This article was first published on Global Arbitration Review in May 2024; for further in-depth analysis, please visit the GAR Know-how “Litigation: Malaysia“.

Authors: Noor Muzalifah Shabudin, Mohd Irwan Ismail, Chia Eng Yi, and Yap Jing Wen


1. Describe the general organisation of the court system for civil litigation.

The three principal branches of government in Malaysia are the executive, the legislature and the judiciary. Malaysia adheres to the principle of separation of powers where these three institutions are independent of each other. The judiciary is independent of the executive and legislature in Malaysia.

The Malaysian judicial system is predominantly derived from the English common law system by reference to parliamentary democracy and constitutional monarch. The judicial system in Malaysia is structured into five tiers: the Magistrates’ Court, the Sessions Court, the High Court of Malaya as well as the High Court of Sabah & Sarawak, the Court of Appeal of Malaysia and, finally, the Federal Court of Malaysia.

Subordinate courts comprise the Magistrates Court and the Sessions Court. These courts do not have appellate jurisdiction, hence are unable to consider and/or determine appeals. They primarily function as the courts of first instance, which is a euphemism for “where cases begin”. The Subordinate Courts were initially established pursuant to the Subordinate Courts Act 1948 (the SCA 1948).

The High Court, the Court of Appeal and the Federal Court are the three Superior Courts within the Malaysian judicial system. Each of these courts possesses appellate jurisdiction, which grants them the authority to hear appeals and subsequently modify, alter, revise or amend any judgment (if required).

The High Court assumes a dual-role function, serving as both the Court of first instance and the initial review authority for appeals originating from both the Magistrates Court and Sessions Court.

The Court of Appeal serves as the initial appellate authority for all disputes that stem from the High Court. However, it is the final appellate authority for all disputes that originate in the Sessions Court or Magistrates Court. There are instances where matters are considered non-appealable under section 68(1) of the Courts of Judicature Act 1964. For instance, a claim cannot be the subject of an appeal to the Court of Appeal unless the sum involved exceeds 250,000 ringgit, save and unless the Court of Appeal grants leave to do so.

The final stage of appeal for all matters that originated at the High Court, including both civil and criminal matters, is the Federal Court. However, subordinate courts have the authority to directly refer significant legal issues with specific regard to constitutional law disputes and/or significant public interest cases directly to the Federal Court.

Appointment of judges

The Yang di-Pertuan Agong (ie, the King of Malaysia), as a constitutional monarch in Malaysia, appoints judges in accordance with the advice or recommendation of the Prime Minister of Malaysia (Prime Minister). Prior to presenting his advice to the Yang Di Pertuan Agong, the Prime Minister will seek a recommendation report of qualified persons from the Judiciary Appointment Commissioner (JAC) as required under the Judicial Appointments Commission Act 2009. The report generally contains the list of suggested candidates and other information necessary for the Prime Minister’s recommendation. Based on the recommendation, the Prime Minister will consult the Chief Justice of Malaysia. This is an integral part of the appointment procedure. This procedure guarantees that judicial appointments are determined by taking into account a multitude of factors, such as integrity, legal acumen and experience. This process is provided for under article 122AB of the Federal Constitution.

After being appointed, the judges fulfil their duties until they attain the mandatory retirement age, which is generally 66 years of age. Based on article 125 of the Federal Constitution, judges in Malaysia are expected to administer justice impartially and uphold the rule of law in the absence of interference from the executive or legislative branches of government.

Furthermore, Malaysia adheres to the doctrine of stare decisis, which is the legal principle of deciding cases based on precedent. As Malaysia operates under a common law legal system inherited from the British colonial period, judicial decisions serve as binding precedents for future cases. Stare decisis ensures consistency, predictability, and stability within the Malaysian legal system by requiring courts to follow prior decisions made by higher courts within the same hierarchy. Nonetheless, there may be exceptions or instances where courts can deviate from precedent under specific circumstances. See the decision in Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149.

2. Give an overview of basic procedural principles that govern civil litigation in your jurisdiction.

In Malaysia, civil litigation operates within a structured framework governed by core procedural principles. At the heart of this framework lies the adversarial approach, where opposing parties present their cases before an impartial court presided over by a judge acting as a neutral arbiter. This means that each side advocates for their position, and the judge makes decisions based on the arguments of law and fact and evidence presented.

Jurisdiction extends to both the subject matter of the dispute and the parties involved, establishing the legal boundaries within which the litigation operates. Before proceeding with a case, parties must ensure that the court holds jurisdiction over all relevant aspects of a dispute.

Pleadings consisting of a statement of claim, defence and/or counterclaim, reply and/or rejoinder, contain material facts and act as the foundation upon which subsequent legal arguments and evidence are built, guiding the progression of the case through the judicial system.

The case management process facilitates the smooth progression of cases by offering opportunities for pretrial organisation; setting timelines and exploring potential avenues for settlement are also basic procedural principles in Malaysia’s civil litigation. Through effective case management, courts can ensure that litigation proceeds efficiently and effectively, minimising delays and promoting timely resolution of disputes. The procedural rules governing the conduct of litigation in Malaysia are contained in the Rules of Court 2012, which has been deemed as being subsidiary legislation.

Evidence forms the cornerstone of civil litigation, encompassing witness testimonies, documents and expert reports. The Evidence Act 1950 governs the admissibility and presentation of evidence, ensuring that only relevant and reliable information is considered by the court. Parties must adhere to it to maintain the integrity of the litigation process and promote fair and just outcomes.

Furthermore, civil trials in Malaysia are conducted without a jury, with parties presenting evidence, examining witnesses, and presenting legal arguments to support their positions. The judge presiding over the trial evaluates the evidence and legal arguments presented by each party and renders a judgment based on the merits of the case.

Lastly, following trial proceedings, parties retain the right to appeal judgments or decisions to a higher court. The appellate court reviews the lower court’s decisions for errors in law, fact or procedure and may affirm, reverse or modify judgments accordingly. This appellate process ensures that parties have recourse in cases where they believe legal errors have occurred, promoting the integrity and fairness of the legal system.

3. Describe the general organisation of the legal profession.

In Malaysia, a law degree from an accredited university or institution serves as a starting point. Generally, unlike overseas law graduates, local law graduates are exempted from taking the Certificate in Legal Practice (CLP) examination.

To be considered for the local bar exams (ie, CLP), individual applicants are required to achieve a passing score on an examination that assesses their knowledge of Malaysian law and/or legal system and procedures. Individuals who successfully completed their bar exam or earn a law degree from a local university are granted an exemption from this particular step.

The CLP or the local bar exam is a pre-condition to become qualified legal practitioners in Malaysia. It is open for Malaysian citizen or an individual holding a permanent resident status, citizens of Brunei Darussalam and individuals with an LLB from recognised universities in the United Kingdom, Australia, New Zealand, as well as some Malaysian universities such as the University of Malaya and University Technology Mara. The programme is exam based such that applicants will be assessed on various subjects such as civil procedure, criminal procedure evidence, etc.

Meanwhile, the United Kingdom’s Bar Exam is slightly different. It is known as the Bar Practising Course (formerly known as the Bar Professional Training Course or BPTC). It is a vocational training programme in the UK designed for individuals aspiring to become barristers in England and Wales. It is open for Malaysian citizens or an individual holding a permanent resident status to apply. The programme requires applicants to meet specific criteria including holding a law degree with at least a lower second-class honours or with a graduate diploma in law. Applicants must meet English language proficiency requirements and gain admission as student members of one of the four Inns of Court, which are professional associations for barristers in England and Wales. The programme is structured into a few stages including core courses, optional courses (and selective courses).

Following that, the individual applicants proceed to pupillage for a period of nine months, wherein they acquire firsthand experience working under the guidance of a pupil-master. To be admitted as an advocate and solicitor of the High Court of Malaya, a pupil must submit documentation to the High Court including a certificate of pupillage completion, followed by an admission ceremony and registration with the Malaysian Bar Council as a formality. Once admitted, an advocate and solicitor can appear at all levels of courts without any distinction. However, the right to appear is limited to the High Court of Malaya. To be eligible to appear in Sabah and Sarawak, one must be admitted to the High Court in Sabah and Sarawak and registered under the Advocates Ordinance [Sabah Cap 2] or the Advocates Ordinance [Chapter 110 (1858 Edition)]. See the decision in Datuk Hj Muhammad Tufail Bin Mahmud & Ors v Dato’ Ting Cheuk Sii [2009] 4 MLJ 165.

As for foreign lawyers, applicants are permitted to practise law in Malaysia under specific regulations outlined in the Legal Profession Act 1976. This law provides pathways for foreign lawyers to offer their legal services within the country. Firstly, the Legal Profession (Qualified Foreign Law Firms and Qualified Foreign Lawyers) Rules 2019 allow foreign law firms to establish themselves as Qualified Foreign Law Firms (QFLFs) in Malaysia. QFLFs are authorised to provide legal services in relation to (i) limited aspects of Malaysian law, (ii) international law and foreign law, subject to certain regulations.

