The apex court noted that the AIAC was established in 1978 as an independent and supranational arbitral institution under the auspices of the then Asian-African Legal Consultative Committee, now known as the Asian–African Legal Consultative Organization (AALCO).
Justice Hanipah Farikullah said the government had accorded the AIAC certain privileges and immunities under the International Organizations (Privileges and Immunities) Act 1992 (IOPIA) to execute its functions as an independent international organisation.
She said the reasoning adopted by the Court of Appeal — that the immunity conferred on the AIAC under the IOPIA was only intended to cover functions of an “international” character and was therefore not applicable to “domestic” functions such as statutory adjudication — was untenable.
Hanipah said the AIAC was not established unilaterally by the Malaysian government but through a bilateral host country agreement between the AALCO and Putrajaya.
“Any delegation of authority to the AIAC under CIPAA must have been done in consultation with AALCO. As such, there is implied consent by AALCO to the exercise of AIAC’s functions under the CIPAA,” she said in a 74-page judgment in allowing AIAC’s appeal last week.
The apex court ruled that there was no necessity to distinguish between the capacity of the AIAC either as an international arbitration institution or the statutory adjudication authority before the AIAC is entitled to enjoy the immunity conferred under the IOPIA and the CIPAA.
“We are satisfied that the AIAC had acted within its scope of functions as prescribed under the CIPAA and is therefore immune in the exercise of such functions against any proceedings,” she said.
Also on the Federal Court bench which unanimously restored a 2019 High Court ruling was Court of Appeal President Abang Iskandar Abang Hashim and Justice Abu Bakar Jais.
No order for costs was made as the appeal was in respect of a public interest matter.
Developer One Amerin Residence Sdn Bhd had commenced a judicial review in the High Court to challenge certain acts carried out by the AIAC in the performance of its functions as the statutory adjudication authority designated under the CIPAA, including in relation to the appointment of an adjudicator.
Other respondents named in the suit were Choon Hon Leng, the AIAC-appointed adjudicator, contractor Ragawang Corporation Sdn Bhd, the works minister and the law and institutional reform minister.
The AIAC had moved to strike out One Amerin’s judicial review application, asserting that, as an international organisation, it was cloaked with immunity from any court proceedings under the IOPIA and Section 34 of the CIPAA.
Section 34 provides that no action or suit shall be instituted or maintained in any court against an adjudicator or the AIAC or its officers for any act or omission done in good faith in the performance of his or its functions under the act.
The High Court allowed the application and struck out the judicial review application, ruling that there were no qualifications attached to the immunities and privileges conferred on the AIAC under the IOPIA.
One Amerin succeeded in its appeal to the Court of Appeal, giving rise to the present appeal.
Lawyers N Sivabalah, Jamie Goh and T Sachin Niranjan represented the AIAC, while Teh Eng Lay, Andy Gan and Vanessa Thong appeared for One Amerin.
Lawyer Siew Suet Mey represented Choon, Rosamirah Insyirah Zamri appeared for Ragawang and senior federal counsel Wan Shahida Wan Omar acted for the ministers.