When arbitration clause and oppression claims collide

• Main Author: Mohd. Sulaiman, Aiman @ Nariman
• Format: Conference or Workshop Item
• Language: English
• Published: 2015
• Subjects: K Law (General)
• Online Access: http://irep.iium.edu.my/43321/1/When_arbitration_-_aiman.pdf; http://irep.iium.edu.my/43321/; https://www.unisza.edu.my/iclas2015/index.php?option=com_content&view=featured
• Institution: Universiti Islam Antarabangsa Malaysia

The reliance on arbitration clause within the context of shareholders' protection under company law rules gives rise to several questions which the article seeks to answer: first, whether members may agree to rely on arbitration regarding matters that would ordinarily be resolved through a statutorily provided remedy such as an oppression remedy; second, can the arbitration clause precludes a member from bringing an oppression action so that the court can reject to hear the oppression claim; third, if the arbitration clause and the statutory remedy are not mutually exclusive, what are limitations of arbitration, if any? Similar issues have been raised recently in several common law jurisdictions-UK, Malaysia, Singapore and Hong Kong- discussing the status and enforceability of arbitration clause in the presence of the statutorily provided members' oppression remedy. These decisions, while pro-arbitration, provides some limits to arbitration enforcement in the presence of statutory remedies. The article adopts a comparative study and doctrinal analysis approach of statutory provisions and case law to clarify the scope ,breadth and limits of arbitration clause within the context of company law specifically and other statutorily provided remedies in general. The discussion has implications for the use of arbitration clause within the context of minority shareholders' protection as well as wider implications beyond company law in relation to the availability of arbitration in the presence of other statutorily provided remedies.