MALAYSIA Law and Practice Contributed by: Samantha Chiang Xin Li, Yee Yik Shien and Tay Zi Li, Zi Li & Partners
ther security, super-priority debt, and standstill peri- ods, or existing lenders may themselves provide the rescue financing to preserve control over the capital structure, thereby ensuring that the priming lien risk is internalised within the lender group. 6. Enforcement 6.1 Enforcement of Collateral by Secured Lenders The enforcement of security is generally governed by the contractual provisions set out in the relevant secu- rity documents and is typically triggered by events such as an event of default or an acceleration event. In the case of a land charge, an application may be made to either the High Court or the Land Administra- tor (depending on the type of land title) for an order for sale. Depending on the terms of the security documents, a lender may also have the right to appoint a receiver, or a receiver and manager, to manage the secured assets and conduct the business arising from them. The powers and authority of a receiver, or receiver and manager, are those expressly or implicitly granted under the security documents, or by the court order appointing them. In addition, the Companies Act pre- scribes the minimum statutory powers of a receiver and manager, supplementing those in the security documents. 6.2 Foreign Law and Jurisdiction The choice of a foreign law as the governing law of the contract will typically be recognised in Malaysian courts, provided it has been made in good faith and is regarded as a valid and binding selection which will be upheld in the courts of such jurisdiction as a matter of the laws of such jurisdiction. The irrevocable submission of a party to a foreign jurisdiction will generally be upheld, except where the Malaysian courts consider that Malaysia is the more appropriate forum and that the interests of justice would be better served by the dispute being heard in Malaysia.
A contractual waiver of sovereign immunity will also generally be recognised and upheld by the Malaysian courts, although this may not prevent the courts from declining enforcement if the waiver is inconsistent with the principles of public international law or domestic public policy. 6.3 Foreign Court Judgments Foreign Court Judgement A foreign judgement which is final and conclusive may be enforceable by the Malaysian courts without re- examination of the merits if the judgement is given in the Superior Courts of a reciprocating country under the Reciprocal Enforcement of Judgments Act 1958 (REJA) and is duly registered in Malaysia in accord- ance with the provisions of the REJA. The reciprocat- ing countries as prescribed in the First Schedule of the REJA include: • the United Kingdom (including England, Scotland and Northern Ireland); • the Hong Kong Special Administrative Region of the People’s Republic of China; • Singapore; • New Zealand; • Sri Lanka; • India; and • Brunei. A Malaysian court may register a foreign judgment provided that: • the foreign court had jurisdiction in the circum- stances of the case; • the judgment was not obtained in proceedings in which the defendant did not (notwithstanding that process may have been duly served on him) receive notice of those proceedings in sufficient time to enable it to defend the proceedings, and it did not appear; • the judgment was not obtained by fraud; • the enforcement of the judgment will not be contra- ry to public policy in Malaysia; and • the rights under the judgment are vested in the person by whom the application for registration was made.
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