Sri Lanka Cricket v World Sport Nimbus Pte Ltd (2 CLJ 316)
This case concerned the construction of Section 2(2) of the Foreign Arbitral Awards Convention Act. Section 2(2) provides as follows:
“s.2(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 the State is a party to the said Convention.“
No such Official Gazette notification was issued by the Yang Di Pertuan Agong under Section 2(2) in respect of any of the contracting states to the New York Convention or the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (each a ‘convention state’).
In Sri Lanka Cricket the Court of Appeal, faced with an application for the registration and enforcement of a Singapore arbitral award, held that as Singapore had not been gazetted as a convention state under the Foreign Arbitral Awards Convention Act, the award could not be summarily enforced under the act. The Court of Appeal took comfort in the fact that there was other recourse to enforce the award in Malaysia. The first option was to have the award registered as a judgment in the jurisdiction in which the award was made and seek its enforcement in Malaysia under the provisions of the Reciprocal Enforcement of Judgments Act 1958. The second option was to sue under the award in a common law action.
These proposed modes of enforcement provided little relief as they were clearly not the ‘quick fix’ that the international community were looking for in order to have similar disputes resolved.
The Reciprocal Enforcement of Judgments Act recognises judgments of only a limited number of Commonwealth jurisdictions and is capable of enforcing only monetary judgments, leaving claimants without recourse in respect of non-monetary claims.
A common law action in Malaysia on the award does not strictly limit the defences available to impugn the award as would have been prevented by the New York Convention, leaving the claimant possibly with the task of having to deal issues already determined in the arbitration.