Q&M has produced the duly certified copy of the arbitration agreements as required by s. 38(2)(b) of the Arbitration Act 2005 and Order 69 rule 8(3) of the Rules of Court 2012. [35] I accept the Plaintiff’s contention that the phrase “an applicant may enforce the award in the manner provided for under rule 8” in O. r. 9, ROC 2012 makes it undoubtedly clear that O. 69 r. 9, ROC 2012 is not a pre-requisite before an applicant can make an application under O. 69 r. 8, ROC 2012. The fact that the Plaintiff had made a reference to Order 69 Rule 9 to my mind does not mean that the Plaintiff could not refer to Order 69 Rule 8 and Section 38 of the Arbitration Act 2005 to justify the application for the Ex Parte Order. [36] For completeness, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (also known as the “New York Convention”) has removed the ‘double exequatur’ requirement under the Geneva Convention made in 1927 which required a party seeking enforcement of an arbitral award to first obtain a declaration of the enforceability of the arbitral award from the courts of the country where the award was rendered. Article III of the New York Convention provides that “Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon”. This was introduced to streamline enforcement process amongst the contracting states. [37] In PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal [2013] SGCA 57 (“PT First Media “), the Singapore Court of Appeal held as follows: “[62] This trend towards the uniform treatment of awards generally in fact began with the New York Convention which did away with the double exequatur rule prescribed in the 1927 Geneva Convention, under which leave for enforcement (exequatur and the like) was required from both the court of the seat of arbitration and the court of enforcement (when the place of enforcement is different from the seat of arbitration). The seat of arbitration which was influential because of the double exequatur rule therefore became less significant under the New York Convention. In fact, one delegate at the New York Conference considered the New York Convention a “very bold innovation” because of its impact on the double exequatur rule (see Summary Record of the Thirteenth Meeting (E/CONF.26/SR.13, 28 May 1958) at p 3). As Emmanuel Gaillard observed in “International Arbitration as a Transnational System of Justice” in Arbitration – The Next Fifty Years (Albert Jan van den Berg gen ed) (International Council for Commercial Arbitration, Kluwer Law International, 2012) at p 71: The idea that the New York Convention would place the seat of the arbitration at the top of a jurisdictional hierarchy for enforcement purposes is counter to its fundamental objectives. If accepted, it would shift the focus from the award itself, which is the subject matter of the Convention, to the judicial process surrounding the award in the country where it was rendered, and would fly in the face of one of the greatest achievements of the New York Convention. Indeed, one must recall that the drafters of the Convention set out to abolish the requirement of double exequatur, which governed enforcement under the 1927 Geneva Convention on the Enforcement and Recognition of Foreign Arbitral Awards. [emphasis added in italics and bold italics] … [64] The drafters of the Model Law, in aligning the Model Law with the New York Convention, were plainly desirous of continuing this trend of deemphasising the importance of the seat of arbitration. However, there was and is one significant difference between the New York Convention and the Model Law. Unlike the New York Convention which only dealt with enforcement of awards, the Model Law also dealt with the setting aside of awards made in the seat of arbitration by the courts of that seat. This other avenue to challenge domestic awards resulted in the possibility that the enforcement of awards originating from within the jurisdiction of the supervisory court would be treated differently from that of foreign awards. This is where “choice of remedies” becomes significant and forms the crux of this dispute.” [emphasis added] [38] A similar observation was made by the English Court in Dowans Holding SA and another v Tanzania Electric Supply Co Ltd [2012] 1 All ER (Comm) 820 (“Dowans Holding”): “[10] The New York Convention, upon which the 1996 Act is based, contained in almost identical wording the provisions of s 103(2)(f) in art V(1)(e), and s 103(5) is in almost identical terms to art VI. It is common ground that the intention of the New York Convention was to make enforcement of a convention award more straightforward, and in particular to remove the previous necessity for a double exequatur — ie the need, before a convention award could be enforced in any other jurisdiction, for it to be shown that it has first been rendered enforceable in the jurisdiction whose law governs the arbitration (the 'home jurisdiction'—an expression which covers the case both where the law of the seat and the governing law of the arbitration are the same and where (as for example in the Indian Supreme Court decision of Oil and Natural Gas Commission v Western Co of North America AIR 1987 SC 674, to which I shall refer below) the arbitration which had its seat in London was governed by Indian law). See for example what both sides agree is the seminal commentary on the New York Convention, albeit written in 1981, Albert Jan van den Berg The New York Arbitration Convention of 1958, Towards a Uniform Judicial Interpretation p 266: ‘Another improvement of the New York Convention's scheme for enforcement of an award is the elimination of the “double exequatur”. Under the Geneva Convention the party seeking enforcement of an award had to prove that the award had become “final” in the country in which it was made. In practice this could be proven only by producing an exequatur (leave for enforcement or the like) issued in the country in which the award was made. As the party had also to acquire a leave for enforcement in the country in which he sought enforcement, this amounted to the system of “double exequatur”. The thought prevailed at the New York Conference that the acquisition of a leave for enforcement in the country where the award was made was an unnecessary time-consuming hurdle, especially since no enforcement was sought in that country. Moreover, it could lead to delaying tactics on the part of the respondent who could forestall the award becoming final by instituting setting aside procedures in the country in which the award was made. The elimination of the “double exequatur” is achieved in two ways. In the first place, the word “final” is replaced by the word “binding” in order to indicate that it does not include the exequatur in the country of origin (Art. V(1)(e)). In the second place, it is no longer the party seeking enforcement of the award who has to prove that the award has become binding in the country in which the award is made; rather, the party against whom the enforcement is sought has to prove that the award has not become binding.’ … [14] In this case the ICC award is not yet enforceable in its home jurisdiction of Tanzania, because of the unresolved petitions, but Mr Diwan submits that that is of no relevance. At English law, the position was clearly expressed by Steyn J in Rosseel NV v Oriental Commercial and Shipping Co (UK) Ltd [1991] 2 Lloyd's Rep 625, a case in which there was no application pending in New York to set aside or suspend a New York award, but the defendants resisted enforcement on the basis that it had not yet become binding. Expressly cross-referring to the passage in van den Bergh, which I set out at [10], above, Steyn J, in rejecting such submission, stated as follows (at 628): ‘… the New York Convention eliminated the “double exequatur” requirement under the earlier Geneva Convention. Under the Geneva Convention a party who sought to enforce an award, had to prove an exequatur (leave to enforce) issued in the country in which the award was made as well as leave to enforce in the country in which he sought enforcement. The New York Convention abolished the need to obtain leave to enforce in the country where the award was made.’” [emphasis added] [39] Accordingly, it is also the judgment of this Court that the Enforceability Argument has no merits at all. Conclusions [40] In the premises, the Setting Aside Application is dismissed with costs. Dated the 6th day of February 2025 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel: