Final - Assignment - Enforcement of Foreign Arbitral Awards and Foreign Judgment

GROUP ASSIGNMENT
Student Name: LIANG CHOR SOON & TANG LEE YEE
Student ID: LQB190017 & LQB180006
Name of module: CIVIL LITIGATION
Name of Lecturer: PROF. DR. CHOONG YEOW CHOY
Module code: L Q B 7 0 1 0
Title: THE EXPANSE AND REACH OF PUBLIC POLICY IN RELATION TO THE ENFORCEMENT
OF FOREIGN ARBITRAL AWARDS AND FOREIGN JUDGMENTS
Due date: 15 JUNE 2020
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Signed: Date:
29th May 2020

Name: Liang Chor Soon & Tang Lee Yee LQB 7010 Civil Litigation
Matric No.: LQB190017 & LQB180006
TITLE: The Expanse and Reach of Public Policy in Relation to the Enforcement of
Foreign Arbitral Awards and Foreign Judgments.
A foreign arbitral award is rendered by an individual or private arbitral body from

another country other than the country where the recognition and enforcement of award is
sought whereas a foreign judgment is rendered by a court from foreign country other than the
country of the enforcing court. In order to give full effect to the foreign arbitral award and
foreign judgments, the same are required to be recognized and enforced in the enforcing court
of the country against whom the award or judgment sought to be enforced. However, there are
circumstances in which the recognition and enforcement of the foreign arbitral awards and
foreign judgment can be set aside or refused. The focus of this paper is on the invocation of
public policy by a party as a ground for preventing the recognition and/or enforcement of a
foreign arbitral award and foreign judgment. An analysis of cases in different jurisdictions for
instance United States, Civil Law Countries (in respect of foreign arbitral award), Hong Kong,
Singapore and Malaysia will be analyzed in-depth as to determine to what extent the court
adhere public policy defense in relation to the enforcement of foreign arbitral awards and
foreign judgments. For the ease of understanding, the discussion of this topic is divided into
two parts among others (i) Public Policy Defense in relation to Enforcement of Arbitral Awards
and (ii) Public Policy Defense in relation to Enforcement of Foreign Judgments.
 Public Policy Defense in relation to Enforcement of Foreign Arbitral Awards
Introduction
Arbitration is a popular alternative dispute resolution for trans-border and international
commercial transaction.1 An arbitrator is a decision maker like judge but private person who
resolves conflict between the parties. The primary advantage of international arbitration over
court litigation is the enforceability of arbitral awards as it is enforceable in most countries.2 It
would hardly serve any purpose to have a mechanism like international arbitration if the awards
were not effectively enforced against the losing party. After an award is passed by the arbitral
tribunal, there is every possibility that the losing party may refuse to honour that award. In such
1
Pretam Singh s/o Darshan Singh, Enforcement of Foreign Judgments and Arbitral Awards in Domestic Civil
Courts [2010] 4 MLJ xxix.
2
Ibid.
1
a situation the winning party is left with no other recourse than to seek recognition and
enforcement of the award in the state or country where the assets of the losing party is located.3
The New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (1958) strengthens commercial arbitration as it guarantees and ensures worldwide
enforceability of foreign arbitral award. Having said that, it is important at this juncture to
appreciate and note that this universal enforceability is not absolute in nature. The
enforceability of foreign arbitral awards may be refused by the court where the enforcement is
sought on grounds provided under Article V of the New York Convention. 4 According to
Article V(2)(b) of the New York Convention:-
“2. Recognition and enforcement of an arbitral award may also be refused if

the competent authority in the country where recognition and enforcement
is sought find that:
(a) […]
(b) The recognition or enforcement of the award would be contrary to the
public policy of that country.”
“Public Policy” is one of the grounds provided in Article V(2)(b) of the New York
Convention as well as Article 36(1)(b) in the Model Law which is often invoked in the national
courts to challenge or refuse the enforcement of arbitral awards if such enforcement “would be
contrary to the public policy”5 of the country or state in which the enforcement is sought. What
makes it more complicated is the lack of a common and universal definition of public policy
on its application, as the same varies from country to country and state to state.
Definition of Public Policy