The QFLFs are permitted to offer advice on Islamic transactions provided they can demonstrate expertise in this area of law. Conversely, based on Rule 2 of the Legal Profession (Qualified Foreign Law Firms and Qualified Foreign Lawyers) Rules 2014, the restricted areas of law for QFLFs are constitutional law and administrative law, conveyancing, criminal law, family law, succession, trust, retail banking, registration of intellectual property and appearing or pleading in Malaysian courts or quasi-judicial bodies.
Second, foreign lawyers can apply for admission as a foreign lawyer under the Legal Profession (Admission and Enrolment) Rules 2013. This admission is typically granted for particular matters or transactions, contingent upon approval by the Bar Council of Malaysia.

Third, the Limited Practice Scheme provided by the Bar Council of Malaysia for foreign lawyers who wish to offer legal services in specific areas of law on a temporary basis. Under this scheme, foreign lawyers can advise on certain matters for a limited duration under the supervision of a Malaysian advocate and solicitor.

Foreign lawyers practising in Malaysia must comply with the regulations specified in the Legal Profession Act 1976 and other relevant legislation. Additionally, they are expected to adhere to the professional and ethical standards applicable to the legal profession in Malaysia. They may also face limitations on the types of legal services they can provide.

Furthermore, in Malaysia, there are no specialised plaintiffs’ or defendants’ bars. The absence of specialised plaintiffs’ or defendants’ bars is due to the nature of the services rendered being contingent upon the law firm in question.

4. Give a brief overview of the political and social background as it relates to civil litigation.

In Malaysia, the attitude towards litigation is diverse, with recognition of its importance as part of the dispute resolution environment as a whole alongside a growing preference for alternative methods such as arbitration and/or mediation. While litigation is acknowledged as being a preferred choice particularly for commercial disputes in the domestic context or where there is no arbitration clause, one has to be cognisant of both time and cost implications.

The government in Malaysia prioritises policies aimed at facilitating access to justice, enhancing legal system efficiency, and ensuring fairness as part of the dispute resolution framework. Efforts are directed towards promoting alternative dispute resolution methods and reducing reliance on traditional court processes.

Ongoing reforms in Malaysian civil litigation focus on alleviating issues like court congestion, delays and costs. Measures include the implementation of online case management systems, specialised courts, and the general adoption of digital technologies for streamlined processes.

Moreover, caseloads in Malaysian civil litigation vary based on factors like population density and economic activity, though Malaysia is not typically regarded as an excessively litigious jurisdiction compared to some other jurisdictions such as India, for instance.

In Malaysia, there are notable “professional” or activist or who frequently initiate legal actions, including public interest groups and individuals advocating for social or environmental causes such as non-governmental organisations. Their litigation efforts often shape legal discourse and influence public policy.


5. What are the sources of law and rules governing international jurisdiction in civil matters?

The Courts of Judicature Act 1964 serves as the main legislative foundation governing international jurisdiction in civil matters in Malaysia. This act outlines the jurisdictional framework of the Malaysian courts. Alongside this act, relevant provisions pertaining to international jurisdiction can also be found in other statutes and subsidiary legislation, such as the Specific Relief Act 1950 and the Rules of Court 2012, the Rules of the Court of Appeal 1994, the Rules of the Federal Court 1995 and the Rules of the Special Court 1994. Together, these provisions collectively establish the legal basis and parameters for addressing jurisdictional issues in civil cases with international implications within the Malaysian legal system.

6. What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?

The extent to which a court has the power to dispense justice is known as its jurisdiction. A court’s jurisdiction can be divided into three groups.

Jurisdiction over a subject matter

The “original jurisdiction” of a court pertains to its jurisdiction over a subject matter. It might be interpreted as the right to determine the subject matter of the action, suit, or proceeding. In actuality, the High Court is only involved in situations that go outside the purview of other lower courts, inferior tribunals or other adjudicatory bodies. This is because some courts are not allowed to consider the outcomes of a specific case. For instance, being a subordinate court, the Session Court lacks the authority to enforce a trust. It will therefore fall under the jurisdiction of the High Court in this case.

Territorial or local jurisdiction

Generally speaking, each court has specific boundaries established by statutes that it cannot cross in the course of carrying out its duties. The territory of all states in Malaysia is included in the local jurisdiction of the High Court of Malaya. On the other hand, the High Court of Sabah and Sarawak covered all matters in the states of Sabah and Sarawak.

The location of the cause of action occurred, the defendant’s place of residence or business, the residential or business place of one or more defendants, the location where the facts of the proceedings are alleged to have occurred, and any other reasons that make it desirable for the proceeding to be heard in the interests of justice are the five main factors that are taken into consideration when determining the local jurisdiction.

Pecuniary jurisdiction

The term “pecuniary jurisdiction” describes the minimum amount necessary in a certain case for the court to have the authority to hear it. To put it briefly, the subordinate courts have limited financial jurisdiction, while the High Court has unrestricted jurisdiction. Any case that does not include a dispute over one million ringgit is admissible before the Session Court. Any dispute under consideration that does not exceed 100,000 ringgit shall be heard by the First Class Magistrate. The Second Class Magistrate, on the other hand, is qualified to consider any case where the disagreement is over 10,000 ringgit.

However, in the event that both parties reach a mutual agreement on the forum in which their dispute will be resolved, that forum constitutes a competent jurisdiction. The Malaysian courts have a tendency to uphold a forum selection clause due to its status as a contractual provision between the involved parties

7. Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?

Forum shopping may occur due to considerations such as convenience for the party or the expectation of judicial bias in their favor. In response, the other party may seek a change of venue by petitioning the court to transfer the case to a more suitable jurisdiction or by seeking injunctive relief against the other party, thereby halting proceedings in the original forum. Courts, in considering such requests, evaluate factors such as the natural forum, or the jurisdiction with the closest connection to the case and parties, as well as principles of judicial comity, which entail a respectful adherence to the decisions of other courts. The overarching aim is to balance the interests of both parties to ensure fairness and avoid injustice while also upholding the integrity of the legal process. Ultimately, courts aim to prevent undue advantage for either party and promote the principles of equity and fairness in the administration of justice. See the decision in Hondaafushi Investments Pvt Ltd & Ors v Export-Import Bank Malaysia Bhd [2024] 8 MLJ 813.

8. How will a court treat a request to hear a dispute that is already pending before another forum?

Ultimately, the court will determine whether it is the most appropriate forum to hear a dispute. When determining the most appropriate forum to hear a dispute, the courts in Malaysia will carefully assess various factors to ascertain the forum with the most real and substantial connection to the case. One crucial consideration is the convenience and expense associated with each forum. This involves evaluating factors such as the ease of travel for the parties and witnesses, as well as the costs involved in attending court proceedings. Additionally, the availability of witnesses and evidence in each jurisdiction would be examined to ensure that the forum chosen allows for a thorough and fair adjudication of the case.

Furthermore, the courts will consider the applicable law governing the relevant transaction or dispute. If the dispute involves contractual matters, for instance, the court will assess which jurisdiction’s laws govern the contract and whether the chosen forum is equipped to interpret and apply these laws effectively.

Moreover, the location where the parties reside or conduct business are significant factors in determining the appropriate forum. The court would examine whether the chosen forum has a meaningful connection to the parties involved and whether it is the most suitable venue for resolving the dispute based on their geographical ties.

Overall, the courts in Malaysia will conduct a comprehensive analysis of these factors to identify the forum with the closest connection to the dispute and the parties involved. By prioritising considerations such as convenience, expense, availability of witnesses, applicable law, and party locations, the court aims to ensure that the chosen forum is best positioned to administer justice fairly and effectively in the given circumstances. See the decision in BSNC Leasing Sdn Bhd V Sabah Shipyard Sdn Bhd & Ors [2000] 2 MLJ 70.

9. How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

Malaysian courts are generally supportive of arbitration as an alternative dispute resolution mechanism. This support for the arbitral process assuming the subsistence of a valid arbitration agreement is rooted in statutory provisions such as section 10 of the Arbitration Act 2005, which delineates the court’s role when confronted with a request to suspend court proceedings in favor of arbitration. If one party seeks a halt of court proceedings in favour of arbitration, the court must oblige and refer the parties to arbitration, unless it determines (i) the arbitration agreement to be invalid, unenforceable or impracticable, or (ii) if the party seeking a stay has taken a step in the proceedings and thereby submitted to the jurisdiction of the High Court.

In summary, Malaysian courts prioritise the enforcement of arbitration agreements and typically refrain from intervening in arbitration proceedings unless there are significant reasons to do so, like procedural irregularities or fraud. This judicial approach aims to bolster the efficiency and efficacy of arbitration as an alternative method of dispute resolution.

10. May courts in your country review arbitral awards on jurisdiction?

The courts generally have limited powers to review arbitral awards on jurisdiction. The country’s arbitration law, primarily governed by the Arbitration Act 2005, reflects the principles of the UNCITRAL Model Law on International Commercial Arbitration. Under this framework, Malaysian courts adopt a pro-arbitration approach, recognising and enforcing arbitral awards as final and binding, with limited grounds for judicial intervention.

However, Malaysian courts retain the authority to review arbitral awards under certain limited circumstances. Section 37(1) of the Arbitration Act 2005 grants the court the authority to decide whether to overturn an arbitral award based on specific grounds outlined in the law. These grounds include factors like procedural unfairness, misconduct, or if the award goes against public policy. However, whether the court decides to overturn an arbitral award depends on the unique circumstances of each case. In simpler terms, the court has the power to overturn an arbitral decision, but it will carefully consider the details of the case before making a decision. The threshold requirements for setting aside an arbitral award under section 37(1) of the Arbitration Act 2005 is a high one. See the decision in SQA Builders Sdn Bhd v Luxor Holdings Sdn Bhd & Anor and other cases [2023] 10 MLJ 204.

11. Are anti-suit injunctions available?

Anti-suit injunctions are available in Malaysia as the Malaysian courts have the authority to stop someone instituting and pursuing legal proceedings in a foreign court if it is necessary to prevent a lot of different legal cases on the same matter. This power is derived specifically from sections 52(3)(e) and 54(a) of the Specific Relief Act 1950.

Section 52(3)(e) Specific Relief Act 1950 states that if someone is causing trouble with another person’s property rights, the court can grant a prohibitory injunction.

Section 54(a) Specific Relief Act 1950 adds that generally, courts cannot interfere with legal cases that have already started. However, if restraining legal proceedings is necessary to halt a series of separate legal cases, then the court can step in and issue an injunction to prevent it.

In discussions surrounding anti-suit injunctions within the realm of international law, the concept is typically categorised into three primary scenarios. First, in what are termed “single forum cases”, a party seeks intervention from a Malaysian court to halt legal proceedings initiated by another party in a foreign court, which exclusively possesses jurisdiction over the subject matter. Here, the Malaysian court’s involvement stems solely from the fact that the defendant falls under its jurisdiction, regardless of any other connections to Malaysia.

Second, “alternative forum cases” arise when multiple jurisdictions are available for resolving a particular dispute, and Malaysia is one of the options. In such instances, a party may petition the Malaysian court to prevent the case from being heard elsewhere, presenting Malaysia as a viable alternative venue.

Lastly, “forum selection cases” involve contractual agreements between parties stipulating that any legal disputes between them will be adjudicated exclusively in Malaysian courts. If one party attempts to initiate proceedings in a foreign court contrary to this agreement, it could be viewed as a violation of the contract. In such circumstances, the Malaysian court may intervene to enforce the agreed-upon forum selection and halt the foreign proceedings.

While these classifications provide a framework for understanding the application of anti-suit injunctions, it is crucial to recognise the flexibility inherent in the court’s jurisdiction. The court’s decisions are influenced by the specific details of each case, aiming to uphold principles of fairness and justice while respecting international relationships and legal agreements. See the decision in BSNC Leasing Sdn Bhd V Sabah Shipyard Sdn Bhd & Ors [2000] 2 MLJ 70.

12. Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

Generally, there are few entities that enjoy sovereign immunity, such as the Rulers in Malaysia pursuant to articles 32(1) and 181(2) of the Federal Constitution, as well as foreign states. Malaysia adopts the doctrine of restrictive immunity and not absolute immunity. As for the Rulers of Malaysia, legal action can be initiated against the Rulers before the Special Court. There is no express provision on the Federal Constitution of Malaysia that accords similar rights to a foreign rule or other foreign state official.

In so far as sovereign immunity of foreign state officials is concerned, section 3 of the Civil Law Act 1956 refers to the common law. But the position in Malaysia has since evolved where restrictive immunity applies rather than the initial concept of pure absolute sovereign immunity. Parliament in Malaysia has since passed legislation such as the Diplomatic Privileges (Vienna Convention) Act 1966, which as its preamble suggests, incorporates the Vienna Convention on Diplomatic Relations (VCDR), and the International Organisations (Privileges and Immunities) Act 1992. See the decisions in Subramaniam a/l Letchimanan v The United States of America and another appeal [2021] 7 CLJ 371 and Hii Yii Ann v Deputy Commissioner of Taxation of The Commonwealth of Australia & Ors [2018] 7 MLJ 393.

Recently, the Lower House of Parliament passed the Jurisdictional Immunities of Foreign States Bill 2023 to allow for the introduction of a new act to be called the Jurisdictional Immunities of Foreign States Act 2003. It seeks to codify the grant of immunity to a head of state and head of government of a foreign state. Nevertheless, the bill has yet to be gazetted so as to come into force. The proposed Act imposes restrictions on the grant of immunity to a foreign state, head of government and Head of State by reference to commercial transactions or contracts of employment, personal injury claims, determination of rights over property, intellectual property, participation in companies, recovery of taxes, ownership of ships and agreements on arbitration.


13. How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?

In Malaysia, a writ or originating summons is required to commence a civil claim. It remains valid for a period of six months from the date of issuance. A sealed writ must be accompanied by a statement of claim or a concise description of the nature of the claim put forth and the relief that is being pursued. In accordance with the latest amendments to the Rules of Court 2012, the writ may be delivered to the defendant via electronic transmission, registered mail or personal service. The defendant typically has 14 days from the date of service of the writ and statement of claim to appear in court and refute the claim, in addition to filing a statement of defence and counterclaim. The plaintiff is then afforded an additional 14 days to file a response, including a response to the defence and counterclaim. The defendant may be subject to a judgment in default if they fail to appear in court within the designated time frame and/or to file a defence.

By filing for summary judgment, a plaintiff can obtain a final judgment without having to go to trial. The primary test is whether the defendant has no defence. The defendant on the other hand must be able to demonstrate a triable issue that necessitates a trial of the action.

A party may strike out, in whole or in part, a plaintiff’s writ or statement of claim that fails to establish a reasonable cause of action, is scandalous, frivolous or vexatious, threatens to obstruct a fair trial, or constitutes an abuse of process.
Order 34 of the Rules of Court 2012 regulates pretrial case management of a case. Under this provision, the court will actively case manage the action and impose time limits for submission of documents, issues to be tried, statement of agreed facts between the parties, list of witnesses, bundle of pleadings, etc, to facilitate a smooth process for trial. The court may also guide the parties on various issues, including the possibility of resolving the conflict through alternative resolution methods such as mediation.

14. What are the requirements for filing a claim? What is the pleading standard?

The statement of claim must expressly outline the nature of the claim, including material facts necessary to form a complete cause of action and the relief. This requirement ensures clarity regarding the plaintiff’s legal objectives in the case as stated in Order 18 Rule 5 of the Rules of Court 2012. These facts should exclude legal arguments or evidence as emphasised in Order 18 Rule 7 of the Rules of Court 2012. It is crucial to plead all material facts because parties generally cannot at a later stage introduce evidence to support unpleaded facts during the trial.

Additionally, Order 18 Rule 1 of the Rules of Court 2012 mandates that an endorsed statement of claim must be served on the defendant within 14 days of the defendant entering an appearance. This ensures that the defendant is promptly made aware of the claims being brought against them and has sufficient time to prepare their defence.

15. What are the requirements for answering claims? What is the pleading standard?

Order 18 Rule 2(1) of the Rules of Court 2012  requires a defendant who has entered an appearance must serve a defence on the plaintiff within 14 days. Failure to do so, as outlined in Order 19 Rules 2-7, allows the plaintiff to enter judgment in default of defence. The purpose is to ensure that the plaintiff is duly informed of the exact nature of the defendant’s defence to the statement of claim.

Order 18 Rule 3 of the Rules of Court 2012 emphasises the necessity for a defendant to address the allegations made by the opposing party. This means that the defence should directly respond to the claims put forward by the plaintiff, providing clarity and context to the court regarding the defendant’s stance on the matter.

In addition, Order 18 Rule 8 of the Rules of Court 2012  underscores the importance of specifically pleading relevant matters. This ensures that all material facts essential for formulating a complete cause of action are properly articulated in the pleadings. Notably, Order 18 Rule 7 of the Rules of Court 2012  emphasises that pleadings should contain only material facts, excluding legal arguments or evidence, and should avoid the anticipation of possible defences. Furthermore, the defendant also can bring a defence of set-off or counterclaim in the statement of defence.

16. What are the rules regarding further briefs and submissions?

Order 20 Rule 5 of the Rules of Court 2012 provides for the provision of amendment of pleadings, documents, etc either with the leave or without the leave of the court, depending on the stages of the pleadings. There is also an option to accede to amendment by written agreement of the parties, which negates the filing of a formal application under Order 20 Rule 12 of the Rules of Court 2012. In respect of amendment with the leave of Court, a formal application will have to be made with an affidavit in support. The amendment application must be made in good faith, any prejudice caused to the other party must be able to be compensated by costs and the proposed amendment ought not to change the character of the suit.

