Asian International Arbitration Centre v One Amerin Residence Sdn Bhd & Ors and another appeal [2025] 2MLJ 634

Federal Court (Putrajaya)

International Law — Immunities — Immunity from judicial review

1. One Amerin Residence Sdn Bhd (“One Amerin”) appointed Ragawang Corp Sdn Bhd (“Ragawang”) to construct the Amerin Mall and Residence project in Seri Kembangan, Selangor, under a letter of award dated 8 December 2014. The project was subsequently completed.
2. A dispute arose between One Amerin and Ragawang over unpaid sums. Therefore, Ragawang initiated adjudication proceedings under the Construction Industry Payment and Adjudication Act 2012 (CIPAA).
3. The Asian International Arbitration Centre (AIAC), as the adjudication authority, appointed an adjudicator, Choon Hon Leng.
4. One Amerin objected to the appointment of the adjudicator on the grounds that the appointment was invalid and contrary to the provisions of the CIPAA. Subsequently, One Amerin also refused to pay the administrative fees imposed by the AIAC, arguing that it was not obliged to do so since it did not consent to the appointment and questioned the legal authority of the AIAC to impose such fees.
5. While adjudication proceedings were pending, One Amerin filed for judicial review to challenge the adjudicator’s appointment, the validity of the AIAC Rules, and the constitutionality of administrative fees.
6. The High Court struck out the application, citing immunity conferred upon AIAC by the International Organizations (Privileges and Immunities) Act 1992 (IOPIA) and CIPAA.
7. The Court of Appeal reversed the decision of the High Court. Aggrieved, the AIAC appealed to the Federal Court.

1. Whether AIAC’s immunity under the IOPIA applies to actions taken as a statutory adjudication authority under CIPAA?
2. Whether judicial review is excluded by the immunities conferred under the IOPIA and CIPAA?
3. Whether a distinction must be made between AIAC’s role as an international arbitral institution versus its role as a statutory adjudication authority in determining its entitlement to immunity?

(a) The Federal Court answered this question in the affirmative. The Federal Court held –

“The AIAC, in acting as the statutory adjudication authority, was clothed with immunity pursuant to the IOPIA.” (para [93]).

(b) The Federal Court held that the Asian International Arbitration Centre (AIAC) was established under a Host Country Agreement signed between the Government of Malaysia and the Asian-African Legal Consultative Organization (AALCO) in 1981. Pursuant to this, Parliament enacted the International Organizations (Privileges and Immunities) Act 1992 (IOPIA).

(c)  The Federal Court explained –

“Clause 7 of the Host Country Agreement provides functional immunity, while the First Schedule to the IOPIA confers general and unqualified immunity” (paras [75]–[76])

(d) The Federal Court emphasized that AIAC’s statutory functions under the Construction Industry Payment and Adjudication Act 2012 (CIPAA) fall within the scope of immunity granted under the IOPIA.  The Federal Court stated –

“The functions of the AIAC as envisaged under the said agreement extended beyond the mere conduct of arbitration proceedings.” (para [90]).

(e)  Accordingly, the Federal Court concluded that the AIAC’s immunity under the IOPIA does extend to its actions taken in performing statutory adjudication functions under the CIPAA.

(2)  Whether judicial review is excluded by the immunities conferred under the IOPIA and CIPAA?

(a) The Federal Court answered this question in the affirmative. The Court held –

“The immunity enjoyed by the AIAC in the exercise of its functions pursuant to the First Schedule to the IOPIA extended to judicial review proceedings.” (para [117]).

(b) The Federal Court interpreted the phrase “from other legal process” in the First Schedule to the International Organizations (Privileges and Immunities) Act 1992 (IOPIA) to include judicial review, in line with the principle that immunity provisions must be construed to preserve the independence of international organisations (para [115]).

(c)  The Federal Court further stated –

“Parliament had not expressly excluded immunity in respect of judicial review proceedings from the ambit of the First Schedule to the IOPIA.” (para [117]).

(d) In line with the reasoning in Sundra Rajoo v Menteri Luar Negeri [2021] 5 MLJ 209, the Court concluded that immunity under the IOPIA extends to judicial review, as the provision was broad and intended to shield international organizations like AIAC from interference in their lawful functions (paras [115], [117]).

(e)  Additionally, under subsection 34(1) of CIPAA, the words “no action or suit” were held to include judicial review applications. The Court observed –

“The words ‘action’ or ‘suit’… are generic terms, thus inclusive of judicial review application.” (para [175]).

(f)   Therefore, the Federal Court held that judicial review is excluded by the immunities under both the IOPIA and CIPAA, provided AIAC acts within the scope of its functions and in good faith.

(3)  Whether a distinction must be made between AIAC’s role as an international arbitral institution versus its role as a statutory adjudication authority in determining its entitlement to immunity?

(a) The Federal Court answered this question in the negative. The Court held –

“There was no necessity to draw a distinction on the capacity of the AIAC either as an international arbitral institution or the statutory adjudication authority before it was entitled to enjoy the immunity conferred under the IOPIA.” (para [100]).

(b) The Federal Court considered the Kuala Lumpur Regional Centre for Arbitration (Privileges and Immunities) Regulations 1996, which were made to operationalize the Host Country Agreement and support the AIAC’s broader functions in alternative dispute resolution, including statutory adjudication under CIPAA (paras [90], [92]–[93]).

(c)  Furthermore, the Federal Court opined that the appointment of AIAC as the statutory adjudication authority under the Construction Industry Payment and Adjudication Act 2012 was done with the implied consent of AALCO, thereby validating that adjudication was part of AIAC’s intended international function (paras [101]–[102]).

(d) Hence, the Federal Court concluded that no legal distinction is required between AIAC’s roles in determining its entitlement to immunity; what matters is that the Centre acts within its legal framework and purpose under both international and domestic law.

1. The Federal Court allowed the appeal by AIAC and set aside the Court of Appeal’s decision. The Federal Court held that AIAC is immune from judicial review under both IOPIA and CIPAA when acting as a statutory adjudication authority, as long as it acts in good faith and within the scope of its statutory functions.

1. Immunity clauses like those under IOPIA and CIPAA protect international organizations like AIAC from judicial scrutiny, including judicial review, if acting lawfully and in good faith.
2. Courts must interpret Malaysian laws consistently with the country’s international legal obligations to ensure compliance with international agreements and principles which Malaysia has ratified.
3. The phrase “no action or suit” in subsection 34(1) CIPAA includes judicial review.
4. Immunity does not equate to an ouster clause; bad faith actions can still be reviewed.
5. This case strengthens the autonomy and independence of statutory adjudication bodies like the AIAC.