/akn/my/act/act/1985/320

CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985

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Type: Act
Status: Repealed
Enacted: 1985
Sections: 8
Languages: MS · EN

Quick answer

About this act

CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985 is Malaysia Act, cited as Act 320 1985, currently marked repealed and first recorded in 1985.

Opening note

Preamble

An Act to give effect to the provisions of the Conven-tion on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on the 10th June 1958, and to provide for matters connected therewith or ancillary thereto. BE IT ENACTED by the Duli Yang Maha Mulia Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows:

Section 1

(2)

This Act shall come into force on such date as the Yang di-Pertuan Agong may by notification in the

Gazette appoint.

Section 2

(6)

in pursuance of an arbitration agreement in the territory of a State other than Malaysia, which is a party to the New York Convention;

New York Convention" means the Convention on the Recognition and Enforcement of Foreign Arbitral

Awards adopted by the United Nations Conference on

International Commercial Arbitration on the 10th June 1958 as set forth in the Schedule.

(2)

The Yang di-Pertuan Agong may, by order in the

Gazette, declare that any State specified in the order is a party to the New York Convention, and that order shall, while in force, be conclusive evidence that that

State is a party to the said Convention.

Section 3

S. 2-4]

(2)

Any Convention award which would be enforce-able under this Act shall be treated as binding for all purposes on the persons as between whom it was made and may accordingly be relied upon by any of those persons by way of defence, set-off or otherwise in any legal proceedings in Malaysia and any references in this

Act to enforcing a Convention award shall be construed as including references to relying upon an award.

Section 4

The party seeking to enforce a Convention award must produce-Evidence.

(a)

the duly authenticated original award or a duly certified copy of it; and

(6)

the original arbitration agreement or a duly certified copy of it; and

(c)

where the award is in a language other than the national language or the English language, translation of it in the national language or tne

English language certified by an official Or sworn translator or by a diplomatic or consula agent.

S. 51

cONVENTION ON 1HE RECOGNTmON AND ENFORCEMENT OF

FOREIGN ARBITRAT AWARDS

Section 5

(a)

that a party to the arbitration agreement was, under the law applicable to him, under some incapacity; or

(b)

that the arbitration was not valid under the law to which the parties subjected it or, failing anyy indication thereon, under the law of the country where the award was made; or

that he was not given proper notice of the appointment of the arbitrator or of the arbitra-ion proceedings or was otherwise unable to present his case; or

(d)

subject to subsection (3), that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitra-tion; or

that the composition of the arbitral authority or that the arbitral procedure was not in accor-dance with the agreement of the parties or, failing such agreement, with the law of the country where the arbitration took place; or

() that the award has not yet become binding onn the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

(2)

Enforcement of a Convention award may also be refused if the award is in respect of a matter which

S not capable of settlement by arbitration, or if it

Would be contrary to public policy to enforce the award.

(3)

A Convention award which contains decisions on matters not submitted to arbitration may be enforced to the extent it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted.

S. 5-61 8

(4)

If the court before which a Convention award 1S Sought to be relied upon is satisfied that a application for the setting aside or suspension of the award has been referred to in paragraph (f) of subsection (1), the court may, if decision on the enforcement of the award and may also, on the application of the party claiming enforce-ment of the award, order the other party to give suitable security.

made to a competent authority it considers it proper, adjourn the

Section 6

(2)

This section applies to any arbitration agreement which is not a domestic arbitration agreement and section 6 of the Arbitration Act 1952 shall not apply to an arbitration agreement to which this section applies.

(3)

In this section, "domestic arbitration agreement"

means an arbitration agreement which does not provide, expressly or by implication, for arbitration in a State other than Malaysia and to which neither

(a)

an individual who is a national of, or habitually resident in, any State other than Malaysia; nor

6) a body corporate which is incorporated in, or whose central management and control is exercised in, any State other than Malaysia,

1s a party at the time the proceedings are commencea.

Schedule]

cONVENTION ON THE RECOGNITION AND ENFORCEMENT OF

FOREIGN ARBITRAL AWARDSs

Schedule

(Section 2)

CONVENTION ON THE RECOGNITION AND ENFORCE

MENT OF FOREIGN ARBITRAL AWARDS 1958

ARTICLE I

This Convention shall apply to the recognition and enforce-ment of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the recognition and enforcement are sought.

State where their

The term "arbitral awards" shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted.

When signing, ratifying or acceding to this Convention, or notifying extension under article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commereial under the national law of the State making such declaration.

ARTICLE II

.Each Contracting State shall recognise an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject-matter capable of settlement by arbitration.

2. The term "agreement in writing" shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.

The court of a Contracting State, when seized of an action

In a matter in respect of which the parties have made an agree-ment within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

ARTICLE III

Each Contracting State shall recognise arbitral awards as binding nd enforce them in accordance with the rules of procedure of ne territory where the award is relied upon, under the conditions ldd down in the following articles. There shall not be imposed

Schedule)

ACT 320 10

substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards

ARTICLE IV

Tp obtain the recognition and enforcement mentioned in the precedingarticle, the party applying for recognition and enforce-ment shall, at the time of the application, supply:

(a)

the duly authenticated original award or a duly certified copy thereof;

(b)

the original agreement referred to in article II or a duly certified copy thereof.

If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an oficial or sworn translator or by a diplomatic or consular agent.