In so far as amicus brief or amicus curiae is concerned, the legal system recognises the concept of amicus curiae, or “friend of the court”. This allows individuals or organisations not directly involved in a case to provide the court with information or expertise on matters of law or public interest. While there may not be specific rules governing the submission of amicus briefs, interested parties can seek permission from the court to intervene or offer assistance in cases where their knowledge or insights could benefit the court’s understanding of complex legal issues. Ultimately, the decision to accept such submissions rests with the presiding judge, who evaluates their relevance and potential contribution to the case at hand. Thus, while not as prevalent or as common in practice as in other jurisdiction, the concept of amicus curiae remains recognised in Malaysia, allowing for third-party interventions in cases of significance or public interest.

17. To what degree are civil proceedings made public?

In Malaysia, civil proceedings are typically conducted in an open manner, allowing public access to court hearings as a fundamental principle of transparency in the legal system. This means that individuals, including journalists and observers, are generally allowed to attend civil court sessions. However, there are exceptions to this rule, particularly when cases involve sensitive information or privacy considerations. For example, matters concerning family law or confidential commercial details may be heard in closed court or in camera sessions to protect specific interests. Parties can also apply to court by way of a formal application for the preservation of privacy and confidentiality of cause papers filed in court so as to seal them from access to the public.

Despite the opportunity for public attendance, there are limitations on reporting certain aspects of proceedings, especially those involving minors or confidential information. Access to court records is also regulated, with restricted online availability and controlled access granted only to authorised parties involved in the case. While media coverage of civil proceedings is permitted, it is subject to guidelines aimed at ensuring fair and accurate reporting while maintaining the integrity of the judicial process. However, this media coverage is not permitted in the court while the proceeding is conducted. Overall, while civil proceedings in Malaysia strive for openness, measures are in place to balance transparency with the protection of privacy rights and sensitive information.

18. Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?

Courts may provide interim evaluations on factual or legal disputes, particularly if a party requests them during litigation. These evaluations serve to clarify aspects of the case, address initial issues, or expedite legal proceedings. Nonetheless, they usually have restricted applicability and do not represent conclusive judgments. See the decision in JAKS Resources Bhd v Star Media Group Bhd and other appeals [2023] 6 MLJ 114.

Concerning settlements, courts typically advocate for parties to consider settlement possibilities during litigation. Settlements offer advantages by conserving time and resources for both parties and the legal system. Courts often adopt a supportive stance towards settlement, offering advice or proposing methods such as mediation or negotiation to reach resolution without going to trial. See Practice Direction No. 4 of 2016.

In Malaysia, there is no mandatory settlement conference prescribed by law for civil litigation. However, courts may encourage parties to engage in settlement discussions throughout the litigation process. Additionally, alternative dispute resolution mechanisms such as mediation is commonly used in Malaysia to facilitate settlement outside of court. While participation in these methods may not be mandatory in all cases, they are often encouraged as a means of resolving disputes efficiently and cost-effective. Ultimately, the approach to settlement conferences and alternative dispute resolution may vary depending on the specific court and the nature of the case. To this end, there is a court-assisted mediation process where parties by consent can agree to have a dispute before the courts mediated before the court mediation centre.

19. Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?

In Malaysia, although it is not obligatory to refer disputes to mediation or another form of Alternative Dispute Resolution (ADR) prior to or during litigation, doing so is strongly encouraged by the courts as a viable strategy to resolve conflicts efficiently and economically. This can be seen via Order 34 Rule 2(2) of the Rules of Court 2012 which allows the Court to direct meditations for the disputing parties. Moreover, the Malaysian legal system acknowledges the advantages of Alternative Dispute Resolution (ADR) in facilitating harmonious resolutions and alleviating court workload.

In Malaysia, at various phases of litigation, the courts have the authority to refer parties to mediation or other forms of ADR. Throughout case management conferences and pretrial proceedings, judges may encourage parties to consider alternative dispute resolution (ADR) methods such as mediation. Furthermore, prior to commencing litigation or at any juncture throughout the proceedings, the disputing parties may autonomously choose to engage in mediation or ADR.

Interim relief

20. What are the forms of emergency or interim relief?

Interim relief pertains to temporary legal measures authorised by a court to maintain the existing situation or safeguard the rights of involved parties throughout the duration of a legal case. Its purpose is to offer immediate or provisional assistance until a final decision is reached on the merits of the case.

These temporary measures can manifest in different forms, such as injunctions, restraining orders, or other provisional actions. They are designed to prevent imminent harm, protect the parties’ rights or assets, or ensure compliance with specific obligations during the litigation process.

For instance, a court might issue an interim injunction to prohibit a party from disposing of assets or engaging in particular activities until the court can thoroughly review the case and render a final judgment. Similarly, a temporary restraining order could be granted to avert immediate harm or uphold the status quo until a hearing is conducted to determine if a preliminary injunction is warranted.

Interim relief serves as a vital mechanism to prevent unfair prejudice or harm to parties while they await a conclusive resolution of their legal dispute. Its aim is to uphold the equitable balance of rights and interests among the parties amidst the often prolonged and intricate litigation proceedings. See the decision in JAKS Resources Bhd v Star Media Group Bhd and other appeals [2023] 6 MLJ 114.

21. What must a petitioner show to obtain interim relief?

In seeking interim relief under section 11(1) of the Arbitration Act before the initiation of any arbitral proceedings, several crucial considerations must be satisfied. First, the applicant must demonstrate a valid cause of action against the party from whom interim relief is sought and the fact that imminent harm will caused unless interim relief is granted. Malaysian courts possess the authority to grant interim relief in aid of international arbitration proceedings, even if the arbitral dispute is being determined outside of Malaysia, as stipulated in section 11(3) of the Arbitration Act. Second, the existence of a bona fide “arbitration agreement”, as defined within the relevant provisions of the Arbitration Act, is essential. Third, the relief sought must be temporary in nature, devoid of permanent effects. The interim relief requested must actively support or facilitate the proposed arbitral proceedings, failing which it may result in the abuse of the court process or oppression of the affected party. Lastly, the commencement of arbitral proceedings within a reasonable timeframe is imperative, as unreasonable delays may also amount to abuse of the court process or oppression of the party involved. Thus, adherence to these criteria is pivotal in ensuring the appropriate and equitable granting of interim relief in arbitration matters before the commencement of formal proceedings. See the decision in JAKS Resources Bhd v Star Media Group Bhd and other appeals [2023] 6 MLJ 114.


22. What types of decisions (other than interim relief) may a court render in civil matters?

The courts have the authority to make various types of decisions beyond granting interim relief. For instance, a final judgment, which is the court’s ultimate decision on the merits of the case after considering all evidence (oral and written) and legal arguments presented. This final judgment definitively establishes the rights and obligations of the parties involved and effectively concludes the litigation process. Additionally, courts may issue injunctions, either temporary or permanent, to prohibit parties from certain actions or behaviours or to mandate specific actions as outlined in legal agreements. Monetary compensation, known as damages, can also be awarded to compensate parties for losses or injuries suffered due to the actions of another. Furthermore, courts may issue declaratory judgments to clarify the legal rights and obligations of the parties without providing specific remedies. Dismissals may occur if the court finds a lack of legal merit or procedural deficiencies in the plaintiff’s claim. Additionally, courts may order one party to pay the costs and attorney’s fees incurred by the other party if deemed appropriate. These decisions represent the diverse array of outcomes that courts can render in civil matters, depending on the specifics of each case and the relief sought by the parties involved.

23. At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?

In Malaysia, courts have the authority to render decisions at various stages throughout legal proceedings, mirroring practices found in other jurisdictions. Generally, there are three stages of the proceedings in which the court may give its decision. First, during the pre-trial matters. Before a trial formally begins, courts address various pre-trial matters, including preliminary objections and interlocutory applications such as applications for interim relief. These may involve challenges to jurisdiction or procedural irregularities. Judges carefully consider legal arguments and relevant precedents to ensure fair outcomes. Precedents from prior cases guide judges in making informed decisions on pretrial motions, providing a framework for understanding how similar issues were addressed in the past.

Second, the court may give its decision after a trial. During the trial stage, courts conduct a comprehensive examination of the case’s substantive issues. This includes evaluating evidence presented by parties and rendering decisions on the case’s merits. Judges rely on precedents to interpret laws and legal doctrines consistently. By examining how similar issues were resolved in prior cases, judges uphold the integrity of the legal system, ensuring consistency and predictability in their rulings.

Lastly, the decision also may be given in the appeal stage. After a trial, parties dissatisfied with the outcome may seek recourse through the appellate process. Appellate courts review decisions made by lower courts, assessing their adherence to established legal principles. Stare decisis remains a guiding principle, as appellate judges consider precedents set by higher courts to ensure consistency in the application of legal principles. By scrutinising prior appellate decisions, judges uphold the rule of law and promote fairness in the administration of justice.

24. Under which circumstances will a default judgment be rendered?

A judgment in default of appearance is rendered against the defendant subsequent to the court’s confirmation that an originating summons or writ of summons has been properly served upon the defendant. However, in the absence of a physical appearance in court or submission of a notice of appearance within the designated time frame by the defendant, the judgment in default of appearance is entered.

