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The recognition and enforcement of foreign arbitral awards in Malaysia: has the New York Convention 1958 achieved its goal of harmonising laws of its contracting states?

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Version 2 2024-03-24, 11:46
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thesis
posted on 2024-03-24, 11:46 authored by Iyllyana Che Rosli

The New York Convention on the Recognition and Enforcement of Foreign Awards 1958 (NYC 1958) is one of the most successful international treaties, with 168 Contracting States to date. The NYC 1958 governs the recognition and enforcement of arbitration agreement and foreign arbitration awards. Using a doctrinal methodology, this thesis investigates harmonisation in the implementation and application of NYC 1958 on the recognition and enforcement of foreign arbitral awards with Malaysia as a case study. First , the thesis ascertains the standards of harmonisation expected in the implementation of NYC 1958 by Contracting States. Second, the thesis investigates the regulatory framework governing the recognition and enforcement of foreign arbitral awards in Malaysia. Third, the thesis critically analyses whether there is harmonisation on controversial issues regarding the recognition and enforcement of foreign awards by the Contracting States, specifically on the enforcement of the annulled arbitral award, allocation of the onus of proof and failure to challenge an award before a supervisory seat. Fourth, the thesis evaluates the position of the controversial issues in Malaysia. The standard of harmonisation expected of NYC 1958 is for Contracting States to interpret and apply NYC 1958 uniformly. The thesis finds that there is no harmonisation in the application of NYC 1958 on the controversial issues by Contracting States. It discovers that Contracting States’ courts have adopted distinct approaches in the interpretation and application of NYC 1958. The thesis also finds that Section 39(1)(a)(vi) of the Malaysian Arbitration Act 2005 departs from Article V(1)(a)(d) of NYC 1958 and proposes amendments to it. The amendment is important for Malaysia to conform to its ob ligations as a Contracting State of NYC 1958 and to harmonise the implementation of Article V(1)(d) of NYC 1958. While the thesis evaluates Malaysian position on the controversial issues, it finds that two of the three controversial issues are yet to see Malaysian courts. It proposes recommendations for the Malaysian courts, should cases involving the controversial issues arise in Malaysia.

History

File Version

  • Published version

Pages

233

Department affiliated with

  • Law Theses

Qualification level

  • doctoral

Qualification name

  • phd

Language

  • eng

Institution

University of Sussex

Full text available

  • Yes

Supervisor

Dr Kamala Dawar and Dr Ahmad Ghouri

Legacy Posted Date

2022-02-24

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