Enforcing Foreign Judgments in Malaysia

For cross-border transactions, any arising disputes may have to be resolved in a foreign court.

If you obtain a foreign judgment, you may want to go after the judgment debtor who has assets within Malaysia. But a foreign judgment is not immediately enforceable in Malaysia.

Under the law, a foreign judgment can be enforced in two ways.

First, if the foreign judgment is from a reciprocating country under the Reciprocal Enforcement of Judgments Act 1958 (“REJA“), the foreign judgment can be directly enforced and executed by the Malaysian Courts. There are only limited defences available to oppose enforcement under section 5 of the REJA.

However, the process can be more cumbersome if the foreign judgment is not from a reciprocating country under the REJA.

Recently, the Federal Court discussed extensively the second method in Pembinaan SPK Sdn Bhd v Conaire Engineering Sdn Bhd -LLC & Anor [2023] 1 LNS 269. It was held that a foreign judgment can be admitted as evidence of debt. The judgment creditor can then sue the judgment debtor for the debt in the foreign judgment.

But before the foreign judgment in that case could be admitted as evidence, the Federal Court looked at various provisions of the Evidence Act 1950 (“EA 1950“) to ascertain if the conditions were satisfied.

Facts

The Plaintiff obtained a Judgment in Default in Abu Dhabi.

Abu Dhabi is not a reciprocating country under the REJA.

Nevertheless, the Court proceeded to determine if the Abu Dhabi judgment could be admitted as evidence to prove a debt under the EA 1950. However, the Abu Dhabi judgment turned out to be problematic.

First, the Abu Dhabi judgment was not in English.

Second, there were 4 translations prepared, but the translations were inconsistent. There was even a critical issue as to the identities of the parties, given that the names were in Arabic.

Third, the original copy of the Abu Dhabi judgment was not produced before the Federal Court. Only duplicate copies were attached together with the translations.

Fourth, there was only a seal at the bottom of the Abu Dhabi judgment. However, apart from the words “JUDICIAL DEPARTMENT”, the rest were in Arabic. The Abu Dhabi judgment was also not certified, verified, or authenticated.

The Law

The Abu Dhabi judgment was a public document as provided under section 74 of the EA 1950:

The following documents are public documents:

(a) documents forming the acts or records of the acts of-

(i) the sovereign authority;

(ii) official bodies and tribunals; and

(iii) public officers, legislative, judicial and executive, whether Federal or State or of any other part of the Commonwealth or of a foreign country; and

(b) public records kept in Malaysia of private documents.

Being a public document, the Abu Dhabi Judgment, if the original copy was produced, could be admitted as primary evidence under section 62 of the EA 1950.

However, since only the duplicate copy was produced, it must comply with section 78(1)(f) of the EA 1950.

Section 78(1)(f) of the EA1950 reads:

(1) The following public documents may be proved as follows:

(f) public documents of any other class in a foreign country-

by the original or by a copy certified by the lawful keeper thereof, with a certificate under the seal of a notary public or of a consular officer of Malaysia that the copy is duly certified by the officer having the lawful custody of the original and upon proof of the character of the document according to the law of the foreign country.

Alternatively, the duplicate copy of the Abu Dhabi judgment could be admitted if the presumption under section 86 of the EA 1950 was engaged. Section 86 of the EA 1950 states:

The court may presume that any document purporting to be a certified copy of any judicial record of any country not being a part of the Commonwealth is genuine and accurate if the document purports to be certified in any manner which is certified by any representative of the Yang di-Pertuan Agong in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.

For the Abu Dhabi judgment, neither section 78 nor 86 of the EA 1950 was satisfied.

Thus, the Federal Court held that without the Abu Dhabi judgment as evidence, the Plaintiff’s claim remained unproved and, as such, should be dismissed.

Key Takeaways

Foreign judgments can essentially be enforced in two ways. If the foreign judgment is from a reciprocating country under the REJA, the process is much simpler as the REJA allows direct execution. However, even if it is not from a reciprocating country, it is still possible to admit the foreign judgment as evidence of an outstanding debt. In this scenario, the provisions under the EA 1950 must be strictly complied with.