In the absence of a conventional or statutory definition of public policy, it is therefore
up to the state courts to define and interpret public policy.6 This could be narrow interpretation,
refusing to enforce the foreign arbitral award only if it is contrary to “the most basic notion of
3
Dar, Wasiq Abass. "Understanding Public Policy as an Exception to the Enforcement of Foreign Arbitral Awards:
A South-Asian Perspective." European Journal of Comparative Law and Governance 2, no. 4 (2015): 316-350,
at 317
4
Id at 318.
5
Article V(2)(b) of the New York Convention and Article 36(1)(b) of UNCITRAL Model Law.
6
Hollander, Pascal. "Report on the Public Policy Exception in the New York Convention." Disp. Resol. Int'l 10
(2016): 35.
2
morality and justice”.7 However, court in some countries interpret public policy in a broad
manner to include violation of the national laws and regulations of the state concerned.8
Each state has its own public policy concepts, objects, values and rules which shall
provide protection against the negative effects of foreign law.9 The meaning of public policy
differs from State to State. In fact, it can happen that even within the territory of a state the
scope of public policy may vary. A court may refuse enforcement of an foreign award because
of public policy consideration and later in a case involving similar circumstances, the same
court or any other court within the same country may allow enforcement. This is because the
lack of world-wide accepted definition of public policy and the courts have kept on taking U-
turns in their understanding of public policy.
Generally, public policy, as is understood, reflect the fundamental legal, moral, political,
religious, social and economic standards of a state.10 Winfield has defined public policy as “a
principle of judicial legislation or interpretation founded on the current needs of the
community11”. He has basically tried to suggest that public policy must be flexible and adapt
to community’s changing interest, whereby ‘community’ they are referring to the public at
large.12
Domestic Public Policy, International Public Policy, Multinational Public Policy &
Transnational Public Policy
In the context of recognition and enforcement of foreign arbitral awards, public policy
is mainly categorized into domestic public policy and international public policy.13 However,
there are a few jurisdictions have adopted the concept of multinational public policy or
transnational public policy in relation to enforcement of foreign arbitral award.
Being contrary to domestic public policy is related to the violation of the public policy
of the state concerned, and this can be interpreted as a violation of the national laws and
regulations or the national interest of the state concerned.
7
William W. Park, “When The Borrower and the Bankers are at Odds the Interaction of Judge and Arbitration
in Trans-Border Finance”, Tulane Law Review 65 (1991): 1354.
8
Radjagukguk, Erman. "Implementation of the 1958 New York Convention in Several Asian Countries: The
Refusal of Foreign Arbitral Awards Enforcement of the Grounds of Public Policy." Indon. L. Rev. 1 (2011): 1.
9
Batha Tecle Hagos, Recognition and Enforcement of Foreign Arbitral Awards in Civil and Commercial
Matters in Ethiopia. 5 Mizan L. Rev 105, 2011 at 133.
10
Supra note 3 at 321.
11
J. Tarlinton, ICA & Public Policy: With Principle Reference to the Laws of Australia, France, Switzerland, the
United Kingdom and the United States (PhD Thesis Sydney: University of Technology, 2003).
12
Ibid.
13
Supra note 8 at 2.
3
Foreign arbitral awards, for instance, are not recognized if the agreement containing
such arbitration clause is contrary to the laws of the country concerned, or illegal based on the
law of the country concerned,14 or if the enforcement of such arbitral award is harmful for “the
national interest, including the local economy”.15
Domestic public policy could be understood as, the fundamental standards of morality
and justice applied by the national courts in purely domestic disputes.
International public policy can be understood as the fundamental notions of morality
and justice that are applied by the national courts of a state in cases where transactions and
relationship involve a foreign element.
It needs to be appreciated at this juncture that domestic public policy and international
public policy are both part of the same country’s national public policy. One must not confuse
international public policy with multinational public policy or for that matter with transnational
public policy.
Multinational public policy represents the public policy of a group of nations who have
joint interests within that group. It may even override the national public policies of the
countries within that particular group. Public policy of the Islamic nations as expressed in
Shari’ah is the example of multinational public policy.
Transnational public policy, on the other hand, is a concept which is considered to have
a universal application as it concerns the entire international community. It has a much higher
standard as it may include the fundamental rules of natural law, standard norms and customs
and general principles of morality that accepted by civilized nations or world community.16
Although there is no standard definition of international public policy, from the private
international perspective it is considered to be part of the national public policy of a state which
prevent a party from invoking a foreign award wherever required. 17 Some of the widely
identified examples of international public policy violations include bribing government
officials, illegality, fraud, biased arbitrators, serious irregularities in arbitration procedures and
awards where no reasons are provided.18
14
A.F.M. Maniruzzaman, “The New Law of International Commercial Arbitration in Bangladesh: A Comparative
Perspective,” American Review of International Arbitration 14 (2003):167.
15
Randall Peerenboom, “The Evolving Regulatory Framework for Enforcement of Arbitral Awards in the
People’s Republic of China”, Asia-Pacific Law & Policy Journal 1 (2000): 65.
16
17
C.S Gibson, “Arbitration, Civilization and Public Policy: Seeking Counterpoise Between Arbitral Autonomy
and the Public Policy Defence in View of Foreign Mandatory Public Law”, Penn State Law Review 113 (2009).
18
J.D.M. Lew, A.L. Mistelis and S.M. Kroll, Comparative International Commercial Arbitration (The Hague:
Kluwer Law International, 2003) 723.
4
In the case of Mitsubishi Motor Corp v Soler Chrysler-Plymouth Inc19 the court of
enforcement demonstrated a pro-arbitration stance or pro-enforcement policy in upholding the
international public policy principle. The US Supreme Court held that the matters of antitrust
claim are arbitrable in international dispute, even if they are not in domestic dispute. The
majority judgment also suggested the American court to “subordinate the domestic notions of
arbitrability to the international policy favouring commercial arbitration”.
Further, the case of Libyan American Oil Company (LIAMCO) v Socialist People’s
Libyan Arab Republic Jamahirya, (formerly Libyan Arab Republic)20, the US District Court
held that mere violation of the State’s public policy, as in the domestic public policy of the
State, may not necessarily justify refusal of enforcement of a foreign arbitral award on the
public policy exception.
However, there are still some examples where national courts of various countries have
demonstrated a more conservative or parochial interpretation of public policy exception. For
instance, in the case of Re Resort Condominiums International Inc v Botwell21, the Supreme
Court of Queensland held that for an arbitral tribunal’s decision to get enforced, it must be in
conformity with the enforcing State’s laws. This approach has been highly criticized for being
impractical because the arbitral tribunal would generally never know which jurisdictions the
award would be enforced, so the requirement of conformity with a particular legal system while
granting an award is unrealistic.22
A case of that concern which had been decided by the court in Malaysia is Harris
Adacom Corp v Perkom Sdn Bhd23, the defendant in this case oppose the plaintiff’s application
to have an award enforced on the ground that it was contrary to the public policy of Malaysia
because the plaintiff was an Israeli company. The court was quite clear that if it had found that
the plaintiff was an Israeli company, it is against public policy to enforce it as trade with Israel
is prohibited. However, the court in this case allowed the plaintiff’s application to enforce the
award as the evidence showed that the plaintiff was a United States company. Therefore, it was
not against public policy to enforce the award.
Ideally, whenever a foreign arbitral award is sought to be enforced, the enforcing court
should take into consideration of the international public policy and make an attempt to balance
19
473 US 614 (1985).
20
482 F. Supp.1175 (DDC 1980)
21
[1993] 118 ALR 655.
22
S. Greenberg, C. Kee and J Romesh Weeramantry, International Commercial Arbitration, An Asia-Pacific
Perspetive (Cambridge: Cambridge University Press, 2011) 464.
23
[1994] 3 MLJ 504.
5
its own domestic policy interest with the international policy in view of the cross-border trade
and commerce. The international public policy must be distinguished from domestic public
policy or domestic mandatory rules. The fact that an award is in contradiction with a mandatory
rule of law in the country where enforcement is sought will thus generally not lead to refusal
of enforcement of the award if a strict and narrow interpretation of public policy is adopted
unless it causes a substantial injustice as to render enforcement repugnant.
Narrow Interpretation of Public Policy

The New York Convention and Model Law uphold for finality of awards and pro-
enforcement policy. In the absence of specific provision under New York Convention and
Model Law in define the meaning of public policy, it becomes important at this juncture to
know and understand the methodology of interpretation of the public policy exception by the
enforcing court.
As a general rule under the pro-enforcement of policy, it is presumed that the arbitral
awards are enforceable, although subject to some specified exception including the public
policy exception. These exceptions are expected to be interpreted strictly and narrowly in order
to ensure that enforcement of arbitral award is upheld in the country or state sought to be
enforced.
The first case in American Court which had interpreted the extent of the public policy
defense was the United States Court of Appeals for Second Circuit in Parson & Whittemore
Overseas Co. v Societe Generale De L’ Industrie Du Papier [RAKTA].24 The court found that
the legislative history of the provision offered no certain guidelines to its construction nor any
convincing arguments from commentators. Instead, the court drew inferences from the
convention as a whole and relying on the “general pro-enforcement bias” of the convention,
recognized only a “narrow reading of the public policy defense”. It is to prevent development
of a major loophole in the convention mechanism for enforcement. The opinion in Overseas
case expressed a narrow construction of the public policy defense in these words:
“Enforcement of foreign arbitral awards may be denied on this basis

only where enforcement would violate the forum state’s most
basic notions of morality and justice”
24
508 F. 2d 969 (2 Cir. 1974).
6
Based on Overseas, it is to be concluded that the enforcement of arbitral awards can be

denied only when enforcement would “violate the forum state’s most basic notions of morality
justice”. Although the court’s decision support the limited use of the public policy defense,
the standard of “morality and justice” offers little exact guidance.
In Waterside Ocean Navigation Co Inc v International Navigations Co Ltd25, the US
court held that “the public policy defense must be construed in light of the overriding purpose
of the Convention, which is to encourage the recognition and enforcement of the commercial
arbitration agreement in international contract and to unify the standards by which agreements
to arbitrate are observed and arbitral awards are enforced in the signatories countries”. The
narrow approach or the narrow interpretation of public policy followed by courts is basically
a standard, measure or indicator for arriving at a decision with regard to the enforceability of
foreign arbitral awards under the public policy exception.26
The narrower concept of international public policy continued to be discussed in Scherk
v Albert Culver Co27. The Supreme Court distinguish between domestic public policy and the
narrower concept of international public policy. In this case the litigants had agreed to arbitrate
any dispute arising out of their contract. However, Albert Culver alleged that Scherk had made
fraudulent representations of trademarks rights, the Securities Exchange Act 1934 (“the Act”)
become applicable and prevented parties from waiving any of the Act provision. The question
in Scherk was whether to allow the arbitration of a securities issue in an international contract
despite federal statutes prohibiting the waiver of a right to trial in a securities case.
The Supreme Court determined that because the arbitration agreement was “truly
international” considerations and policies other than the Securities Exchange Act were
involved, namely, the need to avoid uncertainty in conflict of laws situation, and also potential
parochial action by court. Together these factors might operate to frustrate the advantages of
arbitration agreement. These international considerations were found to outweigh the benefit
intended by domestic statutory protection. The decision to favor international arbitration over
domestic statutory provisions was supported by citing the Convention as an indication of
Congressional Policy consistent with this ruling. However, the decision did not use the
Convention as primary authority for its holding. Thus, the Convention public policy defense
was not specifically at issue in the majority opinion.
25
(1985) 737 F.2d 150, AMC 349.
26
27
417 U.S. 506 (1974)
7
In the case of Biotronik Mess-und Therapiegeraete v Medford Medical Insurnce Co.28

the respondent attempted to define the public policy defense by equating public policy with a
federal arbitration statute. The respondent asserted that the opposing party had committed
fraud in the arbitration, thereby violating S10 of the United States arbitration act. The pleading
of the public policy defense in this case attempted to utilize the defense as a vehicle for
applying domestic arbitration law to foreign arbitration awards by equating a specific statute
with public policy. Although the court did not reach consideration of this question, it is clear
that the court believed a statutory violation would be insufficient to invoke the public policy
defense, absent considerations of basic notions of morality and justice. This reinforces the
principle of Scherk by holding that the weight given to a statute because it is domestic will not
automatically swing the balance away from recognizing a foreign arbitral award.29
Broader Interpretation of Public Policy

The courts of Civil Law countries appear to be interpreting public policy broadly. This
is quite evident from decisions made by courts in Indonesia, Japan etc. The Indonesia Court
considered Article V(2)(b) of the New York Convention which states that the court may deny
the enforcement of an arbitral award if enforcement would violate public policy of the place
of enforcement. 30 In addition, before the enactment of Law No 30 of 1999 concerning
Arbitration and Alternative Dispute Resolution, the Court referred to Indonesia Supreme
Court Regulation No. 1 of 1999, which provides that the enforcement of foreign arbitral
awards in Indonesia imitatively applies to awards which do not violate public policy order in
terms of all underlying principles of the Indonesian legal system and society. 31
In Indonesia, Bakrie Brothers v Trading Corporation of Pakistan Ltd32 was the first
case in which the Indonesia Court rejected the enforcement of foreign arbitral awards for the
reason of violating public policy. In this case, the dispute arose when Bakrie Brothers
Corporation (an Indonesian Company) which had signed an agreement with Trading
Corporation of Pakistan Ltd for the sale and purchase of palm oil, failed to meet its contractual
obligation to ship palm oil to Karachi. Trading Corporation of Pakistan Ltd brought the dispute
to Oil and Seed Arbitration in London, as provided for in the contract. The London arbitral
28
415 F. Supp 133 (D.N.J 1976).
29
Junker, Joel R. "The Public Policy Defense to Recognition and Enforcement of Foreign Arbiral Awards." Cal.
W. Int'l LJ 7 (1977): 228.
30
Supra note 8 at 7.
31
Ibid.
32
4231k/Pdt/1986
8
award ordered Bakrie Brothers to pay compensatory damages. The respondent refused to
implement the London arbitral award arguing, among other things that it had not been properly
heard in the process of the said arbitral decision. The Indonesian Supreme Court affirmed the
District Court and High Court’s decision, refusing the request for the enforcement of the
arbitral awards, among other things for the reason that the respondent had not been adequately
heard in the arbitration proceedings.
In another case, the Indonesia Supreme Court in Yani Hariyanto v E.D&F. Man
Sugar33 refused the enforcement of London arbitral award because the contract invalid under
Indonesian law. Yani Hariyanto, an Indonesia entrepreneur had signed a contract for the sale
and purchase of sugar wih E.D&F. Man Sugar, a British company. Without clear reason, Yani
Hariyanto unilaterally cancelled the contract. E.D&F. Man Sugar brought the dispute to
arbitration in London. The award of the London Arbitration ordered Yani Hariyanto to pay
compensatory damages. By virtue of the Decree of the President of the Republic of Indonesia
No. 34 Years 1981, at the time, sugar could only be imported by BULOG (the National
Logistic Agency). Thus, sugar import contracts by private sector parties were not legal.
Frans Winarta in a report to the International Bar Association Sub-committee on
Recognition & Enforcement of Awards in 2015 said that the Indonesian courts' interpretation
of what amounts to a violation of public policy is: -
“ (i) a violation of the prevailing laws and regulations in Indonesia;

(ii) endangering the national interest of Indonesia, which includes
the local economy; and
(iii) a violation against the sovereignty of Indonesia.”34
The interpretation of violation of public policy tantamount to a violation against

sovereignty Indonesia was discussed in the case of Astro Group v Lippo Group.35 In this case,
both parties were engaged in an arbitration in Singapore. In addition, Lippo had also brought a
court proceeding against Astro in Indonesia. Astro objected to the court proceeding and was
33
1205, K/Pdt/1990 (1991).
34
Frans H. Winarta, 'Indonesia Country Report on Public Policy for IBA APAG', International Bar Association
[2015] at page 2.
35
The CJDC Decision No. 05/Pdt.Arb.Int/2009 dated 28 October 2009, upheld by the Indonesian Supreme
Court Decision No. 01 K/Pdt.Sus/2010 dated 24 February 2010.
9
granted an interim award by the arbitral tribunal which ordered Lippo to cease any legal
proceedings in Indonesia. Astro sought to enforce the interim award at the Central Jakarta
District Court ("CJDC"). The CJDC in considering the award which included an order to cease
any on-going proceeding in Indonesia, decided that the award violated the sovereignty of
Indonesia as "no foreign power could ever interfere with the on-going legal proceedings in
Indonesia." Therefore, the CJDC refused enforcement of the award on the basis that it was
against the public policy of Indonesia. This was then upheld by the Supreme Court of Indonesia.
Japan provides that a final and enforcement foreign arbitral award is conclusive and
enforceable, except where contrary to public policy. In the case of Bryant v Mansei Kogyo
Co., the Tokyo District Court accepted the possibility of recognition and enforcement of
punitive damages award. However, the Tokyo High Court stated that the District Court was
wrong on the ground that Article 200 (3) prevented the recognition of private punitive
damages as violation of public policy because the concept of punitive damages implies
criminal behavior, that is reserved to public law. Japan’s concept of public policy is broader
than the United States.36
Based on the above cases, it shows that public policy is interpreted broadly by the
courts of Civil Law countries. The courts in Civil Law Countries do not distinguish the
concept between domestic public policy and international public policy which the latter
requires higher standard to invoke public policy as a ground for refusing enforcement of
foreign award. The recognition and enforcement of foreign award is easier to be refused in
Civil Law countries compare with Common Law countries becasue the interpretation of public
policy is being interpreted broadly by the courts in Civil Law countries.
The Use of Public Policy in Commonwealth Countries: Hong Kong, Singapore and
Malaysia
Commonwealth countries followed the US interpretation of “public policy” which is
very narrow in international arbitration. The US divides “public policy” into domestic and
international “public policy”. The court will enforce foreign arbitral awards unless
international “public policy” is violated.37 We will now discuss the interpretation of “Public
Policy” by the courts in Malaysia, Singapore and Hong Kong jurisdictions.
36
Michael Peter Waxman, “Enforcing American Private Anti Trust Decision in Japan: is Comity Real?” De
Paul Law Review 44 (Summer 1995); 1131-1145.
37
Cymie Payme, “International Arbitration”, American Society of International Law Proceeding 90 (1996): 256.
10
(i) Hong Kong

S86(2)(b) of the Arbitration Ordinance (Cap. 609) provides that the courts may refuse
the enforcement of an arbitral award if “it would be contrary to public policy to enforce the
award”.
The predecessor of this section i.e 44(3) of the old Arbitration Ordinance (Cap. 314)
came before the Court of Final Appeal in the landmark decision of Hebei Import & Export
Corp v. Polytek Engineering Co. Ltd38, Litton PJ followed US position in adopting narrow
interpretation of “public policy” for refusing to enforce an arbitral award and stated that:-
“The expression public policy as it appears in S44(3) of the

Ordinance is a multi-faceted concept. Woven into this concept is the
principle that courts should recognise the validity of decisions of
foreign arbitral tribunals as a matter of comity, and give effect to
them, unless to do so would violate the most basic notions of
morality and justice...”.
Notably, Bokhary PJ concurred and added this graphic observation (albeit less quoted
in subsequent case law):
“In my view, there must be compelling reasons before enforcement

of a Convention award can be refused on public policy grounds. This
is not to say that the reasons must be so extreme that the award falls
to be cursed by bell, book and candle. But the reasons must go
beyond the minimum which would justify setting aside a domestic
judgment or award …”.
The decision in Hebei was later followed by Court of Appeal in Karaha Bodas Co LLC
v Persusahaan Pertambangan minydak Dan Gas Bumi Negara (Pertamina)39, Stone J accepted
that the expression “contrary to the public policy of that country” in Article V2(b) means
‘contrary to the fundamental conception of morality and justice of the forum’. The Court of
Appeal’s decision in this case was affirmed by the Court of Final Appeal.
38
[1999] 2 HKC 205.
39
[2007] 5 HKC 91.
11
In the case of A v R40, apart from following the decision in Hebei, the Court further held
that if the public policy ground is to be raised, there must be something more caused a
substantial injustice arising out of an award to render the enforcement repugnant.
(ii) Singapore
The relevant provision for refusal of recognition and enforcement of foreign award on
the ground of public policy can be found in S31(4)(b) of the International Arbitration Act (Cap
143A, 2002 Rev Ed) (“IAA”) and Article 36(1)(b) of the UNCITRAL Model Law on First
Schedule of IAA. The Singapore courts also agree that public policy as a bar to enforcement
should be interpreted in a restrictive manner.
In Coal & Oil Co LLC v GHCL Ltd41, the Singapore High Court in 2015 followed the
earlier Singapore Court of Appeal's decision in PT Asuransi Jasa Indonesia (Persero) v Dexia
Bank42 which ruled: –
“…[public policy] should only operate in instances where the upholding

of an arbitral award would 'shock the conscience' … or is 'clearly
injurious to the public good' or … wholly offensive to the ordinary
reasonable and fully informed member of the public' … or where it
violates the forum's most basic notion of morality and justice"… that
it would be set aside on the grounds of public policy."
The case of VV and Another v VW43laid down an important point that assertions of
breach of policy cannot be vague and generalised. In another word, a party who seek to
challenge an award on public policy must identify which part of the award conflict with that
public policy.
The ground of public policy on refusal enforcement of foreign award had further
addressed by the Court of Appeal in Aju v Ajt44. The Court of Appeal held that where an arbitral
tribunal has jurisdiction to decide any issue of fact and/or law, it may decide the issue correctly
or incorrectly. Any errors made by arbitrator are not per se contrary to public policy unless the
decision making process is tainted by fraud, breach of natural justice.
40
[2010] 3 HKC 67.
41
[2015] SGHC 65.
42
[2007] 1 SLR 597.
43
[2008] 2 SLR 929.
44
[2011] SGCA 41.
12
(iii) Malaysia
The introduction of the Arbitration Act 2005 (Act 93) (“the Act”) can be said to be
one of the most significant developments in the field of arbitration law in Malaysia.45 The Act
covers the recognition and enforcement of arbitral awards (see S38 and S39 of the Act). Both
provisions of the Act are the key provisions relating to the enforcement of arbitral awards
regardless of whether they are domestic or foreign in nature.
S39 of the Act provides for grounds of refusing on enforcement of arbitral award.
S39(2) of the Act retains the element of non-recognition on ground of public policy similar to
that found under the New York Convention. However, the term public policy is not defined
in the Act but it is certainly not exhaustive, but may differ from one jurisdiction to another.
In interpreting the definition of “public policy” in the Act, we shall refer to the cases
decided by the Courts in Malaysia, whether the Courts were adopting narrow or broader
approach in its interpretation.
Notably that, the Court in Malaysia had followed Hong Kong leading case Hebei on
the issue of public policy in the area of arbitration law. For instance, the case of Infineon
Technologies (M) Sdn Bhd v Orisoft Technology Sdn Bhd (previously known as Orisoft
Technology Bhd) and Another Application46, the Court agreed with the restrictive approach
adopted in Hebei case in relation to the enforcement of foreign arbitral award. The restrictive
approach is grounded in the upholding of international comity and is not for refusal to register
the award on the ground of conflict of public policy unless the most basic notions of morality
and justice is demonstrated. However, the court further held that a less rigid approach should
apply where the award is a domestic arbitral award.
In the case of Open Type Joint Stock Co Efirnoye (‘EFKO’) v Alfa Trading Ltd47, the
defendant objected to plaintiff’s application for recognition and enforcement of the arbitration
award on the grounds that the court ought not to enforce the Russian Award as it would be
against the public policy of Malaysia to enforce an award which is contradictory to another
existing Ukrainian award between the same parties in respect of the same subject matter. The
Crux of the issue that arises is – Does the arbitration award determined in Russia identical to
that determined in Ukraine, amounted to res judicate thereby rendering any recognition of
such an award contrary to public policy?
45
Supra note 1.
46
[2011] 7 MLJ 539.
47
[2012] 1 MLJ 685.
13
The Court found that the precise subject matter of the dispute between the parties in
Russian arbitral tribunal and Ukrainian arbitral tribunal was different, although both disputes
arose from the same contract. There is no issue of res judicate because the defendant had
failed to show that an identical dispute was decided by two tribunals resulting in two different
decisions. The contravention of public policy argument ought not to be utilized as a guise to
reopen settled matters in the arbitration.
The Federal Court of Malaysia recently in the case of Jan De Nul (Malaysia) Sdn Bhd
& Anor v Vincent Tan Chee Yioun & Anor48 delivered its decision on an application to set aside
an arbitral award for breach of public policy of Malaysia because there was a breach of the rule
of natural justice about the making of the award. The Federal Court referred to Singapore case
of PT Asuransi Jasa Indonesia as discussed above in delivering their decision. The Federal
Court stated that the concept of public policy generally is a broad concept. But in applying the
concept for the purpose of setting aside an award, the concept of public policy ought to be read
narrowly and more restrictively. The court went on to say that “the concept of public policy
must be one taken in the higher sense where some fundamental principle of law or justice is
engaged”. The element of illegality, clear injury to public good, or the abuse of the integrity of
the court's process or powers ought to be demonstrated when the public policy defense is
applied.
Conclusion
Based on the above cases analysis, it is clear that the Courts in common law countries
have manifested reluctance to rely on public policy grounds to refuse recognition of foreign
arbitral awards. The courts in Hong Kong, Singapore and Malaysia have followed the narrow
interpretation of public policy by the US courts in which the public policy defense should
prevail to deny enforcement of an arbitral award only when that award violates the forum’s
most basic notions of morality and justice. This approach is consistent with the “general pro-
enforcement bias” of the New York Conventions and Model Law.
The public policy clause, however, is a loophole of concern for those who wish to
expand, narrow, or simply define the clause. A clear definition would promote the goal of
alternative dispute resolution by increasing the simplicity and certainty of arbitration in the
context of international trade. While the courts have been reluctant to issue definite guidelines
48
[2019] 2 MLJ 413.
14
on the use of the public policy defense, they should be encouraged to articulate a clear standard
of an acceptable public policy defense based on the reasoning that they have developed so that
all the factors in denying the public policy defense and enforcing arbitration awards in cases
concerning international contract containing arbitration clauses would be fairly bargained
between the contracting parties.
B. Public Policy Defense in relation to Enforcement of Foreign Judgments
Introduction
Due to the increasing in the foreign judgments made against Malaysians residing here,
the legal enforcement issues relating to foreign judgments have arisen. Malaysian courts do
assist, on a reciprocal basis to foreign judgment holders in enforcing foreign judgments issued
by the superior in the Commonwealth countries. At the same time, the courts are granted the
rights to refuse or set aside the registration of the foreign judgments on the ground of, for
example, fraud and public policy.
Enforcement of Foreign Judgments

(i) Malaysia
Basis for the Rule
During the 17th century, the English courts began enforcing foreign judgments. It was
supposed that the basis for the enforcement was based on the doctrine of comity.49 English
judges believed that the Law of Nations required the court of one country to assist those of
another. They feared that if foreign judgments were not enforced in England, English
judgments would not be enforced abroad.
The theory of comity was superseded by the doctrine of obligation that was stated by
Parker B, in the case of Russell v Smyth 50 and subsequently approved by Blackburn J in
Schisby v Westenholz51 in the following words:
49
Khaira, H. (2007). Enforcement of Foreign Judgment over Immovable Property in Malaysia. Queensland
Reports. [2007] 1 QLR 34
50
(1842) 9 M & W 810 at p 819
51
(1870) LR 6 QB 155 at p 159
15
“We think that the true principle on which the judgments of foreign tribunals are enforced
in England is that the judgment of a court of competent jurisdiction over the defendant
imposes a duty or obligation on the defendant to pay the sum for which judgment is given,
which the courts in this country are bound to enforce; and consequently that anything
which negative that duty, or forms a legal excuse for not performing it, is a defence to
the action.”
However, in the case of Sirdar Gurdyal Singh v The Rajah of Faridkote52, the Privy
Council made it clear that an overseas judgment will not be enforceable at common law unless
the overseas court had jurisdiction in accordance with the principles of private international
law.
Legislative History
The specific legislation on the reciprocal enforcement of judgments was first introduced
in the Straits Settlements in 192153 and in the following year in the Federated Malay States54,
Kedah55 and Johore56. With the formation of the Federation of Malaya in 1948, these laws were
repealed by the Reciprocal Enforcement of Judgments Ordinance 1949 which was then
replaced by the Reciprocal Enforcement of Judgments Act 1958 (“REJA”). REJA was revised
in 1972 and now in force throughout Malaysia.
However, REJA appears to enforce foreign judgments based on the doctrine of
reciprocity rather than of obligation. The substantive law under the REJA is basically the same
as at common law and the main difference is procedural. At common law, the enforcement of
a foreign judgment is by instituting a fresh suit in a court of the country where the judgment is
sought to be enforced based either on the judgment or on the original cause of action. On the
other hand, under the REJA, the enforcement is by registration.57
52
[1894] AC 670 (PC)
53
Chapter 46
54
Enactment No 2 of 1922
55
Enactment No 7 of 1342 (AH)
56
Enactment No 68 of 1922
57
Mohamed, A. H. (1981). Reciprocal Enforcement of Judgments and Service of Process in Malaysia. Malayan
Law Journal. [1981] 1 MLJ cxvi
16
Definition of “Judgment” under REJA