A judgment in default of a defence may be entered if the defendant fails and/or neglects to file a defence to a claim within the prescribed time period as mandated by the Rules of Court 2012.

25. How long does it typically take a court of first instance to render a decision?

The duration for a court of first instance to reach a decision can vary widely based on several factors such as the complexity of a case, the court’s workload, procedural requirements and jurisdictional variations. In straightforward cases or those lacking significant complications, courts might issue judgments relatively swiftly, ranging several months. However, for more intricate cases involving extensive evidence, expert testimony or legal arguments, the process may extend up to a year or more. Additionally, factors such as resource availability, scheduling conflicts and procedural delays can further influence the timeline for delivering a decision. Therefore, parties involved in legal proceedings should anticipate potential delays and be prepared for varying time frames depending on the nature and circumstances of their case.


26. How can third parties become involved in proceedings?

There are two methods for a third party to participate in legal proceedings. First, through a joinder application, which involves adding a third party to an existing lawsuit. The objectives of this application include: (i) avoiding multiple legal actions and allowing the court to resolve disputes involving all relevant parties in a single proceeding, and (ii) preventing the repetition of identical or substantially similar questions or issues being litigated separately, potentially leading to divergent outcomes.

Second, third-party proceedings. A defendant can initiate third-party proceedings against a third party, seeking contribution, indemnity, or similar relief as sought by the plaintiff. Additionally, these proceedings may be used to address any questions or issues related to the original claim. Third-party proceedings are distinct from the primary lawsuit between the plaintiff and defendant. In these proceedings, the defendant assumes the role of the plaintiff, while the third party becomes the defendant. If the defendant is found liable to the plaintiff, they may then seek to establish their entitlement to contribution or indemnity from the third party.

Furthermore, if a party anticipates potential harm from a court ruling in favour of an intervener, they have the chance to intervene and become part of the ongoing proceedings. if a party consciously decides not to join ongoing legal proceedings as an additional defendant, despite being aware of the opportunity to do so, they should be prohibited from later initiating a separate legal action related to the same matter. In other words, by choosing not to participate in the initial proceedings when they had the chance, they forfeit the right to bring a separate claim or action based on the same set of circumstances or dispute. This principle aims to prevent parties from strategically withholding their involvement in one set of proceedings only to later initiate a separate legal action, which could lead to inefficiency, inconsistency, and potential prejudice to other parties involved in the original proceedings.

Fact-Finding and Evidence

27. Describe the rules of fact-finding in your jurisdiction.

In Malaysia, fact-finding in legal proceedings relies heavily on the presentation and evaluation of evidence. The law of evidence in Malaysia is governed by the Evidence Act 1950, which is modelled on the Indian Evidence Act. Evidence can take various forms, including witness testimony, documents, physical objects, and expert opinions. Both parties to a judicial proceeding have the rights to present evidence to establish the right or liability that they allege to exist. However, the relevancy and admissibility of evidence are questions of law to be determined by the court having regard to the rules of evidence. The question of weight to be attached to a piece of evidence is also carried out by the court by taking into account the nature of the evidence, the credibility of the evidence, the consistency of the evidence and the corroboration with other evidence, etc. See Law of Evidence in Malaysia, 2nd Edition.

28. Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?

As Malaysia follows an adversarial system, it is the responsibility of parties to civil proceedings to thoroughly investigate facts and ensure their case is well prepared, with all relevant facts and evidence presented before the court. The role of a judge is to assess the merits of the case based on the evidence presented, without directing how cases should be presented. While judges have discretion to control trials, ensuring fairness and efficiency, they usually refrain from interfering in how parties present their cases, as long as it adheres to legal requirements and practices. Judges can question witnesses and request documents but generally do so for clarification, supplementing the counsel’s questioning. However, this discretion must be exercised judiciously, avoiding unfairness or assumption of counsel’s functions. Courts should not decide issues not raised in pleadings. Also, judges cannot summon witnesses in civil trials without the consent of the parties. The Evidence Act 1950 sets limitations on the power of judges, requiring judgments based on relevant, duly proven facts, and respecting witnesses’ rights. Judges ought not cross into the role of an advocate and solicitor or disregard legal principles. These limitations ensure judges maintain objectivity and avoid being drawn into the conflict. See Malaysian Court Practice – Trial Courts; Publisher: LexisNexis Malaysia; Order 35.

29. Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?

Pursuant to Order 34, Rule 8 of the Rules of Court 2012, the parties to the proceedings and their solicitors have a duty to provide the court with all necessary information and documents to facilitate the proper handling of a legal action. Under this rule, the court has the authority to authorise the submission of certain information or documents directly to the court without disclosing them to other parties, either at its discretion or upon request. However, unless specifically permitted by the court, all information and documents must be disclosed to all the parties to the action.

Full and frank disclosure is necessary; for instance, in an ex-parte application, the applicant is required to disclose all material facts fully and fairly, including points that may be unfavourable to their case. Failure to make full and frank disclosure may result in the applicant losing the benefits of the order without delving into the merits of the case. This requirement stems from the court’s complete reliance on the applicant’s affidavit, with the opposing party typically having no opportunity to present their side. See the decision in Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 316.

In civil cases, adverse inference may be drawn against a party for failing to provide certain evidence or witnesses when there is intentional withholding or suppression of important evidence or witness testimony. However, the application of adverse inference depends on the specific circumstances of each case. Courts consider factors such as the significance of the missing evidence, its relevance to the case, and the accessibility of the evidence to the other party. Adverse inference can have serious consequences, potentially weakening the party’s position or leading to unfavourable judgments. Overall, adverse inference serves as a mechanism to encourage parties to the proceedings to provide complete and transparent evidence to the court.

30. Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

In practice, witnesses give their evidence-in-chief in the form of a witness statement. A witness statement comprises questions posed by a lawyer to the witness, along with the witness’s answers. Following the admission of the witness statement as evidence, the witness may also adduce further oral testimony under oath during the examination-in-chief, subject to cross-examination by the opposing counsel and re-examination by the counsel of the party calling him.

The purpose of examination-in-chief is to extract from witnesses all relevant facts within their personal knowledge to substantiate the case of the party who called them. Only questions relating to the relevant facts are permissible during the examination-in-chief. During the cross examination, the opposing counsel will scrutinise the accuracy and credibility of the witness’s testimony. Leading questions may be asked during this stage. The re-examination is intended to address matters raised during the cross-examination and reconcile any discrepancies that may have arisen.

Before the trial, solicitors usually prepare the witnesses by explaining court procedures regarding witness examination for a smooth and expedient trial process. However, coaching a witness to provide false evidence or testify beyond their personal knowledge is strictly prohibited in Malaysia.

31. Who appoints expert witnesses? What is the role of experts?

In civil proceedings, both the plaintiff and defendant have the right to call upon an expert witness to give evidence. An expert is appointed to assist the court on matters beyond the knowledge or expertise of the court. Under section 45 of the Evidence Act 1950, the area of expertise includes foreign law, science or art, genuineness of handwriting and finger impressions. The evidence expert witness can never go beyond an opinion and the court will examine the grounds or reasoning upon which the expert opinion is based. Experts should refrain from making conclusions on matters within the court’s jurisdiction, avoiding the risk of encroaching on the court’s functions. An expert will have to submit his or her opinion in the form of a report tendered by way of an expert’s affidavit pursuant to the requirements set out in Order 40A of the Rules of Court 2012. See the decision in Ong Chan Tow v R [1963] 1 MLJ 160.

32. Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?

Section 120(1) of the Evidence Act 1950 expressly allows a party to the civil proceedings to be a competent witnesses. A witness who is competent is also compellable to give evidence unless he is entitled to privileges as provided under the Evidence Act 1950.

Under section 114(g) of the Evidence Act 1950, an adverse inference may be drawn for non-production of an important and material witness to the case. Drawing an adverse inference is not mandatory but discretionary, having regard to the relevancy and materiality of a particular witness and whether there is deliberate withholding of evidence.

In civil cases, the general burden of proof is on the plaintiff to prove their claim. When the plaintiff fails to call a critical witness to the plaintiff’s case, they may run the risk of having an adverse inference drawn against them.

In contrast, no adverse inference will be invoked against a defendant since the defendant does not bear any legal burden to prove the case. However, when the plaintiff had established a case against the defendant but the defendant decided not to testify, the presumption may be invoked against the defendant. See the decision in Datuk Abdullah Hishan v Sharma Kumari Shukla [1999] 6 MLJ 589.

33. How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?

In Malaysia, the introduction of foreign law into proceedings involves the production of expert opinions on the relevant legal principles. Section 45(1) of the Evidence Act 1950 allows for the proof of foreign law through evidence provided by experts. Additionally, statements regarding foreign law from authoritative sources, such as law books published under the foreign government’s authority, are considered relevant under section 38 of the Evidence Act 1950. The role of an expert witness on foreign law is to inform the court about the relevant legal contents, identify statutes and other legislation, explain the approach of foreign courts to their construction, and assist the court in predicting the likely decision of a foreign court if the issue arose for decision there. Moreover, when the foreign law is not settled, the expert’s duty extends to providing an opinion on the likely decision of a foreign court, supported by underlying evidence and an analytical process.

