MALAYSIA Law and Practice Contributed by: Rabindra S. Nathan, Rodney Gomez, K. Shanti Mogan and Alexius Lee, Shearn Delamore & Co
• the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties; • the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malay - sia; or • the award is in conflict with the public policy of Malaysia (see Section 37 AA 2005). These grounds are exhaustive (see Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd and another appeal [2021] 1 MLJ 1). 11.2 Excluding/Expanding the Scope of Appeal There is no provision for parties to agree to exclude or expand the scope of challenge to the decision of the Judicial review of an arbitral award is not intended to review the merits of the case but instead to confine itself to the limited grounds in the AA 2005. The stand - ard of review is intended to be deferential rather than de novo. Having said that, in the Government of the Lao People’s Democratic Republic v Thai-Lao Lignite Co Ltd, A Thai Co and Anor [2017] 9 CLJ 273, the Malaysian Federal Court equally held that its role was not merely to rubber-stamp arbitral awards. arbitral tribunal under the AA 2005. 11.3 Standard of Judicial Review Malaysia has been a signatory to the New York Con - vention on the Recognition of Foreign Arbitral Awards 1958 since 1985. This requires courts of contracting states to recognise and enforce arbitral awards made in other contracting states. The commitment to the New York Convention is reflected in the provisions of the AA 2005. 12.2 Enforcement Procedure A party seeking to enforce an arbitral award may make an application to the High Court in Malaysia. Upon such an application, the award will be recognised as binding and will be enforced by entry as a judgment 12. Enforcement of an Award 12.1 New York Convention
in terms of the award. The award to be enforced may be made in respect of an arbitration where the seat of arbitration is in Malaysia or a foreign state. However, pursuant to the passing of the Arbitration (Amend - ment) Act 2024, one of the key changes to the AA 2005 will include that an arbitral award delivered in an arbitration where the seat of arbitration is in Malaysia or a “foreign state” is binding instantly or automati - cally, without the need for an enforcement applica - tion (Section 9 of the Arbitration (Amendment) Act 2024. The amendment eliminates the additional step of obtaining recognition of the award as a judgment. The only legal requirement for the enforcement of an arbitral award is the production of a duly authenti - cated original award or a duly certified copy of the award, and the original arbitration agreement or a duly certified copy of the agreement. As long as this formal requirement is complied with, the court must grant recognition and enforcement of an arbitration award upon such an application being made (see the Malay - sian Court of Appeal’s decision in Tune Talk Sdn Bhd v Padda Gurtaj Singh [2020] 3 MLJ 184). Nevertheless, if the party against whom the enforce - ment of the award is invoked provides proof that the arbitral award has been set aside or suspended by a court of the country in which the award was made or under the law under which the award was made, the High Court may refuse the recognition or enforcement of the award. Section 39 of the AA 2005 provides an exhaustive list of grounds on which enforcement of an arbitral award may be refused similar to that of setting aside an arbi - tral award in 11.1 Grounds for Appeal . However, Sec - tion 39 of the AA 2005 does not mention sovereign immunity as a defence. Therefore, sovereign immunity arguments must be framed within the limited statu - tory grounds under Section 39, rather than asserted independently. In Elisabeth Regina Maria Gabriele Von Pezold & Ors v Republic of Zimbabwe [2023] MLJU 2657, the High Court recognised and enforced an ICSID arbitration award against the Republic of Zimbabwe. The High Court held that sovereign immunity cannot be used to prevent the recognition of an ICSID award.
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