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This article analyses the judgment of the Federal Court delivered in Kolonel Dr Faiz Azraai bin Abdul Aziz v Mahkamah Tentera Divisyen Keempat Infantri Malaysia [2023] 4 MLJ 78 (“Kolonel Dr Faiz”) on 16 May 2023. This article is also an written update to our initial article entitled “What’s the meaning of “desertion” under Section 54(1)(a) of the Armed Forces Act 1972?”, as the judgment of the Federal Court has only recently become available.
On the 23rd of February 2023, the Federal Court of Malaysia handed down judgment in Pembinaan SPK Sdn Bhd v Conaire Engineering Sdn Bhd-LLC & Anor and another appeal, clarifying the evidentiary requirements relating to the enforcement of foreign judgments by way of a common law action where the foreign country in question is not listed in the First Schedule of the Reciprocal Enforcement of Foreign Judgments Act 1958.
This article seeks to examine the strict requirements that are to be adhered to by parties in seeking to enforce a foreign judgment by way of a common law action in Malaysia.
Although Malaysia has been named as a respondent in four investment treaty claims, no ICSID Awards have so far been enforced against the Government of Malaysia, bearing in mind that Malaysia has no history of expropriation or nationalisation. Notwithstanding the fact that the High Court in von Pezold recognised an ICSID Award rendered against a foreign government, the decision raises the question of how an Award creditor would go about enforcement proceedings against the Government of Malaysia if an ICSID Award were to be rendered against it.
In this article, we explore the first ever decision involving the enforcement of an ICSID award in Malaysia: Elizabeth Regina Maria Gabrielle von Pezold and others v Republic of Zimbabwe.
Malaysia Arbitration Guide 2023
The island of Penang was founded in 1786. Penang subsequently became part of the Straits Settlements comprising Penang, Malacca and Singapore. In 1874, the British entered into treaty arrangements with the Sultans of the Malay States, and British protection was extended to the whole of Malaya and the British legal system was introduced to Malaya. The Arbitration Ordinance XIII of 1809 of the Straits Settlements was Malaysia’s first piece of arbitration legislation. This Ordinance was then replaced in Penang and Malacca by The Arbitration Ordinance 1890. In 1950, the Arbitration Ordinance 1950 replaced the 1890 Arbitration Ordinance for all the States of the then Federation of Malaya. The 1950 Ordinance was based on the English Arbitration Act of 1889. British North Borneo and Sarawak adopted the English Arbitration Act of 1952 as their respective Ordinance in 1952. In 1963, North Borneo and Sarawak joined the Federation of Malaysia. On 1 November 1972, Malaysia adopted the arbitration laws
What Is the Meaning of “Desertion” Under Section 54(1)(a) of the Armed Forces Act 1972?
In this article we discuss a novel issue in respect of the interpretation and meaning to be given to the term “desertion” under Section 54(1)(a) of the Armed Forces Act 1972.
We make disclosure that Tan Sri Dato’ Cecil Abraham, Rishwant Singh and Jules Khor Weizhen of Messrs Cecil Abraham & Partners appeared as counsel for Colonel Dr Faiz Bin Abdul Aziz before the Federal Court of Malaysia in successfully appealing against the decision handed by way of a court martial convened by the Malaysian Armed Forces in convicting him of desertion and dishonourably discharging him.