Order 92, Rule 1 of the Rules of Court 2012 stipulates that any document to be used under the rules shall be in the national language and may be accompanied by an English translation. If a document intended to be produced to the court is not in the Malaysian official language or in English, a certified translation is necessary to aid the court in understanding and considering its contents.

34. What standard of proof applies in civil litigation? Are there different standards for different issues?

In civil cases, the general rule is that a plaintiff bears the burden of proving its claim against the defendant. A defendant only assumes the evidential burden to raise sufficient evidence. The Evidence Act 1950 does not provide for the standard of proof, therefore the common law principles in this regard are adopted. The plaintiff in a civil suit is bound to establish its claim on a balance of probabilities. ‘Proof on a balance of probabilities’ means ‘more probable than not’ as per Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372.

When fraud was alleged in a civil claim, the Malaysian Courts were previously not consistent in dealing with the standard of proof required to prove the allegation of fraud. In Sinnaiyah & Sons Sdn Bhd v.Damai Setia Sdn Bhd [2015] 5 MLJ 1, the Federal Court reaffirmed that there are only two standards of proof in law: beyond reasonable doubt for criminal cases and on the balance of probabilities for civil cases. Therefore, even if fraud is the subject of a civil claim, the standard of proof remains on the balance of probabilities.


35. What are the possibilities to appeal a judicial decision? How many levels of appeal are there?

The right to appeal a judicial decision is a creature of statute. The possibilities to appeal a judicial decision and the number of levels of appeal depend on the nature of the case and the court in which the decision was made.

Appeals from the Subordinate Courts to the High Court

The right of appeal from the Subordinate Courts to the High Court is governed by section 28 of the Courts of Judicature Act 1964. An appeal can be made to the High Court from a Subordinate Court where the amount in dispute or the value of the subject matter exceeds 10,000 ringgit but where the appeal is as to a question of law, no monetary limit applies.

Appeals from Registrar of High Court to the Judge in Chambers

A decision of the Registrar of the High Court is appealable to the judge in Chambers and the procedure for the appeal is set out in Order 56 of the Rules of Court 2012.

Appeals from the High Court to the Court of Appeal

Pursuant to section 67 of the Courts of Judicature Act 1964, any ‘judgment or order’ of the High Court can be appealed to the Court of Appeal with certain restrictions in section 68(1) of the Courts of Judicature Act 1964. No appeal can be made in the following circumstances:

  • When the value of the claim is less than 250,000 ringgit, unless leave is granted by the Court of Appeal.
  • If the judgment or order is reached through consent of the parties.
  • In cases solely concerning costs at the discretion of the Court, unless leave is granted by the Court of Appeal.
  • When a specific law declares the High Court’s judgment as final.
  • If the High Court rejects an application for summary judgment.
  • If the High Court denies a request to strike out a writ or pleading.
  • When the High Court approves an application to set aside a default judgment.

Appeals from the Court of Appeal to the Federal Court

Before an appeal can be made to the Federal Court in respect of a civil claim, the leave of Federal Court must first be obtained. The criteria that an applicant must meet for leave to appeal under section 96(a) of Courts of Judicature Act 1964 are as follows:

  • the application for leave to appeal sought must be against the decision of the Court of Appeal;
  • the cause or matter must have been decided by the High Court in exercising its original jurisdiction;
  • the question must involve a point of general principle that the Federal Court has not previously decided, or a point of importance upon which further argument and a decision of the Federal Court would be to public advantage; and
  • if the point is decided in favour of the intending Appellant, there is a prima facie case for success in the appeal.

36. What aspects of a lower court’s decisions will an appeals court review and by what standards?

The hearing of a civil appeal is generally by way of rehearing, wherein the appellate court will rehear the matter based on the documents including the notes of evidence and materials that were presented before the trial judge. The appellate court may reverse the judgment appealed against, if it comes to the conclusion that the judgment was plainly wrong. The plainly wrong test was elucidated in the case of UEM Group Bhd v Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785, where the Federal Court held that a decision is plainly wrong when the trial court demonstrates a lack of or insufficient judicial appreciation of evidence. Generally, the appellate courts are slow to interfere with the decision of the court of first instance unless it was plainly wrong. See also the decision in Gan Yook Chin (P) & anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1.

37. How long does it usually take to obtain an appellate decision?

Generally, the time taken to obtain an appellate decision may vary from months to years, depending on the various factors, including the complexity of the case, the appellate court’s and counsel’s availability, the filing of interlocutory applications, and any subsequent interlocutory appeals that may arise therefrom. Interlocutory appeals take shorter period for disposal.

Role of Domestic Courts In Arbitration Matters

38. In which conditions does your domestic arbitration law apply? Does it apply equally to purely domestic and international arbitrations, and to commercial and investor-state arbitrations?

Generally, if parties agree to have their dispute governed by Malaysian law, the Arbitration Act 2005, which is the domestic arbitration law, will apply. This means the procedures and regulations outlined in the Arbitration Act 2005 will govern the arbitration process.

On the other hand, if there’s no agreement on which laws should apply in an arbitration (such as which country’s laws), the Arbitration Act of 2005 in Malaysia states that the arbitrators have the power to decide which laws to use based on rules about conflicts between different legal systems.

When the arbitrators need to determine which laws apply, they will look at the agreements and the facts in deciding which law is most closely connected to it. For example, the relevant arbitral tribunal might consider where the transactions took place or where the arbitration is being held. This process helps it determine the appropriate laws to use in making its decisions. Thus, if the arbitrators determine that Malaysian law is the most closely connected law to the dispute, then the Arbitration Act 2005 will indeed be applicable. See Innotec Asia Pacific Sdn Bhd v Innotec Gmbh [2007] 8 CLJ 304.

Section 3 of the Arbitration Act 2005 establishes a differentiation in its application between domestic and international arbitrations conducted within Malaysia. In the case of domestic arbitrations, unless explicitly stated otherwise in the arbitration agreement, the proceedings are subject to a more comprehensive process outlined in Part III of the Arbitration Act 2005. This implies that courts have the authority to intervene in certain legal matters and may grant extensions of time for initiating arbitration proceedings if requested by either party.

Conversely, in the context of international arbitrations, the parties must expressly agree to abide by Part III of the Arbitration Act 2005 for it to be applicable to their disputes. Simply agreeing to use Malaysian law for the contract does not automatically invoke the application of Part III of the Arbitration Act 2005 in so far as international arbitration disputes are concerned. See the decision in Tan Sri Dato’ Seri Vincent Tan Chee Yioun & Anor v Jan De Nul (M) Sdn Bhd & Anor and another appeal [2019] 1 MLJ 557.

39. Give an overview of instances in which state courts come into play in domestic and international arbitration proceedings.

Pursuant to section 8 of the Arbitration Act 2005, no court shall intervene in matters governed by the Arbitration Act 2005, except where so provided in the Act.

It is only in limited circumstances that state courts may intervene in the arbitral process, for instance, in the granting of a stay of court proceedings in favour of arbitration where there is a valid agreement to arbitrate in effect. The state courts will be reluctant to allow legal proceedings before the courts to proceed should parties have expressly agreed to arbitrate. See section 10 of the Arbitration Act 2005.

Additionally, state courts may provide essential support by issuing interim measures in aid of the arbitration proceedings. These measures are crucial for maintaining the integrity of the arbitration process and may include injunctions to prevent parties from taking certain actions or orders to preserve evidence relevant to the dispute. By granting such measures, state courts help to facilitate fair and effective arbitration proceedings. See section 11 of the Arbitration Act 2005.

Moreover, state courts serve as avenues for challenging arbitral awards. Parties dissatisfied with the outcome of arbitration can seek redress in state courts on limited grounds, as provided under section 37(1)(a) to (b) and 37(2) of the Arbitration Act 2005 in seeking to set-aside an arbitral award. This includes instances where the arbitration agreement was under an incapacity or invalid, there was a denial of a right to be heard, the award contains matters beyond the scope of the arbitration, fraud, breach of natural justice and a breach of public policy. By providing a mechanism for review, state courts help maintain the integrity and fairness of the arbitral process.

Parties may also seek to oppose enforcement of an arbitral award pursuant to section 39(1)(a) and (b) of the Arbitration Act 2005 on somewhat similar grounds.

In addition to challenging awards, state courts also play a vital role in enforcing them. Once an arbitral award is issued, parties may seek enforcement through state courts, which may involve obtaining a court judgment based on the award. state courts thus ensure that arbitration awards are upheld and respected, contributing to the effectiveness of the arbitration process as a means of dispute resolution. See section 38 of the Arbitration Act 2005 and Order 69 of the Rules of Court 2012.

