Contributed By Malik Imtiaz Sarwar
Dato’ Malik Imtiaz Sarwar is one of Malaysia's leading advocates. With more than 20 years experience as a litigator and about 200 reported decisions in a diverse range of practice areas to his credit, he has firmly established himself as a point of reference in dispute resolution. Regularly consulted and briefed as counsel in high value and complex litigation in civil, commercial, administrative and constitutional law matters, he is a familiar presence in the appellate courts, the High Court and the arbitration circuit. Imtiaz read law at the International Islamic University, has an LLM from the University of Hong Kong and a Masters in Studies in International Human Rights Law from Oxford University.
Malik Imtiaz Sarwar was established in 1997 and has come to be recognised as a leading dispute resolution practice that fearlessly advocates its clients’ interests, and the Rule of Law. Known for its professionalism and effectiveness, it is regularly consulted and briefed in a diverse range of practice areas. It also contributes to the development of the law through pro-bono work in matters of legal significance, the publication of scholarly work and socio-legal commentary, continuing professional development.
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The AA 2005 does not contain any provision on confidentiality. The AA 2005 defines “agreement” by reference to the adaptation of the arbitration rules. Rule 15 of the KLRCA Rules provides that all matters relating to the arbitral proceedings must be kept confidential. The phrase “matters relating to the arbitral proceedings” means the existence of the proceedings and the pleadings, evidence and other materials in the arbitral proceedings and all other documents produced by another party in the proceedings or the award arising from the proceedings, but excludes any matter that is otherwise in the public domain. The exception to this rule is where disclosure is necessary for purpose of implementation and enforcement or to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to challenge an award in bona fide legal proceedings before a state court or other judicial authority.
A question arises as to whether there is such duty where no such agreement exists. The Malaysian courts have taken the approach that it is the policy of the AA 2005 to maintain confidentiality, and that such duty could be implied from the very nature of the arbitral process itself; see Petronas Penapisan (Melaka) Sdn Bhd v Ahmani Sdn Bhd (2016) 2 MLJ 697, and Malaysian Newsprint Industries Sdn Bhd v Bechtel International, Inc & Anor (2008) 5 MLJ 254. The extent of confidentiality or the scope of the same has not been seriously considered by the Malaysian courts as yet.