HOW TO SERVE LEGAL PAPERS IN MALAYSIA

Malaysia Process Service is a little more difficult to enact than most other nations. Malaysia is not a signatory to the Hague Service Convention, and thus, means of providing international service are a lot more limited. Even though official service may take a month or more, informal service is usually significantly quicker. Process servers who are off-duty police officers or other government officials may be permitted to use their official authority to fulfill the service in certain situations.

BACKGROUND

Malaysia is a southeast Asian nation. Thirteen states and three federal territories make up the federal constitutional monarchy, which is divided between peninsular Malaysia and Borneo’s East Malaysia by the South Shina sea. Southeast Asia’s peninsular countries of Singapore, Vietnam, and Indonesia all have marine boundaries with peninsular Malaysia. Malaysia’s capital, biggest metropolis, and legislative seat are all located in Kuala Lumpur. Malaysia’s administrative capital of Putrajaya houses both the executive and judicial branches of the federal government, as well as all of the federal agencies

The Westminster parliamentary system, a holdover from British control, serves as the basis for the current government structure. The king, formally known as the yang di-pertuan agong, is the country’s head of state. The Malay states’ nine hereditary rulers pick the country’s king for a five-year tenure. There are no governors in the other four states, therefore the selection process is not open to them. 

The legislative authority of the federal and state legislatures is split up among them. The lower house, the house of representatives, and the upper house, the senate, make up the bipartisan federal legislature. House members are elected for a maximum of five years from single-member seats. Senate seats are filled by twenty-six elected members of state legislatures and forty-four appointed members of King Abdullah II’s cabinet. with a multi-party system, the government is chosen by a simple majority vote. The house of representatives and, in many states, the state legislative chamber were both electable by registered voters who were at least twenty-one years old prior to 2018. 

HOW TO SERVE DOMESTIC PAPERS IN MALAYSIA

Arbitration, mediation, and court procedures are all options for resolving commercial issues in Malaysia. In Malaysia, legal processes are the most popular technique of resolving conflicts. If all parties to the issue agree, arbitration and mediation processes may be commenced.

When it comes to large business conflicts, the High Court of Malaya frequently becomes involved since it has civil jurisdiction over matters involving MYR1 million or more.

The judicial system in Malaysia is mostly adversarial. For the most part, judges serve as arbitrators between two sides in courtroom battles. There has been a shift in the judiciary’s function as a case manager since 2012, when the Rules of Court were enacted, giving the court new procedural powers including dismissal of cases or the ability to impose fines for non-compliance with court orders. Alternative dispute resolution may only be ordered by a court if both parties consent to it or have agreed to it beforehand.

For a claimant to succeed in proving their claims, the standard of evidence is to balance probability. In most cases, online conflict resolution is not an option in the courts.

A suitable court for a lawsuit mostly relies on how much money is at stake and what the claim is about. Commercial issues may be litigated in the Magistrates, Sessions, or High Courts. There is also a Magistrates’ Court. Up to MYR100,000 may be claimed in this court. This court has the same restrictions on its jurisdiction as the Sessions Court. At the highest court level. If the claim is worth MYR1 million or more, this court has jurisdiction to hear it, and it does not matter what it is about. The Labour Court or the Industrial Relations Court is the most common venue for hearing employment-related issues. The High Court’s specialized courts handle intellectual property, competition, and marine matters, all of which fall within the jurisdiction of the respective subdivision of the High Court.

A claim is usually initiated by filing a writ of summons in court with either [A.] statement of claim; [B.] concise statement of the nature of the claim made, or the relief or remedy sought in the action. The filing is usually done online and the writ is usually sealed by the court within one to two days. The claimant must serve the summons and writ together with the statement of a claim whenever the sealed writ is issued as per the Malaysian Process Service. To meet Malaysian Process Service requirements, the claimant might simply serve the summons accompanied by a brief explanation of the cause of action and the reliefs sought. By way of personal service or acknowledged receipt (AR) from registered mail directed to the defendant’s last known address, this might be accomplished.

Efforts to serve the writ must begin within one month of the writ’s date of issuance. Notification of the defendant may be made at any time. Once the defendant gets the writ, they have fourteen days to file a memorandum of appearance in response to a claim.

In order to contest the court’s jurisdiction to hear the claim, the defendant must file an application supported by an affidavit in accordance with the time limit for serving a defense (for example, claiming that Malaysia is not the proper forum for the dispute or that there were irregularities in the service of writ). Failing to appear in court might result in a default judgment against the defendant.

