Author: Sundra Rajoo
Special Contributor: Thomas R. Klötzel
(Sweet & Maxwell, 2019)
Why do busy practitioners write articles but so few practitioners write legal textbooks? In the first place, why are there so few who are willing to write even academic articles? Not the marketing updates for busy executives but refereed articles that require a careful analysis of the law. Which require citations to legal sources and reasoned views built upon layers of legal reasoning. The obvious answer is time and commitment. Most practitioners in this part of the world are under pressure to bill and the couple of weeks needed to write a decent refereed article do not, as law firm managers would say, bring enough returns on the investment.
When you consider that a legal textbook is at least 10 times the length of a decent academic article, you begin to see why so few practitioners write books. The length is not all there is. The author of a book cannot be selective about the research that he or she undertakes on the chosen subject. To write a book on a subject is to cover the entire landscape. The writer of an article can choose as few or as many topical issues to focus on. The author of a book must cover all material issues within the subject of the book. Hence, the time commitment and the degree of scholarship required to write a decent book are more than what the number of pages might indicate.
On the other hand, when you hold a weighty tome like the 931-paged book by Datuk Professor Sundra Rajoo in your hands, you know that years of hard work have gone into it.
Prof Rajoo was the former President of the Chartered Institute of Arbitrators (CIArb) and the former Director of the Asian International Arbitration Centre (AIAC), formerly known as the Kuala Lumpur Regional Centre for Arbitration (KLRCA). He knows his subject.
The book has a rather lengthy title: UNCITRAL Model Law & Arbitration Rules, The Arbitration Act 2005 (Amended 2011 & 2018) and the AIAC Arbitration Rules 2018. It does cover the UNCITRAL Model Law, the UNCITRAL Arbitration Rules, the Malaysian Arbitration Act and the AIAC Arbitration Rules 2018, so the title is descriptive of the subject matter in that sense. Nonetheless, some explanation is in order because one might wonder why one book would cover these four distinct subjects.
The bulk of the book is on the Arbitration Act 2005 of Malaysia (as amended in 2011 and 2018) (“the Act”). As the UNCITRAL Model Law on International Commercial Arbitration (including its 2006 revisions) is incorporated into the Act, Prof Rajoo comments on the provisions of the Model Law whenever such provisions appear in the Act.
The book comprises four Parts. Part I provides an overview and introduces the Model Law, the New York Convention and the legislative history of Malaysia as well as the development of ADR (and the AIAC) in Malaysia. Part II is the section-by-section commentary on the Act. Part III is on the AIAC Rules 2018. Part IV comprises Appendices.
While Part I is not lengthy, it is an extremely useful reference on the development of arbitration in Malaysia. Going back to my earlier comment about the difficulty of writing a book, a harried practitioner writing an article may selectively point to a few milestones and give you two pages of high level commentaries. Prof Rajoo has conscientiously set out how the legislation developed over several decades. This takes much more research and fact-checking than his succinct narrative might suggest. It is a very useful reference thanks to his diligence.
Part II is an important work on the Act. As the author points out (at paras. 2.51 to 2.54), the Act is a single statute covering both domestic and international arbitrations (unlike Singapore which still has the Arbitration Act for domestic arbitrations and the International Arbitration Act for international arbitrations). With the 2018 amendments repealing sections 42 and 43 on references to the High Court to determine any question of law arising out of an award, the distinction between domestic and international arbitrations has become less important.
Although Part II is a commentary on the Act, it is also a study of the provisions of the UNCITRAL Model Law which are mirrored in the Act. Part II is replete with references to the travaux preparatoires of the Model Law, decisions from other jurisdictions, academic literature and UNCITRAL case law digests, i.e. CLOUT. The footnote references are a treasure trove of materials for further in-depth study of the point being discussed. This means that readers will find useful materials on arbitration issues which are common to many countries. The discussions on arbitrability under section 4 of the Act are one example where the author casts his net wide in a survey of how this topic is treated in numerous jurisdictions.
As noted by Philip Yang in his Foreword, this book does not take the place of advice from a competent lawyer in a particular jurisdiction as there is only so much that can be referenced in a discussion of the Malaysian position. For example, para. 18.61 referred to the Singapore case of Tan Poh Leng Stanley v Tang Boon Jek Jeffrey [2000] 3 SLR(R) 847 on judicial review of the tribunal’s ruling on its own jurisdiction. At the time this book went to press, the Singapore Court of Appeal’s dicta in PT First Media TBK v Astro Nusantara International BV [2014] 1 SLR 372, at [42] which expressed a different view from Tan Poh Leng Stanley had not yet been considered by the same Court in Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd [2019] 2 SLR 131, at [74]. But the book has provided a good platform to make searching for updates easier.
Part III is written by special contributor Dr Thomas R. Klötzel who is a German Attorney-at-Law. The AIAC Arbitration Rules 2018 consist of the AIAC Rules (Part I) and the UNCITRAL Arbitration Rules (Part II) as modified by the AIAC Rules. Dr Klötzel’s commentary on the AIAC Rules provides a practical quick reference to the questions that may arise under each Rule. He also has brief notes on the UNCITRAL Arbitration Rules, but only where he has something to say from the perspective of Malaysian lex arbitri. Readers looking for a general study of the UNCITRAL Arbitration Rules can consider specialist texts such as Dr Peter Binder’s Analytical Commentary to the UNCITRAL Rules (Sweet & Maxwell, 2013).
Prof Rajoo has written a very useful reference book for us. I know I will be using this book quite a lot and commend it to all who have interest in Malaysian arbitration law and the UNCITRAL Model Law generally.
Reviewed by:
Chan Leng Sun, SC - Essex Court Chambers Duxton