Challenging and Enforcing Arbitration Awards: Malaysia

1. Must an award take any particular form?

Malaysia

For an award to be enforceable, an award must comply with the provisions of section 33 of the Arbitration Act 2005 (the 2005 Act). Pursuant to section 33 of the 2005 Act, an award must be in written form and signed by the arbitrator. In respect of an award by a larger tribunal, the award need only be signed by the majority, although for clarity and prudence, all members are advised to sign the award. If they do not, reasons must be provided for any absent signatures. An award must also furnish the reasons on which it is based. Exceptions lie where there is an agreement to the contrary between parties or the award is a consent award. Further, the award must be dated and the seat of arbitration stated.

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

Malaysia

On receipt of an award, parties to arbitration proceedings will be afforded a 30-day window to present any requests for correction, interpretation or for additional awards to be made, as may be required. The relevant provisions are contained in Section 35 of the 2005 Act.

In the event that the arbitral tribunal considers the request to be justified, the correction or interpretation shall thereafter from part of the award. A party may request that the arbitral tribunal correct any error in computation, clerical or typographical error or request that the tribunal give an interpretation of a specific point or part of the award.

Correction

A party may bring to the arbitral tribunal’s attention any accidental errors in the award (computation, clerical or typographical) and request that the tribunal rectify these. In appropriate cases, the arbitral tribunal will grant a corrective award to effect the necessary changes.

Interpretation

A party may request the arbitral tribunal to give an interpretation of a specific point or part of an award to resolve any areas of ambiguity. As a prerequisite, the other party must agree to the same. The arbitral tribunal will then make an interpretative award to address and resolve the ambiguity.

Additional awards

A party may request the arbitral tribunal to make an additional award for claims omitted from the award. If the arbitral tribunal considers such a request to be justified, it will make the additional award within 60 days of receipt of the request.

3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Malaysia

The Malaysian courts have consistently demonstrated judicial adherence to the non-interventionist approach with respect to arbitral awards. This is to promote the finality of awards in accordance with legislative intent. Parties who have elected to resolve their disputes via arbitration are prohibited from resiling from their undertaking and seeking alternative remedies in a court of law. As such, stringent standards have been set up in the face of any applications concerning the setting aside of an arbitral award.

In the past, parties could apply to either set aside an arbitral award pursuant to section 37 of the 2005 Act or refer to the high court any question of law arising out of an award pursuant to section 42 of the 2005 Act. The latter, dubbed ‘an appeal in all but name’, gave rise to considerable difficulties in the administration of justice where the distinction between questions of law and fact became muddied. The provision under section 42 of the 2005 Act was eventually repealed by the Arbitration (Amendment) (No. 2) Act 2018 (which came into force on 8 May 2018) in an attempt to counter the Federal Court’s wide-ranging interpretation in Far East Holdings Bhd & Anor v. Majlis Ugama Islam dan Adat Resam Melayu Pahang and other appeals [2018] 1 MLJ 1. In brief, the decision expanded the scope of judicial challenges against arbitral awards on questions of law to include those that have been previously referred to an arbitrator. This area was previously non-challengeable.

The repeal of section 42 of the 2005 Act leaves the provision under section 37 as the only one available for an aggrieved party to mount a challenge on arbitral awards. Eight grounds are available under section 37(1), paragraphs (a) and (b) that warrant the setting aside of an arbitral award. The party making the application to set aside an arbitration award must provide proof that:

• a party to the arbitration agreement was under some form of incapacity;
• the arbitration agreement is invalid under the law to which the parties have subjected it;
• the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings;
• the arbitration award is not linked to the terms of arbitration;
• the arbitration award is beyond the scope of the submission to arbitration;
• the composition of arbitral tribunal or the procedure was not in accordance with the agreement of parties;
• the dispute is not capable of settlements by arbitration; or
• the award is in conflict with the public policy of Malaysia.