A “judgment” is defined in the REJA as a judgment or order given or made by a court in
any civil proceedings, or a judgment or order given or made by the court in any criminal
proceedings for the payment of a sum of money in respect of compensation or damages to an
injured party. If a country is a member of the Commonwealth, “judgment” may include an
award in proceedings in an arbitration if the award has, pursuant to the law in force in the place
where it was made, become enforceable in the same manner as a judgment given by a court in
that place.58
Registration of Foreign Judgments

REJA provides for the registration of judgments of superior courts of reciprocating
countries only.59 The names of the reciprocating countries and the superior courts thereof are
listed in the First Schedule of the REJA. Those countries include the United Kingdom,
Singapore, New Zealand and India. If the judgment is not from a country listed in the First
Schedule of the REJA, the only method of enforcement at common law is by securing a
Malaysian judgment. REJA also provides that a person, being a judgment creditor under a
judgment to which Part II of the REJA applies, may apply to the High Court at any time within
six years after the date of the judgment; or where there have been proceedings by way of appeal
against the judgment, after the date of the last judgment given in those proceedings, to have
the judgment registered in the High Court. On any such application, the court shall, subject to
the proof of the prescribed matters and to the other provisions of the REJA, order the judgment
to be registered.60
However, under the following circumstances, a judgment will not be registered, namely
when: (a) the judgment sum has been fully satisfied61; and/or (b) the judgment could not be
enforced by execution in the country of the original court62.
In the circumstances where a foreign judgment for recovery of a sum payable under a
judgment of a superior court is registrable under the REJA, such judgment shall have the same
force and effect as a Malaysian judgment and the only way of enforcing this judgment is by
58
Reciprocal Enforcement of Judgments Act 1958, Section 2
59
Ibid, Section 3(1)
60
Supra note 10, Section 4(1)
61
Supra note 10, Section 4(1)(a)
62
Supra note 10, Section 4(1)(b)
17
registration under the REJA. 63 The judgment cannot be enforced in any other manner, for
example by a common law action on a debt.
The mode of application in registering a foreign judgment in the High Court is by way
of originating summons to which no appearance needs to be entered. The rule does not provide
for the application to be heard ex parte. However, the practice has been that the application is
heard ex parte, as illustrated in the case of Development Bank of Singapore Ltd v Furniture
Industries Pte Ltd & Ors64. This is probably due to O. 67, r. 9 of the Rules of Court 2012 which
provides for applications to set aside the registration of foreign judgments by summons
supported by an affidavit.65 An application for registration must be supported by an affidavit.
Section 5(1)(a) of the REJA provides a number of situations where the courts may set
aside the foreign judgment if the court is satisfied that: (i) the judgment is not a judgment to
which Part II of the REJA applies or was registered in contravention of the REJA; (ii) the courts
of the country of the original court had no jurisdiction in the circumstances of the case; (iii) the
judgment debtor, being the defendant in the proceedings in the original court, did not
(notwithstanding that process may have been duly served on him in accordance with the law
of the country of the original court) receive notice of those proceedings in sufficient time to
enable him to defend the proceedings and did not appear; (iv) the judgment was obtained by
fraud; (v) the enforcement of the judgment would be contrary to public policy in Malaysia; or
(vi) the rights under the judgment are not vested in the person by whom the application for
registration was made.
Setting Aside on the Grounds of Public Policy

