Ing Bank N.V. v Tumpuan Megah Development Sdn Bhd (02(i)-19-06/2024(W))

This is an appeal by ING Bank N.V. and O.W. Bunker Far East (Singapore) Pte Ltd (the Appellants) against Tumpuan Megah Development Sdn Bhd (the Respondent) regarding the enforcement of a foreign arbitral award. The main issue in this appeal is whether the Appellants could enforce the English High Court judgment (confirming the arbitral award) under the Reciprocal Enforcement of Judgments Act 1958 (REJA), or if they were restricted to enforcing the award exclusively under the Malaysian Arbitration Act 2005 (MAA).

The dispute between both parties arose from the existence of two contracts for the supply of marine bunkers entered into by the Second Appellant (O.W. Bunker Far East (Singapore) Pte Ltd) and the Respondent. The Appellants claim that, under the two contracts, a sum is due and owing to them for the supply of bunkers to two vessels in or around 17 October 2014 and 29 October to 1 November 2014. However, the Respondent denies the existence of the two supply contracts and maintains that no bunkers or marine gas oil were ever supplied to the two vessels.

On 4 February 2020, the Appellants obtained an arbitral award from a London arbitral tribunal. The London Tribunal ruled in favour of the Appellants on both jurisdiction and merit. The Respondent did not comply with the award nor apply to set aside or challenge the arbitral award by the London Tribunal. By the end of 2020, the Appellants obtained a confirmation judgment from the English High Court to register and enforce the London arbitral award.

On 11 June 2020, the Respondent commenced arbitration proceedings in Malaysia on the same subject matter. However, on 29 1 The full grounds of judgment are ready. 2 March 2023, the Malaysian Tribunal held that it did not possess jurisdiction to determine any of the Respondent’s claims in the Malaysian Arbitration because of res judicata, the doctrine which provides finality to litigation, preventing the same subject matter from being adjudicated twice. The Respondent’s application to set aside this Malaysian tribunal decision was dismissed by the High Court on 30 May 2025. This is currently the subject matter of an appeal in the Court of Appeal, filed on 11 June 2025. This is separate from the proceedings before us.

On 22 March 2021, the Appellants obtained an ex-parte order to register the English High Court confirmation judgment under REJA. The Respondent applied to set aside the order. Before the determination of the setting aside application, the Respondent filed an Application for Trial identifying four ‘potential issues’ requiring a trial. The High Court dismissed the Application for Trial. This position was reversed by the Court of Appeal.

Ruling in favour of the Respondent, the Court of Appeal held that where a foreign arbitral award had been obtained to be enforced in Malaysia, the appropriate mode of enforcement was under the MAA and not by way of REJA. It held that the MAA is specific legislation governing the recognition and enforcement of a foreign arbitral award compared to REJA which is of general application to all judgments. MAA therefore supersedes and prevails over REJA and is the exclusive route for enforcing foreign arbitral awards.

Relying inter alia upon an expert opinion on behalf of the Respondent, the Court of Appeal held that registering a foreign arbitral award under REJA (following the registration of the arbitral award in the seat country namely the UK) amount to a ‘judgment on a judgment’ and thus tantamount to ‘judgment laundering’.

It further held that in the application to set aside an ex-parte order for registration of a foreign arbitral award, the High Court below should hear the objection of a lack of jurisdiction of the arbitral tribunal de novo, namely hearing it afresh, rather than a mere review (Dallah Real Estate 3 and Tourism Holding Company v Ministry of Religious Affairs of the Government of Pakistan [2011] 1 AC 763). REJA and/or MAA

We disagree with the Court of Appeal's holdings with our reasoning summarised below.

REJA and MAA are distinct legitimate enforcement avenues

REJA, premised upon the principle of reciprocity, constitutes an independent mode of recognition of arbitral awards in this jurisdiction.

The definition of ‘judgment’ in section 2 of REJA includes an arbitral award which has been registered in the seat court as a judgment. REJA also incorporates bilateral agreements between Malaysia and other individual states, as specified in its Schedule 1.

Moreover, as explained by the Court of Appeal in Mann Holdings Pte Ltd & Anor v Ung Yoke Hong [2019] 6 CLJ 475, the entire basis of REJA is the concept of comity and substantial reciprocity between states.

In short, REJA allows for the enforcement of foreign arbitral awards through their confirmation judgment. The MAA, on the other hand, provides a direct route for enforcing arbitral awards. Both of them constitute separate and legitimate means of enforcement.