These provisions mirror article 34 of the UNCITRAL Model Law.

4. Is there a time limit for applying for the setting aside of an arbitral award?

Malaysia

Section 37(4) of the 2005 Act stipulates that an application to set aside an arbitral award may not be made after the expiry of 90 days from the date on which the party making the application had received the award.

5. What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

Malaysia

The courts may set aside both partial and interim awards in Malaysia. Section 2 of the 2005 Act defines an award as ‘any final, interim or partial award and any award on costs or interest’ but excludes interlocutory orders.

6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Malaysia

The High Court of Malaya or the High Court of Sabah and Sarawak, as the case may require.

7. What documentation is required when applying for the setting aside of an arbitral award?

Malaysia

The procedural requirement for setting aside an arbitral award is governed by Order 69 Rule 5 of ROC 2012. Pursuant to Order 69 Rule 5 of ROC 2012, an application is made by way of an originating summon supported by an affidavit in support. The affidavit in support should include a copy of the arbitration agreement and the award.

8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Malaysia

If the award or the agreement is in a language other than the national language (Malay) or English, the applicant must provide a duly certified translation of the full award in English.

9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Malaysia

The setting aside of awards falls within the jurisdictional ambit of the commercial division of the High Court. Pursuant to section 37(4) of the 2005 Act, an application to set aside an award may not be made after the expiry of 90 days from the date on which the party making the application received the award.

In the event that a challenge is made against the award that is sought to be enforced, the time limit can vary from three to nine months. An appeal arising therefrom to the Court of Appeal may take between six and 12 months to be determined. Thereafter, any application for leave to appeal to the Federal Court may take a further three to six months to be determined. If leave to appeal to the Federal Court is granted, that appeal may take a further six to nine months to be determined.

The parties are free to agree on the language to be used in the arbitral proceedings pursuant to section 24 of the 2005 Act. The arbitrator shall determine the language if the parties failed to agree the language to be used. There is no provision in the 2005 Act governing the length of submissions or of the documentation filed by the parties.

10. What are the different steps of the proceedings?

Malaysia

The process is adversarial and is based on affidavit evidence.

11. May an arbitral award be recognised or enforced pending the setting- aside proceedings in your jurisdiction? Do setting aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting aside proceedings, and what are the different steps of the proceedings?

Malaysia

An application to set aside an arbitration award is governed by section 37 of the 2005 Act read together with Order 69 Rule 5 of ROC 2012. Case law authorities provide where there is an application to set aside the award in one court and an application in the same court or another court to enforce the award, the application for enforcement ought to be stayed pending the outcome of the application to set aside the award. Pursuant to section 37 of the 2005 Act, an application to set aside is made to the High Court.

12. What are the grounds on which an arbitral award may be set aside?

Malaysia

Eight grounds are available under section 37(1), paragraphs (a) and (b) that warrant the setting aside of an arbitral award. The party making the application to set aside an arbitration award must provide proof that:

• a party to the arbitration agreement was under some form of incapacity;
• the arbitration agreement is invalid under the law to which the parties have subjected it;
• the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings;
• the arbitration award is not linked to the terms of the submission to arbitration;
• the arbitration award is beyond the scope of the submission to arbitration;
• the composition of the arbitral tribunal or the tribunal procedure was not in accordance with the agreement of parties;
• the dispute is not capable of settlements by arbitration; or
• the award is in conflict with the public policy of Malaysia.

These provisions mirror article 34 of the UNCITRAL Model Law.

13. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

Malaysia

The arbitral award would be set aside. The aggrieved party may appeal against the decision of the High Court to the Court of Appeal.

14. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them (eg, in recognition or enforcement proceedings)?

Malaysia

Decisions in other jurisdictions may have persuasive value, especially where the relevant statutory framework in other jurisdictions is similar. However, ultimately, the courts will be guided by the provisions of the 2005 Act.

15. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Malaysia

Arbitration proceedings in Malaysia are governed by the Arbitration Act 1952 and the 2005 Act, which came into force on 15 March 2006. The 1952 Act applies to arbitrations commenced prior to 15 March 2006 and the 2005 Act applies to arbitrations commenced after 15 March 2006. The applicable procedural law for recognition and enforcement of an arbitral award in Malaysia can be found under section 38 of the 2005 Act, while section 39 of the 2005 Act deals with grounds refusing recognition and enforcement of an award.

In respect of international conventions, Malaysia is a signatory to the New York Convention and the Convention on the Settlement of Investment Disputes (the ICSID Convention); the latter was enacted in 1966.

Malaysia is also a signatory of the Comprehensive Investment Treaty between members of the Association of Southeast Asia Nations.

16. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

Malaysia

Yes, subject to the reciprocity reservation (ie, it will only enforce arbitration awards of other signatory states). The Convention came into force in Malaysia on 3 February 1986.

17. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Malaysia

There is no prescribed time limit under the 2005 Act. However, parties should be mindful of the fact that section 6(1)(a) of the Limitation Act 1953 provides that any action must be brought within six years of a cause of action arising.

18. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Malaysia

Pursuant to sections 38 and 39 of the 2005 Act, an application for recognition and enforcement is made to the high court. Pursuant to section 2 of the 2005 Act, the term ‘high court’ refers to the High Court of Malaya or High Court of Sabah and Sarawak, as the case may require.

19. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Malaysia

Section 38 of the 2005 Act provides a summary procedure for recognition and enforcement of awards that is applicable both to awards where the seat of arbitration is in Malaysia and to foreign awards sought to be enforced in Malaysia.

On written application to the high court, an award made in respect of an arbitration where the seat of arbitration is in Malaysia or an award from a foreign state shall, subject to sections 38 and 39 be recognised as binding and be enforced by entry as a judgment in terms of the award or by action (section 38, paragraphs (1) and (2)). A ‘foreign state’ in this context means a state that is a party to the New York Convention (section 38(4)).

The mandatory nature of section 38 of the 2005 Act serves to limit the court’s discretion in refusing to recognise and enforce an award when the formal requirements of the 2005 Act have been satisfied. Reference is made to section 39 of the 2005 Act, which lists the exhaustive grounds on which recognition or enforcement may be refused if the party making the application provides proof that:

• a party to the arbitration agreement was under some form of incapacity;
• the arbitration agreement is invalid under the law to which the parties have subjected it;
• the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings;
• the arbitration award is not linked to the terms of arbitration;
• the arbitration award is beyond the scope of the submission to arbitration;
• composition of the arbitral tribunal or the tribunal procedure was not in accordance with the agreement of parties;
• the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made;
• the dispute is not capable of settlement by arbitration; or
• the award is in conflict with the public policy of Malaysia.

There is no express requirement in the 2005 Act for an applicant to identify the assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings.

20. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Malaysia

Applications for recognition in Malaysia can be made ex parte but can be directed to be heard on an inter partes basis, which would make the process adversarial. Generally, though, applications for recognition of awards are determined on an ex parte basis.

21. What documentation is required to obtain recognition?

Malaysia

Pursuant to section 38 of the 2005 Act, a party seeking to recognise an arbitral award will need to make an application to the high court by way of an originating summons. The application must be accompanied by the duly authenticated original copy of the award or a duly certified copy of the same, and the original arbitration agreement or a duly certified copy of the same.

22. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Malaysia

If the award or the agreement is in a language other than the national language (Malay) or English, the applicant must provide a duly certified translation of the full award in English.

23. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Malaysia

The enforcement of awards falls within the jurisdictional ambit of the commercial division of the high court. Proceedings brought must be completed within nine months of the date the application to enforce the award is filed. In the event that a challenge is made against the award that is sought to be enforced, the time limit can vary from three to nine months. An appeal arising therefrom to the Court of Appeal may take between six and 12 months to be determined. Thereafter, any application for leave to appeal to the Federal Court may take a further three to six months to be determined. If leave to appeal to the Federal Court is granted, that appeal may take a further six to nine months to be determined.

