Hj. Abu Mansor bin Ali J:

By the plaintiff's application in enclosure (2) the plaintiff applied to have registered a foreign judgment which was the enforcement of an Arbitrator's Award exhibit "A-6" attached to enclosure (1). At the hearing of the arbitration proceedings the respondent did not appear despite due notice.

The debt arose as a result of distribution agreement entered between the defendant and Harris Corporation. The agreement was on 15 April 1987 and signed by the plaintiff in the United States and the defendant in Kuala Lumpur. As a result of products delivered by Harris Corporation to Perkom Sdn. Bhd., the defendant became indebted to Harris Corporation in the sum of RM538,000, the sum of the Award.

Thereafter by an agreement dated the 9 January 1990 Harris Corporation sold all their interest in this division of their business and assigned all their rights to the plaintiff Harris Adacom Corporation. The said agreement underwent some amendment as in "A-3" (pages 28 - 37).

There were exchange of letters after the assignment, between the defendant and Harris Corporation, and between the plaintiff personally and the respondent. When the respondent failed to pay the debt to the plaintiff, the plaintiff then went to arbitration in accordance with Clause 15.4 (page 13) enclosure (1) of the Distributorship Agreement which reads:

15.4 Any dispute arising out of or relating to this Agreement, its construction or performance shall be finally settled by arbitration in accordance with the rules of the American Arbitration Association in Washington, D.C.

As stated the defendant did not appear at the arbitration and an Award was made in terms of exhibit "A-6".

Applicant's Counsel submitted that the distributorship cannot be assigned without the agreement of Harris Corporation but Harris Corporation itself can assign their rights even if it is incidental to the sale of its business and thereafter Harris Corporation informs the defendant (Perkom) of it.

After the Award the plaintiff is now taking steps to register the said Award in Malaysia under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985 .

It is common ground that this is a Convention and if leave can be obtained, the Award is similarly enforceable as in s. 27 Arbitration Award and judgment may be so entered. So in the originating summons the present applicant seeks to enforce this Award and to enter judgment.

It is not disputed that the plaintiff in their application have complied with all the requirements of s. 3 and s. 4 of the 1985 Act but, however under s. 5 of the Act the enforcement of a Convention Award may be refused if the person against whom it is invoked proves one of the various factors set out therein s. 5(1)(a) to (f) .

The applicant submitted that the burden is on the defendant as it is against the defendant the Convention Award is to be invoked. It is applicant's submission that the defendant have not proved the five instances set out in s. 5 for the Court to exercise its discretion not to enforce the Award.

In anticipation the applicant argued that the defendant wanted to raise that the defendant as a party was under some incapacity under s. 5(1)(a) and the defendant wants to say that it would be contrary to public policy to enforce the Award. The applicant denied that the defendant can raise these two reasons.

The defendant says that it would be contrary to public policy to have the Convention Award enforced because the plaintiff is an Israeli registered company having 68% of its shares owned by an Israeli company. I find no merit in this argument of the defendant. The defendant also contends that the plaintiff have also registered this Award in the Superior Court of Columbia and thereafter on the same day applied to this Court. There is the defendant's allegation that the assignment is invalid, void and of no effect because due notice had not been given to the defendant.

On the validity of the