(ii) MAA neither displaces nor prevails over REJA

In our view, any suggestion that the enactment of the MAA (which is premised upon the Model Law), as a specific legislation governing all arbitral matters, effectively supersedes or ‘ousts’ all other general legislation including REJA is erroneous. This runs contrary to the underlying purpose and object of the Model Law, not to mention the New York Convention.

The non-inclusion of Article VII of the New York Convention in the MAA cannot be construed as having the effect of impliedly repealing the 4 REJA, which remains in force since 1958 to date. At no time during the enactment of the MAA was any legislative attempt made to preclude or prohibit the alternative route of REJA to enforce a foreign arbitral award through a confirmation judgment.

Section 8 of the MAA cannot expand its reach to encroach on REJA as the interpretive effect of its express words is limited to the MAA (see Far East Holdings Bhd & Anor v Majlis Ugama Islam Dan Adat Resam [2018] 1 CLJ 693 (FC)).

Furthermore, the dichotomous comparison of MAA as lex specialis (a more specific legislation on arbitral matters), which prevails over REJA as lex generalis (a general legislation), is, with respect, not tenable.

Both REJA and MAA are effectively lex specialis in their own sense.

REJA only allows for enforcement of judgments including confirmation judgments in respect of specific jurisdictions, thereby making it an exception rather than embodying the general position in law. It is therefore more correctly categorised as ‘lex specialis’ in itself.

Similarly, the MAA is specifically geared under the MAA to deal with enforcement of arbitral awards. So it also falls within the category of lex specialis.

To that end, it would be incorrect to even compare the two modes of enforcement because it would not be a comparison of lex generalis with lex specialis as both are lex specialis.

Further, it is not permissible for the Courts to usurp Parliament’s power by either impliedly repealing REJA or privileging MAA as the sole source of enforcing foreign arbitral awards when REJA is still a valid law.

Nor should REJA and MAA be read interdependently since the legislative intent of both statutes is entirely disparate (see V Medical Services M Sdn Bhd v. Swissray Asia Healthcare Co Ltd [2025] 4 CLJ 282). 5

We consider unwarranted, the view that the registration under REJA was a deliberate attempt to bypass the safeguards available under the MAA, which is based on the UNCITRAL Model Law. This is because they are distinct yet equally valid statutory regimes providing for the enforcement of foreign arbitral awards.

In short, MAA does not repeal or override REJA and REJA is not subject to MAA. No ‘judgment laundering’

Contrary to the expert opinion, we do not consider that the process of registering an arbitral award as a judgment in the seat country (the UK) and then seeking to enforce that judgment in Malaysia under REJA amounts to ‘judgment laundering’.

We observed that the peculiar factual matrix in which the ‘judgment laundering’ arises in the seminal case of Strategic Technologies v Procurement Bureau of the Republic of China Ministry of Defence [2020] EWCA Civ [2021] 2 WLR 448 is distinguishable from the present case.

In that case the first judgment was from Singapore while the judgment laundering aspect of the case, i.e. ‘the judgment upon a judgment’ was from the Grand Court of the Cayman Islands. There were in effect two separate judgments before the second judgment was sought to be enforced in the English Courts.

That is not the case here, where there is an English arbitral award confirmed as a judgment under English legislation and which is sought to be enforced in Malaysia under REJA based on reciprocity. It is ultimately an English award which is specifically recognised as being registrable under REJA in the form of a confirmation judgment, which can only be obtained by registering the judgment under English arbitral law.

Judgment laundering would involve a foreign judgment being ‘laundered’ in a jurisdiction first, before being passed off at the 6 enforcement court for recognition and enforcement. That is not the case here, as there is only one court and one judgment involved. No de novo re-hearing of the jurisdictional objection

The Court of Appeal held that where jurisdiction and fraud are raised bona fide before the Court, the Malaysian court as the registering and enforcing court under REJA would hear the issue de novo or afresh. The reasoning is that an arbitral tribunal’s decision on its own jurisdiction is never final, especially when issues of fraud are linked to the issue of jurisdiction.

In the present case, we are not prepared to agree with the Court of Appeal. First, the Court of Appeal erred in reading the provisions of the MAA into REJA to allow the de novo re-examination of the issue of fraud in its entirety. As mentioned earlier, REJA is not subject to MAA as both are separate.

Second, the enforcing court under REJA is not an appellate court. It is an enforcing court with limited bases to review the judgment sought to be enforced, as spelt out under section 5.