Finally, state courts may assist in evidence gathering for arbitration proceedings. They have the authority to issue subpoenas or orders for the production of documents, facilitating the collection of evidence necessary for a fair and thorough arbitration process. See section 11(d), section 19J, section 29 of the Arbitration Act 2005.

40. Describe the rules governing recognition and enforcement of arbitral awards in your jurisdiction. To what extent do domestic courts review arbitral awards on the substance?

In Malaysia, the rules governing recognition and enforcement of arbitral awards are outlined in sections 38 and 39 of the Arbitration Act 2005.

Under section 38, the High Court may, upon application, enforce an award of a tribunal seated in Malaysia or of a foreign state. The term ‘foreign State’ refers to a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations in 1958.

Section 39 outlines the grounds on which recognition or enforcement of an award may be refused, but only at the request of the party against whom it is invoked. These grounds include situations where a party to the arbitration agreement was under incapacity, the agreement is invalid under applicable law, proper notice was not given, the award deals with a dispute not covered by the arbitration agreement, the composition of the tribunal or procedure was not as agreed by the parties, or the award is not yet binding or has been set aside or suspended by a court in the country where it was made. Additionally, recognition or enforcement may be refused if the subject matter of the dispute is not arbitrable under Malaysian law or if the award conflicts with Malaysian public policy.

In Malaysia, domestic courts exercise limited review over arbitral awards on the substance of the dispute, adhering to the principle of minimal intervention in arbitration proceedings outlined in the Arbitration Act 2005. Once issued, arbitral awards are generally considered final and binding, with courts refraining from re-evaluating the merits of the dispute already decided by the arbitral tribunal. However, courts may intervene under specific circumstances, such as procedural irregularities affecting fairness, jurisdictional overreach, contravention of public policy or illegality. Despite these grounds for intervention, the overarching approach is to uphold the finality and enforceability of arbitral awards while ensuring fairness and adherence to legal principles. See Enforcement of Foreign Arbitral Awards and Foreign Judgment 2010] 4 MLJ xxix.

Special proceedings

41. Are class actions available?

In Malaysia, Order 15 Rule 12(1) of the Rules of Court 2012 allows a representative action or class action to be brought as long as the plaintiffs are a class of persons with common interest and common grievances. A class action allows one person to represent a group of people with similar interests in a legal case. This representative, or plaintiff, does not need individual consent from everyone they are representing. However, those represented are bound by the case’s outcome. The key is that all represented individuals must share common interests with the plaintiff, even if the relief they seek varies. This ensures fairness and efficiency in addressing shared legal issues.

According to Order 15 Rule 13 of the Rules of Court 2012, in legal matters pertaining to the estate administration of a deceased individual, trust properties, or the interpretation of written instruments including statutes, the court has the authority, under specific conditions, to appoint representatives for individuals or groups. These conditions include situations where individuals or groups cannot be easily identified or located, or where it is deemed advantageous, considering factors such as the complexity of the matter and the amount involved. See the decision in Chua Chong  Poh & Ors v Kingsley Hills Sdn Bhd & Anor [2020] 6 MLRH 187.

42. Are derivative actions available?

Section 347(3) of the Companies Act 2016 has abrogated the right of any person to bring any proceedings on behalf of a company at common law. The right to bring a statutory derivative action is found in sections 347 and 348 of the Companies Act 2016. A derivative action means an action to intervene in or defend a proceeding on behalf of the company that is brought in the company’s name. The primary requirement for a statutory derivative action is obtaining leave from the court, which was not compulsory under common law. Once leave is granted, aggrieved shareholders can initiate legal proceedings on behalf of the company. In this context, there is no need to specify the capacity in which the shareholder is bringing the claim, as the company is already empowered by statute and by the leave granted to pursue the action initiated by the complainant. See the decisions in Tan Eng Joo v Sandeep Singh Grewal & Anor [2022] 6 CLJ 308, Dato’ Seri Timor Shah Rafiq v Nautilus Tug & Towage Sdn Bhd and Another Appeal [2024] 3 MLRA 544.

43. Are fast-track proceedings available?

Other than summary judgment, Order 14A of the Rules of Court 2012 was introduced to expedite the disposal of an action at an interlocutory stage. This order allows the court to determine any question of law or construction of document if it can significantly impact the outcome of the entire case or any specific claim or issue within it. The key consideration is whether the court can dispose of the case, its major parts, or significant issues using Order 14A. Even if a case appears complicated or complex, the court will still consider the applicability of Order 14A. To invoke Order 14A, all material facts relating to the subject matter of the claim must be undisputed or admitted. See the decision in Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8.

See also Order 33 of the Rules of Court 2012 on the determination of preliminary issues in a civil action, the application of which is generally wider as it can provide a final and conclusive determination of an action as opposed to disposal of matters purely on question of law as in Order 14A of the Rules of Court 2012.

44. Is it possible to conduct proceedings in a foreign language?

In accordance with section 8 of the National Language Acts 1963/67, all proceedings in the Federal Court, Court of Appeal, the High Court or any subordinate court must be conducted in the national language, which is the Malay language, except for the giving of evidence by a witness. However, the sourt has the discretion to order, either on its own initiative or upon request from any party involved in the proceedings, that the proceedings may be conducted partly in the national language and partly in English, or all in English after considering the interests of justice in those proceedings.

Effects of judgment and enforcement

45. What legal effects does a judgment have?

The general principle is that a court’s jurisdiction is limited to parties properly brought before it, and it cannot make orders or decisions binding non-parties. However, there are exceptions: injunctions and cases where the non-party is closely connected to the party already involved in the proceedings, such as being the alter ego of that party. Injunctions not only bind the person they are directed at but also their agents or servants, and anyone who has notice of the injunction. The alter ego exception applies when a non-party is so intertwined with the party before the court that they essentially represent the same legal entity. For instance, where a defendant transferred property to a company solely owned and controlled by himself and a clerk of his solicitors. The court decreed specific performance against the company, treating it as a sham or a cloak for the defendant. See the decision in Re Thien Kon Thai [2008] 6 MLJ 278.

Furthermore, stare decisis a fundamental principle in law that requires courts to follow the decisions and rulings made in earlier cases when deciding similar cases in the future. When a court sets a precedent, it establishes a rule or principle that other courts must follow in similar situations. This principle ensures consistency and predictability in the legal system, as it helps to maintain stable laws and ensures that similar cases are treated similarly. Judges are obligated to adhere to precedents set by higher courts, and lower courts must follow the legal principles established by higher courts in earlier cases.

The ratio decidendi of a case refers to the legal principle upon which a decision is based. When a judge delivers a judgment, they first establish the facts proven by the evidence presented. They then apply the relevant law to those facts to reach a decision, which is accompanied by the reason or rationale (ratio decidendi) for that decision. Additionally, judges may offer comments or opinions on how their decision might have differed under different circumstances, known as obiter dictum. While the binding part of a judicial decision is the ratio decidendi, obiter dictum is not binding in subsequent cases as it is not strictly relevant to the issue at hand in the original case. However, obiter dictum may carry persuasive authority in later cases. See also the decision in Pendaftar Muallaf Wilayah Persekutuan v Lee Chang Yong & Ors and another appeal [2022] 1 MLJ 653.

46. What are the procedures and options for enforcing a domestic judgment?

In Malaysia, the modes of enforcing a domestic judgment include an application for judgment debtor summons, a writ of seizure and sale, a writ of possession, a garnishee order, a charging order, an initiation of winding-up proceedings, appointment of receivers by way of equitable execution or an order of committal for contempt of court.

Judgment debtor summons

A judgment creditor may apply for judgment debtor summons to seek information on the assets and financial means of the judgment debtor, who is then called to appear before the judge or magistrate. The court can order payment of the judgment sum either in one lump sum or through instalments, with failure to comply potentially leading to imprisonment for the judgment debtor.

Writ of seizure and sale

A writ of seizure and sale, applicable to movable properties, where the sheriff or bailiff seizes and sells the judgment debtor’s property to satisfy the judgment sum, with proceeds going to the judgment creditor. Alternatively, for immovable properties, a judgment creditor must first apply for a prohibitory order to prohibit the judgment debtor from transferring, charging or leasing property. Subsequently, the judgment creditor may proceed with execution by a writ of seizure and sale.

Writ of possession

A writ of possession is exclusively for enforcing a judgment for possession of immovable property. Before the issuance of the writ, one must obtain leave from the court, except in cases where the judgment was made in a charge action falling under order 83. After the writ has been issued, arrangement can be made with the sheriff or bailiff to schedule an execution attempt on the property.

Garnishee order

A garnishee order can attach monies owed from the judgment debtor’s bank account, with the court ordering the debtor’s bank to remit funds to the judgment creditor to satisfy the judgment. The process involves two stages. First, an ex-parte garnishee order can be obtained to freeze the bank account. Second, a garnishee order absolute is issued, directing the bank to release the garnished amount to the judgment creditor.