The parties are free to agree on the language to be used in the arbitral proceedings pursuant to section 24 of the 2005 Act. The arbitrator shall determine the language if the parties failed to agree which language is to be used. There is no provision in the 2005 Act governing the length of submissions or of the documentation filed by the parties.

24. Do courts recognise and enforce partial or interim awards?

Malaysia

Yes, the courts recognise and enforce both partial and interim awards in Malaysia. Section 2 of the 2005 Act defines an award as ‘any final, interim or partial award and any award on costs or interest’ but excludes interlocutory orders.

25. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under article V of the New York Convention?

Malaysia

The grounds for refusing recognition of an award under section 39 of the 2005 Act are identical to the grounds for setting aside an award under section 37 thereof. The grounds applied by the courts under section 39 of the 2005 Act are similar to the grounds provided under article V of the New York Convention.

In addition, an award may be refused recognition when the award has not yet become binding on the parties, or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made (2005 Act, section 39(a)(a)(vii)).

26. What is the effect of a decision recognising an arbitral award in your jurisdiction?

Malaysia

Section 38(1) of the 2005 Act states that on application to the high court, an award shall be recognised as binding and be enforced by entry of judgment in terms of the award or by action. The award then becomes immediately enforceable.

27. What challenges are available against a decision refusing recognition in your jurisdiction?

Malaysia

Section 39 of the 2005 Act deals with grounds for refusing recognition or enforcement, which corresponds with article 36 of the UNCITRAL Model Law. The listed grounds for refusal of recognition are exhaustive; therefore, if no ground is present, the award must be recognised. This position has been affirmed by the apex court of Malaysia in CTI Group Inc v. International Bulk Carriers SPA [2017] 5 MLJ 314.

28. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Malaysia

One of the grounds for refusing recognition or enforcement under section 39(1)(a)(vii) of the 2005 Act is if the award has not yet become binding on the parties, or has been set aside or suspended by a court of the country in which, or under the law of which, the award was made. In this respect, courts have the discretion to order a stay or suspension of the recognition or enforcement of arbitration decisions.

In matters relating to arbitration, Malaysian courts, like their foreign counterparts, have always accorded foremost consideration to the achievement of the objects of the arbitral regime – finality and resolution. This is to give effect to legislative intent and to protect successful claimants who have submitted themselves to arbitration from having their rights rendered illusory.

29. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Malaysia

The high court can order a party to provide appropriate security pending enforcement of an award under section 39(2) of the 2005 Act, which deals with parallel proceedings.

The discretion granted to the high court under section 39(2) may be exercised only to protect the party seeking enforcement during the period of an adjournment. Therefore, this is the fundamental consideration against the grant of security. Other relevant factors may include a lack of enthusiasm on behalf of the party applying to set aside or suspend the award or to prosecute that award, the validity of the award, or the difficulty threshold for enforcement of the award because of the delay.

In determining whether to grant security, the high court is also likely to take into consideration the financial situation of the respondent and whether the respondent has any assets within the jurisdiction. The high court may direct that a conditional stay be granted subject to a bank guarantee being provided or a sum of money being paid into a joint account between the parties or their respective solicitors.

The forms of security over assets generally include financial instruments, real estate, movable property, cash deposits, and claims and receivables.

30. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Malaysia

One of the grounds for refusing recognition or enforcement under section 39(1)(a)(vii) of the 2005 Act is where the award has been set aside or suspended by a court of the country in which, or under the law of which, the award was made.

If the arbitral award is set aside by a court order, the aggrieved party may appeal against the court order to the Court of Appeal.

31. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

Malaysia

Order 62 of the Rules of Court 2012 (the ROC 2012) governs the service of judicial documents to a defendant in Malaysia. Personal service of a document is required only where specifically provided for in the ROC 2012 or by order of the high court.