 The defendant has fourteen days from the date of filing to serve the claimant with a memorandum of presence. The claimant must submit a statement of claim within fourteen days of the day the defendant entered appearance if they have not done so before.

REPLY TO SERVICE

The claimant can serve a reply to the defense if they intend to deny or respond to the allegations made in the defense. Failure to specifically deny an allegation of fact will be deemed an admission. Pleadings are deemed to be closed at the expiry of fourteen days from the date of filing and service of the claimant’s reply. Pre-trial case management will then begin and the court can issue directions and orders to secure the just, expeditious and economical disposal of the action or proceeding and to the forest a date for a trial. All documents must be filed via the electronic filing system of the Malaysian courts for all court proceedings.

Choice of jurisdiction provisions is frequently honored by Malaysian courts. If there are no exceptional circumstances, ignoring a choice of jurisdiction provision would mean that the courts are tolerating a violation of the contract. As a result, Malaysian courts have the option of deciding whether a case should be brought in Malaysia or another country. According to the Supreme Court (predecessor of the Federal Court), judges may use their discretion to consider the concept of forums non-conveniens (that is, whether the Malaysian courts are the most appropriate tribunal to try the case). If the matter is to be heard in Malaysia rather than in another country, factors such as convenience and cost are taken into account.

HOW TO SERVE FOREIGN PAPERS IN MALAYSIA

To get evidence from a local witness, a foreign party may request the aid of the Malaysian courts. It is required that the application be lodged ex parte by a person who has been authorized to do so by the foreign court in the issue. An affidavit is required to back up such a request. When a foreign court requests evidence from a witness in a civil case before that court, the document must be presented as an exhibit.

The examination of a witness may be conducted before any person who is deemed to be suitable and appropriate by the person making the application or by the registrar of a Malaysian court. Witnesses are subject to the same procedures as in a courtroom throughout their depositions, cross-examination, and final cross-examination unless otherwise instructed otherwise. When the witness’s deposition is sent to the registrar, he or she will then issue a certificate that may be used outside of the jurisdiction, which will be sealed by the High Court. To transmit the certificate to the foreign court or tribunal, the registrar will first send it to the person designated by the court.

On this topic, Malaysia is not a member of an international treaty or convention.

how to ENFORCE A FOREIGN JUDGMENT in Malaysia

For a foreign judgment to be enforced, it has to be registered with the Malaysian courts. 

Foreign judgments may only be registered if they are from a reciprocating nation, as stated in REJA’s list of reciprocating countries. The only way to enforce a foreign decision that has not been registered with REJA is to start new legal procedures. In order to get a domestic judgment, the claimant must produce prima facie proof of a claim against the respondent in procedures initiated in a Malaysian court.

An application for the registration of a foreign judgment may be filed if the judgment is from a nation that recognizes reciprocity. An original summons with an affidavit must be filed by the foreign judgment creditor. It is common practice to request an ex parte hearing date. A certified or authenticated copy of the foreign decision must be included in the affidavit of support as per the Malaysia Process Service. Translations must be confirmed by a notary public if the Malaysia Process Service decision is not in English. 

If the application seems to meet the requirements of REJA, the court will give permission to register it during the hearing. There must be a time limit in the order of leave that specifies when an application to set aside the registration may be submitted, and that execution of the judgment will not be given until that time limit has expired. 

Within three days of Malaysia Process Service, the person delivering the notification of registration must sign the notice (which is the date on which the notice was served).

The court will establish a hearing date for an application to set aside the registration of the judgment if the judgment debtor files such an application. Execution of a judgment cannot be issued until a final decision has been made on an application for review.

It is possible to enforce a foreign judgment in the same manner as a domestic one after it has been registered or secured. Some of the methods for enforcing a judgment include filing for winding-up and bankruptcy, garnisheeing the assets of the defendant, and issuing an order for the seizure and sale.

HOW TO SERVE LEGAL PAPERS IN MALAYSIA

The Hague Service Convention does not apply to Malaysia. There is no ban in Malaysia on the serving of process by mail, an agent such as a local attorney, or letters rogatory if there is no prohibition. If a U.S. ruling is to be enforced in the future, Malaysian litigants may desire to counsel a Malaysian attorney before pursuing a specific manner of service of process.

Malaysia is not a signatory to the Hague Convention on the Recognition and Enforcement of Foreign Legal Documents. In Malaysia, the Malaysia Process Service may be accomplished in a variety of ways, including by the mail, an agent (such as a local attorney), or even using rogatory letters. If a U.S. ruling is to be enforced in the future, Malaysian litigants may desire to counsel a Malaysian attorney before pursuing a specific manner of service of process.