Charging order

A charging order may be made in respect of securities held by the judgment debtor. The judgment debtor must be served with an order to show cause. Additionally, an order to prevent the transfer or disposition of the securities will be granted. Unless there are sufficient reasons to the contrary, an order absolute will be issued. Subsequently, separate proceedings for the sale of securities will commence six months after the order absolute.

Winding up proceedings

The minimum amount required to initiate winding-up proceedings against a debtor company due to its inability to pay debts is 50,000 ringgit. Prior to filing a winding-up petition against a debtor company, the judgment creditor must issue a statutory notice of demand in accordance with section 466(1)(a) of the Companies Act 2016. If the debtor company fails to pay the judgment sum within 21 days of receiving the notice, the judgment creditor has the option to apply to the court to wind up the debtor company.

Equitable execution

Equitable execution is used to enforce the rights of the judgment creditor against the property of the judgment debtor where such property cannot be executed upon by the normal legal means. This process involves the appointment of a receiver to manage the income generated from the judgment debtor’s property and allocate it to the judgment creditor to satisfy judgment sum.

Committal proceedings

Committal proceedings can be initiated upon application of any party involved in the matter or at the court’s discretion. A judgment debtor who fails or refuses to obey a court order may be held liable for contempt of court. To obtain an order of committal, strict adherence to the procedure set out in order 52 is required. The applicant must also prove beyond a reasonable doubt that the alleged contempt of court was committed by the respondent.

47. Under what circumstances will a foreign judgment be enforced in your jurisdiction?

In Malaysia, the operative legal framework for the recognition and enforcement of a foreign judgment is provided for under the regime of the Reciprocal Enforcement of Judgments Act 1958 (REJA), and the common law action.

A foreign judgment obtained in countries listed in the First Schedule to the REJA could be enforced in Malaysia by way of an application to have the foreign judgment registered in the High Court in accordance with section 4 of the REJA. A duly registered foreign judgment shall have the same effect as if the judgment had been originally given in the court of Malaysia and entered on the date of registration.

Judgments rendered by courts of countries falling outside the purview of the REJA may be enforced through the common law action. In other words, the intended claimant needs to first obtain a local judgment in Malaysia by way of common law recognition via a fresh action through the foreign judgment as a cause of action.

The common law action to recognise a foreign judgment is commenced by taking out a writ action on the basis of the foreign judgment. Once the writ and statement of claim have been served on the defendant and the defendant has entered appearance to the action, the plaintiff may, on the ground that the defendant has no defence to the action, apply for a summary judgment to be entered against the defendant. Unless there is a triable issue, the court may give such judgment for the plaintiff by granting an order in terms of the foreign judgment. See Commercial Conflict of Laws in Malaysia; Author: Kwong Chiew Ee, Chai Phing Zhou, Daniel Chua Wei Chuen, Aravind Kumarr and Melvin Ng Yet Ting; Publisher: Sweet & Maxwell Malaysia 2; page 209.

Costs and Funding

48. Will the successful party’s costs be borne by the opponent?

An order for costs is subject to the court’s discretion. The costs regime is governed by Order 59 of the Rules of Court 2012. Under order 59, Rule 1, costs as between the parties in civil proceedings includes ‘fees, charges, disbursements, expenses and remuneration’. As a general rule, the court will order the costs to follow the event which means that the unsuccessful party to a civil action has to pay the costs to the successful party. The unsuccessful party is left to bear its own costs.

However, there are circumstances where the court may exercise its discretion to make some other orders. For instance, if the successful party’s litigation is deemed vexatious, their conduct is unreasonable, or it amounts to an abuse of the court process, the successful party may not be entitled to an order for costs. Furthermore, in cases where both parties in a civil action have violated the law, such as by having entered into an illegal contract, there is no order as to costs and each party has to bear its own costs.

The court also has the discretion to award only a portion of costs to the successful party or to limit the costs to a specific stage of the proceedings. For instance, if an appellant succeeds in an appeal on an issue not raised before the trial judge, the costs of the trial at the trial court may be awarded, but the costs of the appeal might not be. There are instances where a solicitor could be personally liable for costs. This requires a serious dereliction of duty or gross negligence to invoke the court’s jurisdiction to order the solicitor to pay costs personally.

The quantum of costs is at the court’s discretion. According to Order 59, Rule 7(2), there are generally two items that the court will consider in determining the quantum, namely the work done including the value of getting up, and all reasonable disbursements incurred. ‘Getting up’ refers to instructions for trial, and the court is guided by the factors outlined in Order 59, rule 16, including the complexity of the matter, skill required of, time spent, number of documents, place and circumstances, importance of the cause, value of the subject matter, etc. See Malaysian Court Practice – Trial Courts; Publisher: LexisNexis Malaysia; Order 59.

49. May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?

In Malaysia, one of the legal aid schemes is the Legal Aid Department, which is established under the Legal Aid Act 1971. An eligible person who possesses financial resources within the limits prescribed by the Act can apply for legal aid for civil matters outlined in the Third Schedule of the Act, encompassing both family issues and civil actions. Civil cases include various proceedings such as those under the Married Women and Children (Maintenance) Act 1950, Maintenance Ordinance 1959 (Sabah) and Sarawak Customary Marriages (Maintenance) Ordinance 2003, among others. Additionally, legal aid covers rights and responsibilities regarding divorce and custody proceedings, adoption matters, probate and estate administration, tenancy disputes and consumer claims.

Individuals who cannot afford legal representation in Malaysia have several options available to them. First, some lawyers offer pro bono services, providing their expertise free of charge. Bar associations and legal aid organisations facilitate this by matching clients with volunteer lawyers. Second, parties can consider mediation or alternative dispute resolution (ADR) as a more cost-effective and less time-consuming alternative to litigation. Legal clinics and advice centres also offer free or low-cost legal assistance, often provided by law schools, non-profit organisations or government agencies. Finally, individuals may opt for self-representation in court proceedings, although this requires a solid understanding of legal procedures and may not be suitable for complex cases. See Contingency Fees And Third-Party Litigation Funding: Should Malaysia’s Legal Profession Embrace It? [2023] 4 MLJ xxv.

50. Are contingency fee arrangements permissible? Are they commonly used?

A contingency arrangement is when an advocate and solicitor agree that their fees would depend on either winning the case or obtaining a certain sum for the client. The advocate and solicitor would then be paid either a fixed sum or a percentage of the sum awarded. Such an arrangement is generally prohibited under section 112 of the Legal Profession Act 1976 (LPA 1976). A breach of any of the provisions in the LPA 1976 may render an advocate and solicitor liable to disciplinary proceedings. Contingency fee arrangements are not commonly used in Malaysia because they contravene the public policy and ethics of the legal profession. Such contracts are deemed illegal and will also be rendered void under section 24 of the Contracts Act 1950. See Contingency Fees And Third-Party Litigation Funding: Should Malaysia’s Legal Profession Embrace It? [2023] 4 MLJ xxv.

Nevertheless, the decision of the Court of Appeal in Lua & Mansor (suing as a firm) v Tan Ah Kim [2017] 3 MLJ 371 is instructive. A success fee agreement between an advocate and solicitor and its client consisting of the basic fees and success fees to a certain extent was permitted. The Court of Appeal made a distinction between a success fee arrangement and a contingency fee arrangement in this regard.

51. Is third-party funding allowed in your jurisdiction?

Generally, third-party funding arrangements are not recognised in Malaysia. In the case of Bandari Simma Realty & Anor v Ravichanthiran A/L Ganesan [2021] 9 MLJ 330, it was held that a third-party funder had no obligation to the solicitors for any outstanding legal fees owed by the client, as third-party funding arrangements were not recognised in our jurisdiction.

There are some exceptions. This includes scenarios such as subrogation, where insurers can assume the role of the insured, financing and managing litigation on their behalf. Additionally, trade unions have the authority to represent their members. Furthermore, there are general legal aid schemes accessible to the public, providing assistance to various types of litigants. See Contingency Fees And Third-Party Litigation Funding: Should Malaysia’s Legal Profession Embrace It? [2023] 4 MLJ xxv.

52. Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?

There are two aspects to consider. In respect of fees for contentious matters, there are no fixed fee scales to be followed. According to Order 59 Rule 17 of the Rules of Court 2012, all costs will generally be allowed unless they are unreasonable amounts or unreasonably incurred. Costs incurred with the express or implied consent of the client will be conclusively presumed to be reasonably incurred. Pursuant to Rule 11 of the Legal Profession (Practice and Etiquette) Rules 1978, in determining fees for contentious legal matters, various factors are considered: the time, expertise, and effort required; the complexity of the case; potential conflicts with representing other clients; prevailing industry charges; the amount in controversy and benefits to the client; and the lawyer’s seniority and specialisation.

For transactions involving non-contentious matters such as the sale and purchase of property, financing, and tenancies, the rate of the scale fees is provided by Solicitors’ Remuneration Order 2023 (SRO 2023). Pursuant to order 6 of the SRO 2023, a solicitor is allowed to give a discount rate of up to 25 per cent on the fee imposed on either sale and transfer transactions or charges, debentures and other security or financing documents.