Enforcing Foreign Judgments in Malaysia: REJA and Common Law

Overview of Enforcement Options

Winning a court judgment or arbitral award overseas is only half the battle. If the defendant's assets are in Malaysia, you will need to enforce that judgment or award here. Malaysian law provides distinct pathways depending on whether you hold a foreign court judgment or a foreign arbitral award.

For foreign court judgments, two routes exist: statutory registration under the Reciprocal Enforcement of Judgments Act 1958 (REJA), or a common law action on the judgment debt. For foreign arbitral awards, enforcement proceeds under the Arbitration Act 2005.

Registration Under the Reciprocal Enforcement of Judgments Act 1958

Which Judgments Qualify

REJA applies only to judgments from countries that have been gazetted as reciprocating countries. The list in the First Schedule is short. It includes the United Kingdom, Hong Kong, New Zealand, Sri Lanka, India (excluding certain states) and Brunei. Only judgments of the courts named there for each country can be registered. If the foreign judgment originates from a country not on this list, registration under REJA is unavailable.

To qualify for registration, the judgment must be:

• A judgment of a superior court in a reciprocating country
• Final and conclusive between the parties
• For a sum of money (not being a sum payable in respect of taxes, fines, or penalties)

The Registration Process

An application to register a foreign judgment under REJA must be made to the High Court within six years from the date of the judgment (or of the last appeal decision). The application is made ex parte, supported by an affidavit exhibiting a certified copy of the judgment and evidence that the judgment is enforceable in the country where it was given.

Once registered, the foreign judgment has the same force and effect as if it had been a judgment originally given by the Malaysian High Court. The judgment creditor may then use standard enforcement mechanisms such as writs of seizure and sale, garnishee proceedings, or bankruptcy and winding-up petitions.

Grounds for Setting Aside Registration

The judgment debtor may apply to set aside the registration. REJA specifies several grounds, including:

• The original court lacked jurisdiction
• The judgment debtor did not receive proper notice of the proceedings
• The judgment was obtained by fraud
• Enforcement would be contrary to Malaysian public policy
• The rights under the judgment are not vested in the applicant

If the court sets aside the registration, the judgment creditor may still pursue enforcement through a common law action.

Common Law Action on the Judgment

When This Route Applies

If the foreign judgment comes from a non-reciprocating country—such as the United States, China, or most other jurisdictions—registration under REJA is not possible. The judgment creditor must instead commence a fresh civil suit in Malaysia, treating the foreign judgment as creating a debt obligation.

This is not a re-litigation of the original dispute. Under the common law, a foreign judgment for a definite sum creates a legal obligation on the judgment debtor to pay that sum. The Malaysian court does not re-examine the merits of the underlying case.

Requirements for Success

To succeed in a common law action on a foreign judgment, the judgment creditor must establish that:

• The foreign court had jurisdiction over the judgment debtor according to Malaysian private international law rules
• The judgment is final and conclusive
• The judgment is for a definite sum of money

Jurisdiction is typically established by showing that the judgment debtor was present in the foreign country at the time proceedings were commenced, or that the judgment debtor submitted to the jurisdiction of the foreign court.

Defences Available

The judgment debtor may resist enforcement by proving that:

• The foreign court lacked jurisdiction under Malaysian conflict of laws principles
• The judgment was obtained by fraud
• Enforcement would be contrary to natural justice or Malaysian public policy
• The proceedings in which the judgment was obtained were contrary to an agreement to settle disputes otherwise than by court proceedings

If none of these defences apply, the Malaysian court will give judgment in favour of the judgment creditor, which can then be enforced like any local judgment.

Enforcement of Foreign Arbitral Awards

The Arbitration Act 2005 and the New York Convention

Foreign arbitral awards are recognised and enforced under sections 38 and 39 of the Arbitration Act 2005, which gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, commonly known as the New York Convention. Malaysia became a party to the New York Convention in 1985.

The enforcement regime for foreign arbitral awards is generally more favourable to award creditors than the regime for foreign court judgments. The New York Convention has been adopted by over 170 countries, meaning that arbitral awards from most major trading nations can be enforced in Malaysia.

Recognition and Enforcement Procedure

To enforce a foreign arbitral award, the award creditor applies to the High Court under section 38 of the Arbitration Act 2005. The applicant must produce:

• The duly authenticated original award or a certified copy
• The original arbitration agreement or a certified copy

If these documents are not in English or Malay, certified translations must be provided. Once recognised, the award may be enforced in the same manner as a judgment of the High Court.

Grounds for Refusing Recognition

Section 39 of the Arbitration Act 2005 sets out limited grounds on which recognition and enforcement may be refused. These mirror Article V of the New York Convention and include:

• Incapacity of a party or invalidity of the arbitration agreement
• Lack of proper notice of the arbitration or inability to present the case
• The award deals with matters beyond the scope of the submission to arbitration
• The composition of the tribunal or the arbitral procedure was not in accordance with the parties' agreement or the law of the seat
• The award has not yet become binding, or has been set aside or suspended by a court of the seat
• The subject matter is not capable of settlement by arbitration under Malaysian law
• Enforcement would be contrary to Malaysian public policy

Malaysian courts have generally adopted a pro-enforcement approach to foreign arbitral awards, consistent with the objectives of the New York Convention.

Practical Considerations

Before commencing enforcement proceedings, it is prudent to conduct asset searches to confirm that the judgment debtor or award debtor has assets in Malaysia that can be seized or attached. Enforcement is only meaningful if there are realisable assets within the jurisdiction.

Time limits apply. Under REJA, an application to register must be made within six years. Common law actions and applications to enforce arbitral awards are also subject to limitation periods under the Limitation Act 1953 (or the equivalent law in Sabah and Sarawak), so check the deadline early and act promptly.

Where a foreign judgment or award is in a currency other than Ringgit Malaysia, conversion into Ringgit may need to be addressed, and the approach can differ between the routes.

Common questions

Can I enforce a US court judgment in Malaysia?

Yes, but not through registration. The US is not a reciprocating country under REJA, so you must bring a common law action treating the judgment as a debt.

How long do I have to enforce a foreign judgment in Malaysia?

Under REJA, you must apply within six years of the judgment. For common law actions, a limitation period also applies, so check the deadline early.

Is it easier to enforce a foreign arbitral award than a foreign court judgment?

Generally, yes. The New York Convention applies to awards from over 170 countries, and Malaysian courts adopt a pro-enforcement approach with limited grounds for refusal.

What if the judgment debtor challenges registration of my foreign judgment?

The debtor may apply to set aside registration on grounds such as fraud, lack of jurisdiction, or public policy. If successful, you may still pursue a common law action instead.

Do I need the original arbitration agreement to enforce a foreign award?

You need the original or a certified copy of the arbitration agreement, along with the authenticated award and certified translations if the documents are not in English or Malay.