Arifin Zakaria CJ (Malaya):

Introduction

[1] This appeal is directed against the order of the Court of Appeal on 28 January 2008 which set aside the appellant's registration of a final arbitration award dated 10 July 2002 for the sum of USD135,623.96 ("the said award").

Background Facts

[2] The facts are not in dispute. They are as follows: The appellant commenced an arbitration proceeding against the respondent in London for demurrage in the sum of USD135,623.96 together with interest and costs.

[3] The action was commenced pursuant to an arbitration agreement contained in cl. 30 of the additional clauses to the charter party dated 22 September 2000 between the appellant and the respondent, which by the same clause was expressed to be governed by English law.

[4] The appellant appointed Mr. David Barnett as the arbitrator. The respondent, had failed, neglected and/or refused to appoint an arbitrator. Mr. David Barnett was appointed as the sole arbitrator pursuant to s. 17 of the United Kingdom's Arbitration Act 1975.

[5] On 10 July 2002, Mr. David Barnett awarded and adjudged that the respondent was to pay the appellant the sum of USD135,623.96 together with interest on the said sum at the rate of 7% per annum compounded with quarterly rests.

[6] The appellant filed an application at the High Court pursuant to s. 27 of the Arbitration Act 1952 to enforce the said award.

The Decision Of The High Court

[7] The learned High Court Judge gave leave and ordered the enforcement of the said award against the respondent in reliance on s. 27 of the Arbitration Act 1952 and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985 ("CREFA").

The Contentions Before The Court Of Appeal

[8] The respondent filed an appeal at the Court of Appeal. It was argued for the first time in the Court of Appeal that the said award is unenforceable on the ground that United Kingdom has not been gazetted under s. 2(2) of the CREFA.

[9] The appellant, on the other hand, contended that the said provision does not make it mandatory for a gazette notification to be issued before a state can qualify as a Contracting State under the New York Convention ("NYC").

The Decision Of The Court Of Appeal

[10] On 28 January 2008, the Court of Appeal allowed the appeal by the respondent. The appellant's registration of the said award was set aside on the basis that since no gazette notification has been issued by the Yang di-Pertuan Agong under s. 2(2) of the CREFA declaring that the United Kingdom is a Contracting State under the NYC, the said award cannot be registered and enforced as a Convention Award under CREFA. In coming to this conclusion, the Court of Appeal relied on its earlier decision in Sri Lanka Cricket v. World Sport Nimbus Pte Ltd [2006] 2 CLJ 316.

Leave Questions

[11] On 8 September 2008, leave to appeal was granted by this court to the appellant on the following questions of law:

[a] Whether the failure to declare the United Kingdom as a party to the New York Convention by way of Gazette Notification under s. 2(2) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985 (Act 320) prevents the recognition and enforcement in Malaysia under the Act (Act 320) of an arbitral award handed down in the United Kingdom;

[b] Whether the Court of Appeal acted correctly in law in holding that the failure to declare United Kingdom by order in the Gazette as a Contracting State to the New York Convention deprives the High Court of Malaya of jurisdiction pursuant to s. 3 of the Convention Recognition and Enforcement of Foreign Arbitral Awards Act 1985 to enforce an award handed down by Arbitral Tribunal whose seat of arbitration was in the United Kingdom in an arbitration governed by the New York Convention;

[c] Whether the definition of a 'Convention Award' under s. 2(1) must be read together with s. 2(2) for purpose of enforcement under s. 3 of the Convention Recognition and Enforcement of Foreig