Order 92, Rule 1 of the ROC 2012 governs the language of judicial documents, which must be in the national language and may be accompanied by a translation in English.

Personal service of a document is effected by leaving a copy of the document with the person to be served (ROC 2012, Order 62, Rule 3) and not his or her agent, except when authorised under Order 10, Rule 2(1) of the ROC 2012. Service on a corporate office is effected by leaving a copy of the document at the registered office of the corporation, by sending a copy of the document by registered post addressed to the corporation at its principal office, handing a copy of the document to the secretary or any director of the corporation, or in the case of a foreign company registered in Malaysia, by handing a copy of the document or by sending it by registered post to a person authorised to accept service of process on behalf of the foreign company (ROC 2012, Order 62, Rule 4). The court may make an order for substituted service if personal service is required.

Ordinary service is effected by leaving the document at the proper address of the person to be served, by prepaid registered post, by facsimile through a party’s solicitor, in such other manner as may be agreed between the party serving and the party to be served or in such other manner as the court may direct. The proper address for service of any person is the address for service of that person. If, at that time, the person does not have a proper address for service, service may be effected at the business address of his or her solicitor; in the case of an individual, his or her last known address; in the case of individuals who are suing or being sued in the name of a firm, the principal or last known place of business of the firm; or in the case of a body corporate, the registered or principal office of the body (ROC 2012, Order 62, Rule 6).

Service on a minister in proceedings that are not by or against the government is governed by the Government Proceedings Act 1956 (ROC 2012, Order 62, Rule 7). Section 26 of the Government Proceedings Act provides that all documents required to be served on the government for the purpose of, or in connection with, any civil proceedings by or against the government may be served, in the case of proceedings by or against the federal government, on the Attorney General, and in the case of proceedings by or against the state government, on the State Secretary.

Notices sent from any court may be sent by post or electronically (ROC 2012, Order 62, Rule 11).

If no appearance has been entered or if the address for service is non-existent, all relevant documents that need to be served may be served by filing them with the proper officer of the court (ROC 2012, Order 62, Rule 13).

32. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter?

Malaysia

Malaysia is not a party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Therefore, any service to a defendant out of Malaysia may be accomplished through a law firm within the particular foreign jurisdiction.

However, Malaysia is a party to a number of bilateral investment treaties and is therefore afforded a method for the service of documents outside diplomatic channels or for private process servers. In general, these communications are sent and received by the Ministry of Foreign Affairs unless the relevant treaty specifies an alternative designated authority, be it the Ministry of International Trade and Industry or the Attorney General of Malaysia.

Order 92, Rule 1 of the ROC 2012 governs the language of judicial documents, which must be in the national language and may be accompanied by a translation in English.

33. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors’ interests in other companies?

Malaysia

No.

34. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Malaysia

Yes, see, for example, attachment proceedings.

35. What kinds of assets can be attached within your jurisdiction?

Malaysia

Attachment proceedings may be taken out against both movable and immovable property.

36. Are interim measures against assets available in your jurisdiction?

Malaysia

Yes.

37. What is the procedure to apply interim measures against assets in your jurisdiction?

Malaysia

Court authorisation is required and the application is made to the high court by way of a notice of application supported by an affidavit. The notice of application can be heard ex parte in certain situations, such as if there is an urgency or when there is a real risk that the assets might be dissipated.

38. What is the procedure for interim measures against immovable property within your jurisdiction?

Malaysia

One generally relies on section 11 or section 19 of the 2005 Act, or both, in seeking to secure interim relief in aid of arbitration. If one seeks the court’s assistance in securing interim measures, section 11 read with the ROC 2012 yield the relevant provisions.

If one places sole reliance on the tribunal to order interim measures, the relevant provision is section 19 of the 2005 Act, which corresponds to article 17 of the UNCITRAL Model Law. If one were to apply for court authorisation for the interim measures, the party must make an application to the high court by way of a notice of application supported by an affidavit.

