural justice, which is impermissible as the merits are not reviewable in an application to set aside the Final Award.
Key Takeaways
The Court of Appeal’s decision underscores that attempts to re-open the merits of an arbitral award under the guise of natural justice challenges will not be entertained. A single statement or alleged admission will not overturn an award if the arbitrator has already considered the wider evidence and contractual context and dealt with the essential issues as a whole in the award.
For more insight into this area of law, please contact our Partners in the Construction Dispute Resolution Practice Group:
Kuhendran Thanapalasingam
Susan Tan Shu Shuen
Esther Tan
Koh Shien Lin
Please email your details to look@zulrafique.com.my if you would like to subscribe to our Knowledge Centre.
Let’s Connect!
➭ LINKEDIN: Zul Rafique & Partners
➭ INSTAGRAM: @zrplaw