Forgot your password?
Please enter your email & we will send your password to you:
My Account:
Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdictions), if relevant)
Malaysia.
2. Date of entry into force of the New York Convention
1986. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985 ('the 1985 Act') came into force on 3 Feb.1986. It gives effect to the New York Convention. The 1985 Act has since been repealed by the Arbitration Act 2005 ('the 2005 Act') which has incorporated the enforcement provisions of the New York Convention in ss. 38 and 39 of the 2005 Act. The 2005 Act came to force on the 15 Mar. 2006.
The recognition and enforcement of foreign arbitral awards are now governed by the 2005 Act. Pre-existing enforcements of foreign arbitral awards (prior to 15 Mar. 2006) will continue to be governed by the 1985 Act.
(Sources: The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985; Arbitration Act 2005, ss. 38 and 39.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity
Yes. The 2005 Act recognizes awards made in respect of a domestic arbitration and awards from a Foreign State. 'Foreign State' is defined as a State which is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations Conference on International Commercial Arbitration in 1958.
(Source: Arbitration Act 2005, s. 38 (1) and (4).)
(b) commercial relationships
No. The 2005 Act does not provide that arbitral awards shall govern only commercial relationships. In fact, the 2005 Act expressly applies to any arbitration to which the Federal Government or the government of any component state of Malaysia is a party. With respect to non-governmental arbitrations, the definition of the term 'international arbitration' is not limited to disputes arising out of a commercial relationship.
(Source: no specific legal source.)
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I (1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
Currently unclear, but position may be clarified soon.
The enforcement provisions as presently drafted cater for the recognition and enforcement of a domestic award and an award from a Foreign State (as defined in 3(a) above), leaving a lacuna in respect of international arbitrations where the seat is Malaysia.
(Source: Arbitration Act 2005, s. 38.)
This is due to the definition of 'domestic arbitration' in s. 2 of the 2005 Act, which defines a 'domestic arbitration' as any arbitration that is not an international arbitration. 'International arbitration' is defined as including arbitrations with foreign elements where the seat is in Malaysia. Such arbitrations would technically not fall within the ambit of either domestic arbitration or arbitrations in a Foreign State under the above-mentioned definition.
(Source: Arbitration Act 2005, ss. 2 and 38.)
Representations have been made to the Attorney General who has indicated that amendments will be made to the 2005 Act to give effect to the recognition and enforcement of awards in international arbitrations seated in Malaysia.
B. National sources of law
5.
What specific sources of law are applicable to recognition and enforcement of foreign awards, (e.g. statutes, regulations, codes, directives, other legal instruments)?
(i) Arbitration Act 2005;
(ii) Reciprocal Enforcement of Judgments Act 1958 ('REJA');
(iii) The Rules of the High Court, 0. 69.
There is case law interpreting the provisions of the above-mentioned legislation, but no judge-made law on the recognition of enforcement of foreign awards.
C. Limitation periods (time limits)
6.
Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
If, yes, what is the applicable limitation period (time limit) and when does it start running?
No.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The High Court - Appellate and Special Powers Division.
(Source: Practice Direction No. 1 of 2008.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc)?
There are no jurisdictional requirements. So long as it is an award from a Convention State, the Malaysian Court will accept jurisdiction.
(Source: Arbitration Act 2005, s. 38(4).)
However, if the court finds the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia, or the award is in conflict with Malaysian public policy, regulation or enforcement will be refused.
(Source: Arbitration Act 2005, s. 39(1)(b).)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision is obtained through inter partes proceedings, unless enforcement is sought via the REJA. In that case, the first decision is obtained through ex parte proceedings.
(Source: Rules of the High Court 1980, Orders 67 and 69.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal of recourse?
Yes, to the Court of Appeal.
(Source: Court of Judicature Act 1964, s. 67.)
(b) How many levels of appeal or recourse are available against his decision?
One (potentially two). After the Court of Appeal, there is a further right of appeal with leave to the Federal Court if the case calls for a decision to be made for the first time on a general principle; raises a question of importance for which further argument and a decision by the Federal Court would be to public advantage, or requires a decision on the effect of a provision in the Constitution.