The main difference between Section 11 and Section 19 of the 2005 Act is that the power of the high court under Section 11 can be invoked at any time after the arbitration agreement comes into existence to the commencement of the arbitral process, until the time of the making of the award and its enforcement. However, Section 19 of the 2005 Act can be invoked only after the constitution of the arbitral tribunal and up to the termination of the arbitration proceedings.

39. What is the procedure for interim measures against movable property within your jurisdiction?

Malaysia

The procedure is the same as for immovable property. 

40. What is the procedure for interim measures against intangible property within your jurisdiction?

Malaysia

The procedure is the same as for immovable property.

41. What is the procedure to attach assets in your jurisdiction?

Malaysia

It is a requirement to obtain court authorisation to attach assets in Malaysia, and these proceedings are made on an ex parte basis. Order 49 of the ROC 2012 prescribes a two-stage process:

If the garnishee is within the jurisdiction (ROC 2012, Order 49, Rule 1(1)), an applicant may commence proceedings by obtaining an order for the garnishee to show cause why he or she should not pay the judgment creditor (ROC 2012, Order 49, Rule 1(2)).

The order to show cause in Form 97, specifying the time and place for further consideration of the matter, will attach the debt to answer the judgment and the costs of the garnishee proceedings (ROC 2012, Order 49, Rule 1(2)).

The ex parte application for the show cause order must be supported by a Form 98 affidavit stating (1) the judgment or order and the unpaid sum for enforcement, (2) that the garnishee is believed to be within the jurisdiction and the judgment debtor is indebted by the garnishee, and (3) the sources of the aforementioned information and belief (ROC 2012, Order 49, Rule 2).

Service must be made, personally, at least seven days before the time appointed for further consideration to the garnishee and the judgment debtor, unless the court orders otherwise (ROC 2012, Order 49, Rule 3(1)). The order will bind the garnishee from the service time of any debt specified in the order (ROC 2012, Order 49, Rule 3(2)).

If a garnishee does not attend or dispute the debt owed, an order absolute (Form 99) shall be made (ROC 2012, Order 49, Rule 4(1)).

42. What is the procedure for enforcement measures against immovable property within your jurisdiction?

Malaysia

If the property is to be seized, a seizure shall be made by order of court prohibiting the transfer, charge, lien or lease of title for immovable property (ROC 2012, Order 47, Rule 6).

A seizure shall be made by way of a prohibitory order by the Court. An application for a prohibitory order can be made ex parte by way of notice of application supported by an affidavit (ROC 2012, Order 47 Rules 6(b), 6(c)). The judgment debtor must then be served with a copy of the prohibitory order issued to the judgment creditor for presentation to the Land Office Registrar (ROC 2012, Order 47, Rule 6(d)). The prohibitory order will then need to be registered to seize the property.

Alternatively, one may seek injunctive relief pursuant to Order 29 of the ROC 2012, read with section 11 of the 2005 Act, in the form of a prohibitory order, or Mareva injunction, to prevent a party from dealing with the immovable property. This is generally applied for in seeking interim relief in aid of arbitration as opposed to post-award final relief.

43. What is the procedure for enforcement measures against movable property within your jurisdiction?

Malaysia

There are two ways to enforce judgments against movable property, namely writ of seizure and sale and writ of delivery.

Before the issuance of a writ of seizure and sale, a praecipe in one of the forms in Form 89 shall be filed (Order 46 Rule 4(2) ROC 2012). Writ of seizure and sale shall be in Form 84 (High Court) and Form 84A (Subordinate Court) pursuant to Order 45 Rule 12 ROC 2012.

For writ of delivery or writ of specific delivery (with the leave of court), a praecipe in one of the forms in Form 89 shall be filed before issuance of writ (Order 46 Rule 4(2) ROC 2012) Writ of delivery shall be in Form 86 (High Court) and Form 86A (Subordinate Court) pursuant to Order 45 Rule 12 ROC 2012.