The registration of foreign judgment would be against public policy 66 if the subject
matter in the foreign court would have contravened Malaysian law if it was carried out in
Malaysia.
In the case of Bank of New Zealand v Wong Kee Tat67, the plaintiff successfully applied
to the High Court of Malaya to register a Singapore judgment. The defendant applied to set
aside the registration on the grounds that the registration of the judgment would be contrary to
public policy as the subject matter of the suit was a loan transaction calculated to defeat the
63
Supra note 10, Section 7
64
[1992] 2 CLJ 809 (HC)
65
R. Rajeswaran. (2002). Enforcement of Judgments and Orders (Handbook). Malaysia: Malayan Law Journal
Sdn Bhd
66
Supra note 10, Section 5(1)(a)(v)
67
[1990] 2 MLJ 435 (HC)
18
provisions of the Exchange Control Act 1953. The High Court judge upheld the decision of the
senior assistant registrar. The learned judge found that the loan transaction was not illegal and
void simply because the permission of the Controller of Foreign Exchange had not been sought
as the Exchange Control Act 1953 does not provide a moratorium for debtors but merely
controls the immediate destination of the payments.
Similarly, in the case of Banque Nationale De Paris v Lee Chiong Woo68 , the court
dismissed the application of the defendant to set aside the registration of a judgment from the
Singapore High Court after rejecting the argument of the defendant that the enforcement of the
judgment was contrary to public policy. This is because neither the plaintiff nor the defendant
had obtained prior permission of the Controller of Foreign Exchange pursuant to the provisions
of the Exchange Control Act 1953 for the execution of guarantee by the defendant in Singapore
for a facility granted in United States Dollars (“USD”).
In the case of The Aspinall Curzon Ltd v Khoo Teng Hock69, the plaintiff, a licensed
gambling casino, obtained in the High Court of England a judgment against the defendant and
subsequently applied to the High Court in Kuala Lumpur to have the judgment registered under
Section 4 of the Reciprocal Enforcement of Judgments Act 1958. The application was granted
by the senior assistant registrar and the defendant’s application to set aside the order was
dismissed. The defendant appealed to the judge in chambers. On appeal, the defendant argued
that the cheque that was provided to the plaintiff (in exchange for cash and gaming chips) were
given for an illegal consideration, or alternatively that the judgment was for gambling debt,
and should not be enforced, since it is against public policy. The court dismissed the
defendant’s appeal as the cheques were issued for purposes of gaming at a licensed gaming
casino which is a lawful transaction by the law of England and so, the enforcement of the
United Kingdom judgment cannot be considered as against the public policy of Malaysia.
In the case of Commmerzbank (South East Asia) Ltd v Dennis Ling Li Kuang 70 , the
defendant had applied for credit facilities from the plaintiff in Singapore without the permission
of the Controller of Foreign Exchange of Malaysia. Subsequently, the plaintiff obtained a
judgment against the defendant in the Singapore High Court for USD5m and registered the
judgment at the High Court Sabah and Sarawak, Kuching. The defendant sought to set aside
the registration of the judgment and argued before the learned judge that: (a) the enforcement
of the judgment was contrary to public policy, as he had not obtained prior written permission
68
[2002] 1 MLJ 406 (HC)
69
[1991] 2 MLJ 484 (HC)
70
[2000] 2 CLJ 57 (HC)
19
of the Controller of Foreign Exchange of Malaysia for the credit facilities in contravention of
the provisions of the Exchange Control Act 1953; and (b) the granting of the credit facilities
was illegal being contrary to the provisions of the same Act. However, the court held that the
submissions raised on the legality or otherwise of the judgment obtained or the public policy
considerations are not relevant for consideration by the court.
The issue on whether the enforcement of judgments for gambling debt was against public
policy was also considered in the case of The Ritz Hotel Casino Ltd & Anor v Datuk Seri Osu
Hj Sukam71 where the judgment was for a casino debt for the sum of RM7,142,859.98. The
High Court dismissed the application for registration and held that:
“It is universally recognised that gambling is evil and against the teaching of religion.
‘Belief in God’, one of the principles in the Rukun Negara must mean believing and
following the teachings of the religion. Although gambling was allowed under license in
Malaysia but it was to prevent it from being run by the underworld and it was not that it
was something that was good. Anything that seeks to go against the Rukun Negara must
surely be regarded as against public policy.”
Yeow-Choy Choong criticizes the definition adopted and applied by the High Court in
this case as over expansive as the court alluded to the fact that anything that is injurious to
public welfare is against public policy. 72 Fortunately, the Court of Appeal overturned the
decision and allowed the registration of the English judgment; 73 and leave to appeal to Federal
Court was also denied.74
Bina Puri Holding Berhad & Anor v National Housing Authority & Ors75 is another case
which the Kuala Lumpur High Court refused to grant an extra-territorial anti-enforcement
injunction in relation to a foreign judgment. The plaintiffs commenced a legal action in the
court to restrain the enforcement of the judgment by the Thailand Central Administrative Court
and appealed to the Thailand Supreme Administrative Court at the same time. The court stated
that the foreign judgment and its resultant consequences must not be interfered as there are no
71
[2005] 6 MLJ 760 (HC)
72
Choong, Y. C. (2007). Enforcement of Foreign judgments - The Role of the Courts in Promoting (or
Impeding) Global Business. Retrieved from
http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.193.4593&rep=rep1&type=pdf
73
Civil Appeal No S-92–872 of 2005
74
Federal Court Application No 08–44 of 2007(S)
75
[2019] MLJU 1474
20
viable grounds established to question and defeat the judgment based either on res judicata or
Malaysian public policy. The judge opined that the proper and convenient forum to determine
and dispense the remedy sought by plaintiffs in relation to the bank guarantees and the foreign
judgment is the courts in Thailand.
In the case of Mann Holdings Pte Ltd & Anor v Ung Yoke Hong76, the parties underwent
a series of litigation in Singapore and Malaysia. The appellant had applied to the Malaysian
courts for a stay of proceedings to preserve the integrity of the Singapore suit. However, the
Malaysian courts dismissed the application. The appellant then registered the judgment of the
Singapore Court of Appeal under the REJA. The respondent sought to set aside the registration
on the ground that the earlier decision of the Malaysian courts in dismissing the application for
a stay of proceedings amounted to res judicata. The High Court of Malaya held in favour of
the respondent and stated that res judicata is a facet of public policy. On appeal, however, the
Court of Appeal held that whilst res judicata can be considered as a facet of public policy, it
was not applicable to the facts of the case because the Singapore judgment was final and
conclusive between the parties in the Singapore suit. Thus, the order of the High Court setting
aside the registration of the Singapore judgment was set aside.
(ii) Singapore
A foreign judgment can be recognised and enforced in Singapore by the common law
rules or under the statutory schemes.77 Under the common law rules, the judgment creditor
must sue on a fresh cause of action for a debt within six years from the date the foreign
judgment was initially handed down. On the other hand, there are three statutory schemes
which recognise and enforce a foreign judgment. Firstly, the Reciprocal Enforcement of
Foreign Judgments Act which is applicable to the foreign judgments from superior courts of
countries that may be gazetted. Currently, only the courts of Hong Kong have been gazetted.
The application to register a judgment must be commenced within six years of the date the
initial foreign judgment was handed down. Secondly, the Reciprocal Enforcement of
Commonwealth Judgments Act (“RECJA”) which is applicable to the judgments obtained from
the superior courts in the United Kingdom and other Commonwealth countries that may be
gazetted from time to time. Unless the Singapore courts stipulate otherwise, the judgment
76
[2019] 6 CLJ 475
77
Tay, Y. S., & Poi, V. A. Enforcement of judgments and arbitral awards in Singapore: overview. Retrieved from
https://uk.practicallaw.thomsonreuters.com/4-619-
4293?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1
21
creditor must apply to have the foreign judgment registered in the Singapore court within 12
months, after the date of the judgment. Lastly, the Choice of Courts Agreements Act 2016
which applies to a foreign judgment from a court of a contracting state to the Hague Choice of
Court Convention, where the court was the chosen court designated in an exclusive choice of
court agreement concluded in a civil or commercial matter (provided that the choice of court
agreement is concluded after the Convention enters into force in that contracting state).
The registration of a foreign judgment may be refused or set aside on the ground of public
policy as illustrated in the case of WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri
Lanka78, the plaintiffs submitted that the defendants having proceeded with the second action
in breach of an injunction of the court which they had notice of and it would be contrary to
public policy to recognise any order made under the second action. The court decided that it
would be against public policy to give recognition to the foreign judgment at the request of the
defendants who have procured it in breach of an order issued by the court. It is important to
note the plaintiffs’ reference to the following passages:
(1) No action is sustainable on a foreign judgment which is contrary to the English principles
of public policy.79
(2) Judgment contrary to public policy. A foreign judgment will not be recognised or
enforced in England if its recognition or é enforcement, would be contrary to public
policy.80
(3) It will be contrary to public policy to recognise or enforce a judgment which has been
obtained in disobedience of an injunction not to proceed with the action in a foreign
court.81
The case of Philip Alexander Securities and Futures v Bamberger82 was also referred to.
In that case, the English court granted interim anti-suit injunctions against the respondents.
However, the respondents continued to prosecute their claims despite having notice of the
injunctions and obtained judgments from the German courts. The English Court of Appeal held
that it would seem to be prima facie if someone proceeds in breach of, and with notice of, an
injunction granted by the English Court to obtain judgments abroad, those judgments should
not, as a matter of public policy, be recognised in the United Kingdom.
78
[2002] 3 SLR 603
79
North, P. (1959). Cheshire & North: Private International Law (13th Edition) at p 446
80
Volume 8(1) Halsbury’s Laws of England (4th Edition, Reissue), para 1009
81
Dicey & Morris, The Conflict of Laws (13th Edition) Vol 1, at para 14-145
82
(CA, Civil Division, Transcript, 12 July 1996)
22
On the other hand, in the case of Liao Eng Kiat v Burswood Nominees Ltd83 (“Liao Eng
Kiat”), the Singapore Court of Appeal did not set aside the registration of the Australian
judgment on the ground of public policy. The issue before the court is whether Section 5(2) of
the Civil Law Act (Cap 43, 1994 Rev Ed) (“CLA”) and Section 3(2)(f) of the RECJA precluded
registration of the Australian judgment on the ground of public policy. The court dismissed the
appeal and decided that Section 5(2) of the CLA and Section 3(2)(f) of the RECJA encapsulated
different standards of the public policy defence. Whilst Section 5(2) provides Singapore’s
domestic public policy on the enforcement of gambling debts, Section 3(2)(f) requires a higher
threshold of public policy to be met in order for registration of a foreign judgment to be refused.
Likewise, foreign courts appeared very reluctant to invoke “public policy” to justify a refusal
to recognise a foreign judgment, even if their domestic public policy would have precluded
enforcement of the underlying claim. Thus, the appellant could not get around Section 3(2)(f)
of the RECJA by arguing that Section 5(2) of the CLA would have precluded the court from
entertaining the respondent’s cause of action had it been brought in Singapore.84 The court
added that there were no public policy grounds opposing the registration of the Australian
judgment which would offend a fundamental principle of justice or a deep-rooted tradition of
Singapore. If anything, the prevalent conception of good morals in the Singaporean community
at large would be against Singaporeans who ran up gambling debts in overseas jurisdictions
and sought to evade their responsibility for those debts when judgment had been issued against
them.85
In the subsequent case of Poh Soon Kiat v Desert Palace Inc86, the Court of Appeal
disagreed with its previous statements in Liao Eng Kiat that gambling itself was not contrary
to Singapore’s public policy, holding that unregulated gambling and gambling on credit
remained contrary to public policy in Singapore. The court referred to the “elaborate legislative
and regulatory framework” in the Casino Control Act which suggested that gambling was
regarded as an activity which needed to be strictly controlled in Singapore. The court also went
on to consider that the 2006 and 2007 National Council of Problem Gambling Reports evinced
that the “prevalent public sentiment” with respect to gambling remained a negative one and so,
justifying its view that gambling itself remained contrary to the public policy of Singapore.
This represents an implicit recognition by the Singapore Court of Appeal that relevant
83
[2004] SGCA 45; [2004] 4 SLR 690
84
Ibid, para 23, 24 & 32
85
Supra note 35, para 46
86
[2010] 1 SLR 1129
23
community moral norms applicable to the public policy doctrine can be derived from sources
beyond statutes and common law.87
(iii) Hong Kong