(Source: Court of Judicature Act 1964, ss. 67 and 96.)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
A judgment recognizing an award may be executed against assets immediately it has been issued. For some forms of execution, a sealed copy of the judgment must first be obtained. The party appealing the judgment may apply for a stay of execution. If the stay is granted, the execution is suspended.
(Source: Rules of the High Court 1980, Order 42 r. 7.)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc)?
The applicant must supply the court with: (i) a sworn affidavit stating the facts on which the application is based, deriving from personal knowledge, records, information or belief; (ii) a duly authenticated original award or duly certified copy of the award; (ii) the original arbitration agreement or duly certified copy of the agreement.
(Source: Arbitration Act 2005, s. 38(2).)
In addition where the award and/or the arbitration agreement is in a language other than Malay or English, (iv) a duly certified translation of the award and the agreement in the English language.
(Source: Arbitration Act 2005, s. 38(3).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
It is necessary to provide the agreement and the arbitral award in its entirety.
(c) Are originals or duly certified copies required?
Duly authenticated originals or duly certified copies are required.
(d) How many originals or duly certified copies are required?
The Court requires one duly authenticated original or duly certified copy of each of the award and arbitration agreement.
(e) Does the authority or court keep the originals that are filed/?
Upon request, the court will return the originals to the applicant once the time limit for appealing has expired or once an appeal has been disposed of.
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes.
(b) If, yes, into what language?
English or Malay.
(c) Is it necessary for the translation to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Yes, although Malaysian law does not expressly specify who may certify a translation of a foreign award. However, pursuant to the New York Convention, the translation must be certified by an official or sworn translator or by a diplomatic or consular agent. As a practical matter, if it is anticipated that the translation may be contested, it is prudent to have the translation certified as well by a certified translator in Malaysia.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
The applicant must provide a full translation of documents required to be submitted.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
There is no express provision in the 2005 Act allowing legal proceedings for the recognition and enforcement to be stayed pending an application to set aside or suspend the foreign award. There is however express provision for the court to adjourn its decision or order the other party to provide appropriate security where an application to set aside or suspend the award is made in a Malaysian court.
(Source: Arbitration Act 2005, s. 39(2).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
Special circumstances are required for any application for a stay of proceedings in the absence of express statutory requirements. Duplication of proceedings is sometimes accepted as a reason.
(Source: case law has specified special circumstances as the test for granting a stay of proceedings.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. However, upon application, the court may exercise its discretion to order the provision of security.
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If, yes, can any steps be taken to preserve the confidentiality of such documents?
Yes. A motion can be brought seeking a court order to preserve the confidentiality of documents. However, courts are generally averse to granting such orders.
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
No. A motion can be brought seeking a court order to have the hearing held in camera. However, courts are generally averse to granting such orders.
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or a void publication of confidential information (such as business or State secrets)?
Yes. A motion can be brought seeking a court order to preserve the confidentiality of any information in the court record, including a judgment on recognition and enforcement. Such an order continues to have effect, including for the duration of any appeal and after final judgment, until the court orders otherwise. However, courts are generally averse to granting such orders.
(Source: no specific legal source).
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Only final awards are subject to recognition and enforcement. Partial awards, so long as they are final, may thus be recognized and enforced. Having said that, interim awards relating to security for costs, discovery and interrogatories, the giving of evidence by affidavit and conservatory relief which are rendered by arbitral tribunals in proceedings seated in Malaysia may be enforced in the same manner as final awards.
(Source: Arbitration Act 2005, s. 19(3).)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
Malaysian law does not address this point directly. In principle, there is nothing limiting a court's power to recognize and enforce non-monetary relief awarded in foreign arbitral awards, where the court has jurisdiction to give such relief.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
Malaysian law does not specify whether a party may obtain recognition and enforcement of only part of the relief granted in a foreign award, and case law has not addressed this question directly. Where part of the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or if the award contains decisions on matters beyond the scope of the agreement, and such irregular provisions can be severed from the remainder of the award, there is no reason why the court may not recognize and enforce only the remainder of the award.
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
The 2005 Act gives the Malaysian court discretion to refuse enforcement where the award has been set aside by a competent authority. Whilst the High Court therefore has discretion, it is not impossible for the applicant to obtain recognition and enforcement of such a foreign award.
(Source: Arbitration Act 2005, s. 39(1)(a)(vii))
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc)?
Country Rapporteur: K. Shanti Mogan.