ARTICLE V

Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recogni-tion and enforcement is sought, proof that:

(a)

the parties to the agreement referred to in article II were under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b)

the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unabie to present his case; or

(c)

the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitra-tion, or it contains decisions on matters beyond the Scope of the submission to arbitration, provided that if the decisions on matters suubmitted to arbitration can De separated from those not so submitted, that part of _tne award which contains decisions on matters submitted o arbitration may be recognised and enforced; or

the composition of the arbitral authority or the arbitra procedure was not in accordance with the agreement the parties, or, failing such agreement, was not in acco dance with the law of the country where the arbitration took place; or

ISchedulel cONVENTION ON THE RECOGNITION AND ENFORCEMENT OF

FOREIGN ARBITRAL AaWARDS

(e)

the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recog-nition and enforcement is sought finds that:

(a)

the subject-matter of the difference is not capable of settlement by arbitration under the law of that country; or

(6)

the recognition or enforcement of the award would be contrary to the public policy of that country.

ARTICLE VI

If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article

V1) (), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.

ARTICLE VII

The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by, the law or the treaties of the country where such award is sought to be relied upon.

The Geneva Protocol on Arbitratión Clauses of 1923 and the

Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound by this Convention.

ARTiCLB VIII

This Convention shall be open until 31st December 1958 for

Signature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes membeT of any specialized agency of the United Nations, or which is or hereafter becomes a party to the Statute of the

International Court of Justice, or any other State to which an

Invitation has been addressed by the General ASsembly of the

United Nations.

2. This Convention shall be ratified and the instrument of ratification shall be deposited with the Secretary-General of the

United Nations.

Schedulel 12

ARTICLE IX

This Convention shall be open for accession to all States referred to in article VIlI.

Accession shall be etfected by the deposit of an instrumentof accession with the Secretary-General of the United Nations.

ARTICLE X

1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the

Convention enters into force for the State concerned.

2. At any time therealter any such extension shall be made by notification addressed to the Secretary-General of the United

Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the

Convention for the State concerned, whichever is the later.

With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend

Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories.

the application of this

ARTICLE XI

In the case of a federal or non-unitary State, the following provisions shall apply:

(a)

with respect to those articles of this Convention that come within the legislative jurisdiction of the federal authority the obligations of the federal Government shall to this extent be the same as those of Contracting States wheu are not federal States;

(b)

with respect to those articles of this Convention that come within the legislative jurisdiction of constituent States o

Provinces which are not, under the constitutional syste of the federation, bound to take legislative action, federal Government shall bring such articles witn favourable recommendation to the notice of the appot priate authorities of constituent States or Provinces the earliest possible moment;

(c)

a federal State party to this Convention shal, at t request of any other contracting State transmitted thro the Secretary-General of the United Nations, suppnd statement of the law and practice of the federaision its constituent units in regard to any particulat ct bas of this Convention, showing the extent to whicn eition been given to that provision by legislative or other acu

4ehedule 3

AMnA

AWAND

ARTICLU XII

This Convention shnll come into force on the ninetieth day tollowing the date ol depost of the third instrument of ratitieatiom

(NcCeNiON,

For cach State ralilying or ncceding to this Convention after the deposit of the third instrumcnt of ratification or acession, this Convention shall cnter into force on the nineticth day after depovit by Nuch State ol its instrument of ratitieation or ucccmiom.

ARTICLH XIL

Any Contracting Statc muy denouncc thi» Convention by a written notificntion to the Seerctary-Gicneral of the Unted Natíons.

Denunciation shall tuke clfcet one ycar afler the dute of reccipt of the notification by the Sceretary-CGeneral,

Any Slate which has mude a declaration or notificaton under articlc X may. at any time thereafter by notifieation to the

Sccrctary-Gencral of the United Nations, declarc that this Con-vention shall cusc to cxtend to the territory concerned one ycar after the date of the receipt of the notification by the Secretary-General.

This Convention shall continuc to be applicable to arbitral awards in rcspect of which recognition or enforcement procecdings have bcen instituted before the denunciation takes cífect,

ARTICLE XIV

A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States cxcept to the cxtent that it is itself bound to apply thc Convention.

ARTICILE XV

The Secrclary-ieneral of the Uniled Nations shall notify the

States contemplated in article VIII of the following

(a)

Signatures and ratifications in uccordunce with article VIlI;:

(b)

Accessions in accordance with article IX;

(c)

Declarations and notifications under articles I, X and XI;

(d)

The dale upon which this Convention enters into force in accordance with article XII;

(e)

Denunciations and notifications in accordance with article

XIII

Schedule

Schedule 14

ACT 3200

ARTICLE XVI

This Convention, of which the Chinese, English, French

Russian and Spanish texts shall _be equally authentic, shall deposited in the archives of the United Nations.

The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the states contemplatedin article XIII.

DICETAK OLEH HAJI MOKHTAR SHAMSUDDIN, J.s.D., S.M.T., K.M

***

ETOA PENGARAH PERCETAKAN NEGARA, KUALA LUMPUR

DENGAN PERINTAH PADA 30HB MEI 1985

Harga: $1.50

Common questions

What is CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985?: CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985 is Malaysia Act, cited as Act 320 1985, currently marked repealed and first recorded in 1985.
Is CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985 still in force?: No — CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985 has been repealed.
When did CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985 take effect?: CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985 was first recorded in 1985.
How many sections does CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985 have?: CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985 contains 6 sections.
Where can I read the official version of CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985?: The official text of CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS ACT 1985 is published at lom.agc.gov.my.