MALAYSIA Law and Practice Contributed by: Rabindra S. Nathan, Rodney Gomez, K. Shanti Mogan and Alexius Lee, Shearn Delamore & Co
pated in the arbitration and was estopped from deny - ing the tribunal’s jurisdiction. 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. That said, in Government of the Lao People ’ s Democratic Republic v Thai - Lao Lignite Co Ltd , A Thai Co and Another [2017] 9 CLJ 273, the Malaysian Fed - eral 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 and Enforcement of For - eign 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 A party seeking to enforce an arbitral award may make an application to the High Court in Malaysia. Following the 2024 amendments, Section 38 (1) of the AA 2005 distinguishes recognition from enforcement. Malay - sian-seated and foreign state awards are recognised as binding automatically, but enforcement still requires a written application to the High Court and remains subject to Section 39 AA 2005. 12. Enforcement of an Award 12.1 New York Convention in the provisions of the AA 2005. 12.2 Enforcement Procedure The award to be enforced may be made in respect of an arbitration where the seat of arbitration is in Malay - sia or a foreign state. The amendment therefore elimi - nates the need for a separate recognition step, but it does not eliminate the need to seek enforcement
through the High Court where coercive enforcement is required. 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; see 11.1 Grounds for Appeal . However, Section 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 and Others 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. The court has a discretion to adjourn the recognition and enforcement of an arbitration award in Malaysia pursuant to Section 39 (2) of the AA 2005 where the award is subject to ongoing set-aside proceedings at its seat. However, the courts do not have the jurisdiction to permanently injunct an application to recognise and enforce an arbitral award on the basis that the award
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