Criminal defendants or their defense counsel seeking judicial assistance in obtaining evidence or in effecting service of documents abroad in connection with criminal matters may do so via the letters rogatory process.

U.S. consulate personnel in Malaysia may conduct voluntary depositions in civil and commercial cases from willing witnesses, according to Malaysian authorities. The Hague Evidence Convention does not apply to Malaysia. No coercion is required for voluntary depositions in Malaysia regardless of the witness’s nationality. U.S. consular officials or private lawyers from the United States or Malaysia may take oral or written depositions or depositions on written questions at the U.S. Embassy or another site, such as a hotel or office, on notice or pursuant to a commission. U.S. diplomats may administer an oath on behalf of the witness, translator, and stenographer if preparations have been established in advance with the U.S. embassy in the country where the witness is being held.

The Hague Convention on the Abolition of the Legalization of Foreign Public Documents does not include Malaysia. By contacting the U.S. Department of State Authentication Office and then having the seal of the Department of State validated by the Malaysian Embassy in Washington, D.C., a document issued in the United States may be authenticated for use in Malaysia. The Secretary of State of the state in which the document was issued must first validate it.

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Sources

1. As a result of an informal agreement, Abdullah of Pahang has held this role since 31 January 2019. as a result of constitutional reforms made in 1994, the king’s role has mostly been ceremonial since then.

2. The laws on limitation are generally treated as a procedural law issue.

Limitation periods are governed by the Limitation Act 1953 (LA) which sets limitation periods for:

  • Actions in contract or tort: six years from the date of the contractual breach or tortious act.
  • Actions to recover land: 12 years from the date the right of action accrues.
  • Actions to enforce judgment: 12 years from the date the right to enforce judgment accrues.
  • Actions in respect of fraud or fraudulent breach of trust, or to recover trust property or the proceeds thereof from the trustee: no limitation period.

The Limitation (Amendment) Act 2018, which came into force on 1 September 2019, extended the limitation periods for:

  • Actions in negligence not involving personal injury where the damage was not discoverable (that is, latent) before the expiry of the original statutory limitation period of six years: extended by three years from the date of knowledge.
  • Any action where a person has a disability at the time the cause of action accrued: three years from the date the person ceased to have a disability or died (although the action cannot be brought later than 15 years from the date the cause of action accrued).

3. Court of Session. Except for motor vehicle accidents, landlord-tenant conflicts, and distress cases (unpaid rent), the court has unlimited monetary jurisdiction over all claims in this courtroom. Disputes regarding real property titles, admiralty claims, bankruptcy claims, and trust enforcement claims cannot be heard by the Sessions Court.

4. Electronic service of the writ is now possible with the most recent ROC revisions (Order 10 rule 1, ROC).

5. It is important to note that if a defendant wishes to fight the case, they must do so by serving a defense on the claimant no later than 14 days after the deadline for entering an appearance or when the claim is served on them, whichever comes first.

6. World Triathlon Corp v SRS Sports Centre Sdn. Bhd [2019] 4 MLJ 394

7.  Order 11 of the ROC governs the service of foreign proceedings in Malaysia. The defendant’s registered postal address must be served in person or by AR. In the following cases, this is exempt:

  • The writ may only be issued in cases when the defendant’s legal representatives accept the writ on their behalf (that is, that he or she has filed a memorandum of appearance in court, to acknowledge the claim that has been initiated against him or her and to indicate that he or she will be defending the claim).
  • A copy of the document is left with the individual to be served in order to serve the document personally (Order 62 rule 3, ROC). However, the defendant must be made aware of the document’s service and its contents, otherwise, it may be deemed ineffective (Banque Russe v Clark [1894] WN 203).

This may be done by either: 

  • Depositing a copy in a safe deposit box at the corporation’s registered office or by mail; or 
  • Delivering a copy directly to the corporation’s secretary, director, or any other official.

8. American Express Bank Ltd v Mohamod Toufic Al- Ozeir & Ors [1995] 1 MLJ 160.

9. Section 4 of the Reciprocal Enforcement of Judgments Act 1957 outlines the registration requirements (REJA).

10. In most cases, the court will give you between 14 and 21 days to file the application. The judgment debtor must be provided with a notice of registration of the order for registration of the foreign judgment.

11. U.S. Embassy Kuala Lumpur

376 Jalan Tun Razak

50400, Kuala Lumpur

Malaysia

Telephone: +(60) (3) 2168-5000

Emergency After-Hours Telephone: +(60) (3) 2168-5000 (press 1 at the recording)

Fax: +(60) (3) 2148-5801

Email: klacs@state.gov

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