A foreign judgment can be enforceable in Hong Kong under the common law or the
Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) (“FJREO”). 88 Under the
common law, the judgment creditor can commence an action in Hong Kong using the foreign
monetary judgment which creates a cause of action in favour of him or her. There is no limit
to the countries or territories whose judgments can be enforced in Hong Kong. On the other
hand, under the FJREO, the judgments from the “superior courts” 89 of the countries like
Australia, Austria, Belgium, Bermuda, Brunei, France, Germany, Italy, India, Malaysia, The
Netherlands, New Zealand, Israel, Singapore and Sri Lanka are enforceable by the simple
procedure of registration.
It is noted that the courts are reluctant to refuse the enforcement of foreign judgments on
the basis of public policy as they opine that a foreign judgment will not be impeached on the
ground that the foreign court erred in law or in fact. For example, in the case of Foshan Nanhai
Branch of Industrial and Commercial Bank of China Ltd v Foshan Ruifeng Petroleum and
Chemical Fuel Co Ltd90, the registration of the Mainland Chinese judgments was claimed to
be contrary to the public policy (enforcing a judgment registered by a party which has no
standing to sue in the first place) and should be set aside under Section 18(1)(j) of the Mainland
Judgments (Reciprocal Enforcement) Ordinance, Cap 597. However, the court was not
satisfied that by reason of a party having no locus to commence proceedings in Hong Kong,
the registration of the foreign judgment should be set aside.
Conclusion
REJA is only limited to enforcement of judgment by superior courts and in relation to
monetary judgments only. REJA does not provide for any pre-judgment reliefs like Mareva
injunctions, thus making it difficult to protect dissipation of property pending registration but
87
Chng, K. (2018). A theoretical perspective of the public policy doctrine in the conflict of laws.
Journal of Private International Law. 14, (1), 130-159. Research Collection School of Law
88
(2015, October 16). Enforcement of Judgments in Hong Kong: An Overview. Retrieved from
http://www.conventuslaw.com/report/enforcement-of-judgments-in-hong-kong-overview/
89
Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319), Paragraph 4(b). A “superior
court” means a court with unlimited jurisdiction in civil and criminal matters.
90
[2019] HKCU 976
24
not withstanding these limitations since its birth in 1958, it has played an important role in the
enforcement of foreign judgments in Malaysia and will certainly continue to do so in the future.
From the above, it can be seen that the courts in Malaysia are reluctant to set aside the
registration of judgment due to public policy. Unlike Malaysia, Singapore is willing to accept
the monetary judgments from a wider range of countries through the enactment of Choice of
Courts Agreements Act 2016. Also, Singapore is ready to refuse or set aside a foreign judgment
if the judgment is contrary to Singapore’s public policy. In Hong Kong, the reach of public
policy in relation to the enforcement of public policy is even harder as the courts view that a
foreign judgment should not be challenged simply because the foreign court erred in law or in
fact.
25
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27

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GROUP ASSIGNMENT

Student Name: LIANG CHOR SOON & TANG LEE YEE

Student ID: LQB190017 & LQB180006

Name of module: CIVIL LITIGATION

Name of Lecturer: PROF. DR. CHOONG YEOW CHOY

Due date: 15 JUNE 2020

29th May 2020

A foreign arbitral award is rendered by an individual or private arbitral body from

 Public Policy Defense in relation to Enforcement of Foreign Arbitral Awards

“2. Recognition and enforcement of an arbitral award may also be refused if

Definition of Public Policy

Narrow Interpretation of Public Policy

“Enforcement of foreign arbitral awards may be denied on this basis

Based on Overseas, it is to be concluded that the enforcement of arbitral awards can be

In the case of Biotronik Mess-und Therapiegeraete v Medford Medical Insurnce Co.28

Broader Interpretation of Public Policy

“ (i) a violation of the prevailing laws and regulations in Indonesia;

The interpretation of violation of public policy tantamount to a violation against

(i) Hong Kong

“The expression public policy as it appears in S44(3) of the

“In my view, there must be compelling reasons before enforcement

“…[public policy] should only operate in instances where the upholding

B. Public Policy Defense in relation to Enforcement of Foreign Judgments

Enforcement of Foreign Judgments

Definition of “Judgment” under REJA

Registration of Foreign Judgments

Setting Aside on the Grounds of Public Policy

(iii) Hong Kong

1. (2015, October 16). Enforcement of Judgments in Hong Kong: An Overview. Retrieved

13. Khaira, H. (2007). Enforcement of Foreign Judgment over Immovable Property in

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