Stay of judicial proceedings: effect of previous award

The arguments presented in Tumpuan Megah Development Sdn Bhd v ING Bank NV and Another [2024] EWHC 2350 (Comm); [2025] 1 Lloyd's Rep 181 were somewhat unusual. The claimant asserted that its judicial claims against the defendants should not be stayed under section 9 of the Arbitration Act 1996 and referred to arbitration in Malaysia because an English arbitral award had determined that the Malaysian arbitration clause did not apply to the dispute.

The English award had a preclusionary effect in Malaysia, thereby rendering the Malaysian arbitration clause inoperative or incapable of being performed within the meaning of section 9(4) of the 1996 Act. Stephen Houseman KC, sitting as a Deputy High Court Judge, had little difficulty in exposing the fallacies in this argument.