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( 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)
2. Date of entry into force of the New York Convention
3 February 1986.
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985 ('the 1985 Act') gave effect to the New York Convention. The 1985 Act has since been repealed by the Arbitration Act 2005 ('the 2005 Act') whose ss. 38 and 39 incorporate the enforcement provisions of the New York Convention. 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. The enforcement of foreign awards prior to 15 Mar. 2006 continues 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:
Yes. The 2005 Act provides for the recognition of awards made in arbitrations seated in Malaysia and awards made in foreign States. 'Foreign State' is defined as a State which is a party to the New York Convention.
(Source: Arbitration Act 2005, s. 38(1) and (4).)
(b) commercial relationships?
Yes. However the 2005 Act provides for any dispute which parties have agreed to submit to arbitration to be arbitrable save where it is contrary to public policy.
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?
The enforcement provisions have been amended, with effect from 1 July 2011, to cover the recognition and enforcement of awards made in arbitrations seated in Malaysia and awards made in foreign States, as defined in Q.3(a) above.
(Source: Arbitration Act 2005, s. 38.)
B. National sources of law
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) Rules of the High Court, 0. 69;
(iv) Case law.
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(b) If, yes, what is the applicable limitation period (time limit) and when does it start running?
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The courts of Malaysia.
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. Provided the award is from a New York Convention Contracting 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, recognition and 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 ex parte proceedings.(Source: Rules of the High Court 1980, Orders 67 and 69.)
(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 this decision?
At least one, and 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 first-time decision on a general principle, raises a question of importance for which further discussion 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 a stay is granted, execution is suspended.
(Source: Rules of the High Court 1980, Order 42 r. 7.)
E. Evidence required
(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 or a duly certified copy of the award; (iii) the original arbitration agreement or a duly certified copy of the agreement.
(Source: Arbitration Act 2005, s. 38(2).)
(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 award and the arbitration agreement in their entirety.
(Source: Arbitration Act 2005, s. 38(2).)
(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 the 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 bringing an appeal has expired or once an appeal has been disposed of.
(a) Is it necessary to provide a translation of the documents supplied?
If the award and/or the arbitration agreement are in a language other than Malay or English, a duly certified translation into English of the award and the arbitration agreement must be provided.
(Source: Arbitration Act 2005, s. 38(3).)
(b) If, yes, into what language?
English or Malay.
(Source: Arbitration Act 2005, s. 38(3).)
(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. 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 the required documents.
F. Stay of enforcement
(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 recognition and enforcement to be stayed pending an application to set aside or suspend the award in the foreign State. However, there is 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 to seek a stay of proceedings in the absence of an express statutory provision. Duplication of proceedings is sometimes accepted as a reason.
(Sources: case law specifying special circumstances in which a stay of proceedings may be granted.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No. However, if requested, the court may exercise its discretion to order the provision of security.
(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.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
It is possible to seek recognition and enforcement of final, interim and partial awards, but not interlocutory orders.. 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 where the award contains decisions on matters beyond the scope of the agreement, and those irregular parts 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. It is therefore 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)?
K. Shanti Mogan