Nallini Pathmanathan FCJ:

GROUNDS OF JUDGMENT

Introduction

[1]Arbitration allows parties to an international commercial partnership to resolve their disputes according to the agreement they undertook at the outset of their relationship. It envisages familiar rules for dispute resolution, a fair and trusted process and an impartial decision-maker. Essentially the parties to the contract are accorded the freedom to define the contours of their dispute resolution process. However, the adjudicatory aspect of arbitral process is only a part of the entire route that the parties have to undertake. The enforcement of the arbitral award is perhaps the most important part of the process, but remains an obstacle that needs to be traversed. Executing a foreign arbitral award or a foreign judgment requires the winning party to take the judgment to a foreign country’s court system, often to the award debtor’s country where its assets are located. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘New York Convention’) has facilitated the process of executing foreign arbitral awards. But the New York Convention does not address the situation where an award-winning party secures a foreign judgment in the rendering state, i.e. a confirmation judgment that upholds the validity of the arbitral award. How does such a foreign judgment relate to the award itself? In Malaysia, the Reciprocal Enforcement of Judgments Act 1958 (‘REJA’) allows in its definition section for foreign arbitral awards to be registered and enforced vide a judgment which is registered and enforceable in the rendering state. Does this allow the holder of a foreign confirmation judgment to enforce the judgment rather than enforce the arbitral award under the Malaysian Arbitration Act 2005 (‘MAA’)? Or does the MAA prevail over REJA, or does REJA have to be read subject to the MAA, as concluded by the Court of Appeal? Finally, what factors should guide the decision of the Court? What approach should be undertaken when the court reviews the arbitral award? Should it be by way of a de novo hearing or a minimal curial review?

[2]These are but some of the questions that arose in the context of the hearing and disposing of this appeal.

Salient Background Facts

[3]The context in which the dispute between the parties arose is as follows:

[4]The Respondent, incorporated in Johor Bahru, Malaysia, is a supplier of marine bunker fuels. It will be referred to as the Respondent.

[5]The First Appellant, ING Bank NV, which is incorporated in Amsterdam, provides banking services to individuals and corporations globally.

[6]The Second Appellant, O.W. Bunker Far East (Singapore) Pte Ltd, incorporated in Singapore, is involved in the sale, supply and trading of bunkers to supply fuel to ships at hubs and ports. The Second Appellant is a subsidiary of O.W. Bunker & Trading A/S. The parent company, O.W. Bunker & Trading A/S, filed for bankruptcy in the Danish courts. As a consequence, joint receivers were appointed over the Group’s assets. As of 13 November 2014 joint receivers were appointed over the assets of, inter alia, the Second Appellant.

[7]The two Appellants will be referred to collectively as ‘the Appellants’.

[8]ING Bank, the First Appellant, was appointed on behalf of a syndicate of banks to act as a security agent under a revolving borrowing base facilities’ agreement on 19 December 2013, between it and one O.W. Bunker & Trading A/S.

[9]In conjunction with the execution of the facilities agreement, I NG Bank, the First Appellant, also entered into an omnibus security agreement, pursuant to which O.W. Bunker & Trading A/S and its subsidiaries, one of which is the Second Appellant, assigned all their rights, title and interest in any amounts owed to them in respect of supply contracts, to ING Bank, the First Appellant, as assignee. This included the two supply contracts entered into between the Second Appellant and the Respondent, which comprise the subject matter