Wednesday, December 26, 2018

Asian International Arbitration Centre is a Malaysian entity, its directors have no immunity from Malaysian or other laws.

by Ganesh Sahathevan

The Edge reported:
Professor Dr Sundra Rajoo has resigned as director of the Asian International Arbitration Centre (AIAC) following a Malaysian Anti-Corruption Commission (MACC) investigation into his alleged misconduct including the use of public funds to influence ministers to get his term extended.
Sundra spent a night at the MACC lock-up but was released yesterday after Putrajaya magistrate Khir Nizam denied the graft busters a seven-day remand application and ruled they had no jurisdiction to detain him as he was protected under the International Organisations (Privileges and Immunities) Act 1992 (Act 485).
Moreover, his lawyer Philip Koh said he was protected under the Diplomatic Privileges (Vienna Convention) Act 1966. “He is no longer under arrest or remand. The judge agreed that Sundra Rajoo is protected under the International Organisation Act and is not liable for any form of arrest under diplomatic privileges ... he is released without any condition.”

The AIAC however is a local Malaysian creation:
Laws of Malaysia Act 646 
Arbitration Act 2005 
An Act to reform the law relating to domestic arbitration, provide for international arbitration, the recognition and enforcement of awards and for related matters.
According to Section 3(1) of the Arbitration (Amendment) Act 2018 [Act A1563] and the Ministers’ appointment of the date of coming into operation, gazetted on 27th February 2018, the name of Kuala Lumpur Regional Centre for Arbitration (the “KLRCA”) was changed to the Asian International Arbitration Centre (Malaysia) (the “AIAC”) starting from 28th February 2018. Any reference to the KLRCA in Arbitration Act 2005 (as amended in 2011) published by the KLRCA, in any written law or in any instrument, deed, title, document, bond, agreement or working arrangement shall, after the 28th February 2018, be construed as a reference to the AIAC. All approvals, directions, notices, guidelines, circulars, guidance notes, practice notes, rulings, decision, notifications, exemptions and other executive acts, howsoever called, given or made by the KLRCA before 28th February 2018, shall continue to remain in full force and effect, until amended, replaced, rescinded or revoked.

As for immunity ,this is all the immunity that its officers have:
48. Immunity of Arbitral Institutions The Director of the Kuala Lumpur Regional Centre for Arbitration or any other person or institution designated or requested by the parties to appoint or nominate an arbitrator, shall not be liable for anything done or omitted in the discharge of the function unless the act or omission is shown to have been in bad faith.

The Diplomatic Privileges (Vienna Convention) Act 1966 has no application, and even if  it does it is overruled by the specific  provisions of the later and specific provisions of the 
The good professor and the other directors are not immune from anything.

Mr. Vinayak Pradhan

Vinayak Pradhan was appointed as Acting Director of the Asian International Arbitration Centre (AIAC) on 21st November 2018. He is a Consultant with SKRINE, an Associate Member of Littleton Chambers, London and is on the panels of Conciliators and Arbitrators of ICSID, a Member of the Permanent Court of Arbitration and of the Court of Arbitration for Sport. Vinayak is currently Vice Chair of the ICC Commission on Arbitration.
Vinayak is a Fellow of the Chartered Institute of Arbitrators, a Fellow of the Malaysian Institute of Arbitrators and a Fellow of the Australian Centre for International Commercial Arbitration.
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The Advisory Board advises AIAC on its strategic direction in its aim to be the preferred arbitration centre in the Asia Pacific region as well as in positioning Malaysia as an arbitration-friendly destination.
The Chairman of the Advisory Board is by convention the Attorney General of Malaysia.The Board consists of renowned and respected Malaysian and international arbitrators. They are Professor Philip Yang, Honorary Chairman of the Hong Kong International Arbitration Centre,YBhg Tan Sri Dato' Cecil Abraham, Senior Partner, Cecil Abraham & Partners; Mr Sumeet Kachwaha, Partner, Messrs Kachwaha & Partners, India,Mr Vinayak P Pradhan, Consultant, SKRINE,Professor Robert Volterra, Messrs Volterra Fietta, UK.
Professor Robert Volterra, United Kingdom

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