44. What is the procedure for enforcement measures against intangible property within your jurisdiction?

Malaysia

The enforcement measure is determined by the judgment or order pronounced by the court whether an amount of money is ordered to be paid for the assessed value of the intangible property. An application for writ of seizure and sale (ROC 2012, Order 47) or garnishee proceeding (ROC 2012, Order 49) may be made if the judgment sum is unsatisfied.

45. Are there specific rules applicable to the attachment of assets held by banks? Is it possible to attach in your jurisdiction sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible to attach in your jurisdiction the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Malaysia

Order 49 of the ROC 2012 governs garnishee proceedings. If the garnishee is within the jurisdiction (ROC 2012, Order 49 Rule 1(1)), an applicant may commence proceedings by obtaining an order for the garnishee to show cause why he or she should not pay the judgment creditor (ROC 2012, Order 49, Rule 1(2)).

An order to show cause in Form 97, specifying the time and place for further consideration of the matter, will attach the debt to answer the judgment and the costs of the garnishee proceedings (ROC 2012, Order 49, Rule 1(2)).

An ex parte application for a show cause order must be supported by a Form 98 affidavit stating (1) the judgment or order and the unpaid sum for enforcement, (2) that the garnishee is believed to be within the jurisdiction and the judgment debtor is indebted by the garnishee, and (3) the sources of the aforementioned information and belief (ROC 2012, Order 49, Rule 2).

Service must be made, personally, at least seven days before the time appointed for further consideration to the garnishee and the judgment debtor, unless the court orders otherwise (ROC 2012, Order 49, Rule 3(1)). The order will bind the garnishee from the service time of any debt specified in the order (ROC 2012, Order 49, Rule 3(2)).

If a garnishee does not attend or dispute the debt owed, an order absolute (Form 99) shall be made (ROC 2012, Order 49, Rule 4(1)).

46. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Malaysia

Sections 38 and 39 of the 2005 Act deal with recognition and enforcement of both domestic foreign arbitral awards and the grounds for refusal, respectively. The provisions apply to foreign states as well. Section 38(4) of the 2005 Act defines foreign state 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. 

47. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

Malaysia

Malaysia is not a party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Therefore, any service to a defendant outside Malaysia may be accomplished through a law firm within the particular foreign jurisdiction.

However, Malaysia is a party to a number of bilateral investment treaties and is therefore afforded a method for the service of documents outside diplomatic channels or for private process servers. In general, these communications are sent and received by the Ministry of Foreign Affairs unless the relevant treaty specifies an alternative designated authority, be it the Ministry of International Trade and Industry or the Attorney General of Malaysia.

Order 92, Rule 1 of the ROC 2012 governs the language of judicial documents, which must be in the national language and may be accompanied by a translation in English.

48. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?

Malaysia

It is a set rule under international law that, the sovereign state being sovereign equals cannot be subjected to the jurisdiction of another sovereign state or equals without its consent to jurisdiction. However, a state can waive its immunity from jurisdiction by signing an agreement or arbitration clause.

49. May award creditors apply interim measures against assets owned by a sovereign state?

Malaysia

There is no distinction between the availability of interim measures generally and the availability of interim measures against assets owned by a sovereign stated under the 2005 Act. However, section 11 of the 2005 Act read together with section 29(1) Government Proceedings Act 1956 provides that the courts do not have the power to grant an injunction against the government. In lieu thereof, the courts may make a declaratory order stating the rights of parties.

50. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Malaysia

Assets belonging to a foreign state are not immune from enforcement in Malaysia.

51. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Malaysia

It is possible for a foreign state to waive immunity from enforcement in Malaysia, but there should be an agreement between the parties to waive immunity.

52. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

Malaysia

To date, case law authority in Malaysia is silent on this matter.