ING Bank N V & Anor v Tumpuan Megah Development Sdn Bhd [2025] MLJU 2449

Federal Court (Putrajaya)

Arbitration — Foreign Judgments — Enforcement under REJA

1. The First Appellant, ING Bank N.V., and the Second Appellant, O.W. Bunker Far East (Singapore) Pte Ltd (“OWBFE”), were part of the O.W. Bunker group, which supplied bunker fuel internationally. In October and November 2014, the Respondent, Tumpuan Megah Development Sdn Bhd, entered into two bunker supply transactions with OWBFE. The contracts incorporated the OW Bunker Terms and Conditions, which provided for arbitration in London under English law.
2. Following delivery of the bunker fuel, the Respondent failed to make payment amounting to USD 937,353.24. Pursuant to the arbitration clause, the dispute was referred to London arbitration. The Respondent participated in the arbitration proceedings and raised defences relating, inter alia, to OWBFE’s entitlement to payment in light of the O.W. Bunker group’s insolvency.
3. In 2018, the Arbitral Tribunal rendered an award in favour of OWBFE. The Appellants subsequently applied under section 66 of the UK Arbitration Act 1996 to have the award recognised and enforced as a judgment of the High Court of England and Wales, which was granted.
4. Relying on the English judgment, the Appellants applied to register it in Malaysia under the Reciprocal Enforcement of Judgments Act 1958 (“REJA”). The Respondent applied to set aside the registration. The High Court dismissed the application, holding that the statutory grounds under REJA were not made out.
5. On appeal, the Court of Appeal allowed the Respondent’s application and ordered a trial of issues under Order 67 rule 9(2) of the Rules of Court 2012, on the basis that allegations of fraud and jurisdiction warranted oral evidence. The Appellants appealed to the Federal Court.

1. Whether an arbitral award that has been converted into a foreign judgment may be enforced in Malaysia through REJA, even though the Arbitration Act 2005 also provides a statutory mechanism for enforcing awards?
2. Whether the Malaysian courts, when hearing an application under REJA, may conduct a de novo rehearing or a “trial of issues” to revisit matters already decided by the foreign tribunal and the foreign court?

(1)  Whether an arbitral award that has been converted into a foreign judgment may be enforced in Malaysia through REJA, even though the Arbitration Act 2005 also provides a statutory mechanism for enforcing awards?

(a) The Federal Court answered this question in the affirmative. The Court held that a foreign judgment of a competent court recognising and enforcing an arbitral award falls within the scope of REJA and may be registered under that Act.

(b) The Federal Court held that REJA is concerned with the enforcement of foreign judgments, whereas the Arbitration Act 2005 governs the enforcement of arbitral awards as such. The Court found that there is no express or implied provision in the Arbitration Act 2005 excluding the operation of REJA in respect of foreign judgments arising from arbitral awards. The statutory schemes address different juridical bases of enforcement and are not mutually exclusive (paras [207]–[214]).

(c)  The Court further stated that, a foreign judgment which is final and conclusive may be enforced in Malaysia subject only to the statutory grounds set out in section 5 of the Act. The Court reasoned that where an arbitral award has been recognised and enforced as a judgment of a foreign court, such judgment falls within the scope of REJA and is enforceable under that framework (paras [210]–[213]).

(d) Thus, the Federal Court held that the Appellants were entitled to seek enforcement of the English judgment under REJA, and the Respondent could not resist registration merely on the basis that the Arbitration Act 2005 provides an alternative enforcement mechanism.

(2)  Whether the Malaysian courts, when hearing an application under REJA, may conduct a de novo rehearing or a “trial of issues” to revisit matters already decided by the foreign tribunal and the foreign court?

(a) The Federal Court answered this question in the negative. The Court held that the role of the Malaysian court under REJA is strictly limited to determining whether any of the statutory grounds for refusal of registration under section 5 of REJA have been made out.

(b) The Federal Court held that REJA does not confer upon the registering court any supervisory or appellate jurisdiction over the foreign tribunal or the foreign court. The Court emphasised that the REJA court is not entitled to reopen or reconsider the merits of the dispute, as doing so would undermine the finality of foreign judgments and defeat the legislative purpose of REJA (paras [305]–[309]).

(c)  The Court further explained that the ordering of a trial of issues would amount, in substance, to a de novo rehearing of matters already adjudicated upon. Such an approach is inconsistent with the limited and exceptional nature of the defences available under REJA. The Court stated that the correct approach is one of minimal curial intervention, confined to the express statutory grounds (paras [315]–[319]).

(d) In the present case, the Court held that the Court of Appeal had erred in directing a trial of issues, as the matters sought to be reopened had already been determined by the London arbitral tribunal and confirmed by the English High Court. Accordingly, no trial of issues was permissible (para [321(1)(a)]).

1. The Federal Court allowed the appeal and set aside the Court of Appeal’s order, holding that no trial of issues was permitted in this context and confirming that the English judgment enforcing the London arbitral award could be properly registered in Malaysia under REJA.

1. No re-litigation: Matters already decided in arbitration cannot be reopened under REJA by ordering a trial of issues.
2. The AA does not override or displace REJA; both routes remain valid and independent.
3. Malaysian courts must respect the findings of foreign tribunals and foreign courts, in line with international comity and reciprocity.