Therefore, under the provisions of REJA, more particularly section 5(1)(a)(ii) and (iv), the approach of the Court is not to undertake a de novo re-hearing of the evidence that was undertaken before the arbitral tribunal relating to the allegations of fraud afresh, for the purposes of a jurisdictional challenge. This is all the more so where such findings were scrutinised by the supervisory court (the English High Court) under section 66 of the English Arbitration Act 1996.

While section 5 of REJA enables the registering court to consider the issue of jurisdiction in terms envisaged under REJA, it only provides for a minimal curial review of the foreign judgment, as REJA is fundamentally premised upon the principle of reciprocity. The de novo approach should be an exception rather than the rule.

The present jurisdictional challenge predicated on factual findings of fraud does not warrant a de novo rehearing, as allowing otherwise 7 would amount to a disproportionate attack on the principle of finality and run contrary to the spirit of reciprocity embodied in REJA. Interaction between Arbitral Awards and Confirmation Judgments under REJA

For completion, we furnish the analysis on how we reach our conclusion in applying REJA to the present appeal. There are three possibilities relating to the interaction between arbitral awards and confirmation judgments under REJA.

In summary, the first possibility is known as the ‘extraterritorial merger approach’ where the arbitral award merges with the confirmation judgment, such that the arbitral award no longer subsists separately. Consequently, there can only be a review of the judgment and not the arbitral award.

The second possibility is known as the ‘limited-in-scope merger approach’ where the merger of the arbitral award and the confirmation judgment occurs only within the rendering or registering state and has no extraterritorial effect. In other words, the arbitral award does not merge into the judgment outside of the jurisdiction of the seat country.

The third possibility is known as the ‘parallel entitlement approach’ where the foreign confirmation judgment is considered to be a separate and distinct claim from the arbitral award upon which it is based. As a result, the confirmation judgment and arbitral award create a parallel entitlement, by which the award creditor may proceed with enforcement against the confirmation judgment or the arbitral award.

We are of the view that the second approach, the ‘limited-in-scope merger approach’ is the approach to be applied in construing REJA, especially in light of the definition of ‘judgment’ in section 2 and the operation of section 5.

First, we have construed ‘judgment’ for the purposes of enforcement under REJA in line with section 2, which allows for, and prescribes the criteria for the enforcement of a foreign arbitral award in the form of a 8 confirmation judgment. This means that the court under REJA can undertake an assessment of the arbitral award under section 5, and not solely the confirmation judgment.

As such, in relation to REJA, the enforcement of the confirmation judgment separately from the arbitral award does not come into play, thus not warranting the application of the third approach, the parallel entitlement approach. Rather it is a question of whether REJA can be utilised to enforce an arbitral award in the form of a confirmation judgment, when the MAA subsists. To reiterate, we are of the affirmative view on this question.

Further, the limited in scope merger approach best explains how both REJA and the MAA provide two disparate yet holistic avenues for the registration and enforcement of foreign arbitral awards.

The utilisation of this doctrine means that once the award creditor has enforced the award within the seat jurisdiction as a judgment of the court, the award does merge with the judgment (where no application to set aside is either made or is successful). However, this is only so within the seat jurisdiction. And it is only within the seat jurisdiction that the judgment can be enforced or set aside (see Ashapura Minechem Ltd v Armada (Singapore) Pte Ltd [2018] EWHC 3056 (Comm)).

Moreover, there is no such merger of the judgment extraterritorially, thus not warranting the application of the first approach, the extraterritorial merger approach. This means that when the award creditor seeks to enforce the judgment outside of the seat country, it may choose to enforce the arbitral award or the confirmation judgment (if it is able to under REJA) because extraterritorially, there is no merger of the award into the judgment. We concur with the expert opinion from the Respondent in this respect. For the purposes of REJA, the foreign arbitral award is recognised as a judgment which is made enforceable because of the existence of the confirmation judgment.

For these reasons above, we adopt the ‘limited-in-scope merger approach’ in construing and applying REJA. 9

In conclusion, we hereby allow the appeal, setting aside the Court of Appeal’s decision allowing the Respondent’s Application for Trial, identifying four ‘potential issues’ requiring a trial prior to the determination of the setting aside application. The application for setting aside is to proceed without any such trial.

We have answered questions 1(a) & (b) in our full grounds of judgment and found that it is not necessary to answer questions 1(c)(i) and (ii). Accordingly, we declined to answer those questions.

The court will now hear parties on costs.