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Private International Law Matters

Private International Law Matters
i. Hague Conference on Private International Law (HCPIL)
  • Malaysia is a Member State to HCPIL. The Attorney General’s Chambers is the national organ for purposes of dealing with any matters pertaining to Malaysia’s membership in HCPIL. The objective of HCPIL is to harmonize the private international laws in a progressive way. In this regard, there are several HCPIL Conventions which have been finalised and countries may consider becoming a party to these Conventions if they are suitable and do not contravene of the domestic laws of the countries.
  • Presently, Malaysia is not a party to any of the HCPIL Conventions. This Unit is in the process of studying the Conventions with a view of ascertaining whether Malaysia can become a party to any of the HCPIL Conventions consistent with the existing laws of Malaysia.
  • The HCPIL Conventions which have been/are being studied by this Unit are as follows:
a. Civil Law
  1. Convention Abolishing the Requirement of Legalisation for Foreign Public Documents
  2. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
  3. Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
b. Family Law
  1. Convention on the Recognition of Divorces and Legal Separations
  2. Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations
  3. Convention on the Law Applicable to Maintenance Obligations
  4. Convention on Celebration and Recognition of the Validity of Marriages
  • In undertaking the study of these Conventions, the domestic legislation which have to be scrutinised by this Unit include:
  1. Rules of High Court 1980
  2. Courts of Judicature Act 1964
  3. Subordinate Courts Act 1948
  4. Federal Constitution
  5. Civil Law Act 1956
  6. Evidence Act 1950
  7. Syariah Court Evidence Bill
  8. Notaries Public Act 1959
  9. Probate & Administration Act 1959
  10. Law Reform (Marriage and Divorce) Act 1976
  11. Islamic Family Law Bill
  12. Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985
  13. Powers of Attorney Act 1949
  14. Reciprocal Enforcement of Judgements Act 1958
  15. Diplomatic and Consular Officers (Oaths and Fees) Act 1959
  16. Syariah Court Civil Procedure Bill
  17. Married Women and Children (Maintenance) Act 1950
  18. Maintenance Ordinance 1959 of Sabah
  19. Age of Majority Act 1971
  20. Maintenance Orders (Facilities for Enforcement) Act 1949
  21. Married Women and Children (Enforcement of Maintenance) Act 1968
  22. Guardianship of Infants Acts 1961
  23. Sarawak Guardianship of Infants Ordinance
  24. Child Act 2001
  • A study is currently being undertaken by Unit 6 for the purpose of participating in the meetings of the Special Commission established by HCPIL. Studies have been completed for the following:
  • The Judgments Project ;and
  • The electronic means in respect of Legalisation, Service and Taking of Evidence
  • However, the issue of whether Malaysia may sign or ratify the conventions under the Judgments Project is still being studied by this Unit. This is in addition to the study being carried out concerning Malaysia’s participation in the Special Commission meetings for International Child Support and Family Maintenance.
  • Currently, this Unit is also studying the following HCPIL Conventions:
 
  1. Statute of the Hague Conference on Private International Law;
  2. Convention of 1 March 1954 relating to civil procedure;
  3. Convention of 15 June 1955 on the law applicable to international sales of goods;
  4. Convention of 15 April 1958 on the law governing transfer of title in international sales of goods;
  5. Convention of 15 April 1958 on the jurisdiction of the selected forum in the case of international sales of goods;
  6. Convention of 15 June 1955 relating to the settlement of the conflicts between the law of nationality and the law of domicile;
  7. Convention of 1 June 1956 concerning the recognition of the legal personality of foreign companies, associations and institutions;
  8. Convention of 24 October 1956 on the law applicable to maintenance obligations towards children;
  9. Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children;
  10. Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors;
  11. Convention of 5 October 1961 on the Conflicts of Laws relating to the Form of Testamentary Dispositions;
  12. Convention of 15 November 1965 on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions;
  13. Convention of 25 November 1965 on the Choice of Court;
  14. Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters;
  15. Supplementary Protocol of 1 February 1971 to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters;
  16. Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations;
  17. Convention of 4 May 1971 on the Law Applicable to Traffic Accidents;
  18. Convention of 2 October 1973 concerning the International Administration of the Estates of Deceased Persons;
  19. Convention of 2 October 1973 on the Law Applicable to Products Liability;
  20. Convention of 2 October 1973 on the Recognition and Enforcement of Decisions relating to Maintenance Obligations;
  21. Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations;
  22. Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes;
  23. Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages;
  24. Convention of 14 March 1978 on the Law Applicable to Agency;
  25. Convention of 25 October 1980 on the Civil Aspects of International Child Abduction;
  26. Convention of 25 October 1980 on International Access to Justice;
  27. Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition;
  28. Convention of 22 December 1986 on the Law Applicable to Contracts for the International Sale of Goods;
  29. Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons;
  30. Convention of 29 May 1993 on Protection of Children and Co-operation in respect of Intercountry Adoption;
  31. Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children;
  32. Convention of 13 January 2000 on the International Protection of Adults;
  33. Convention on the Law Applicable to Certain Rights in respect of Securities held with an Intermediary .
  • As a Member State of HCPIL, Malaysia is required to contribute to the annual regular budget of HCPIL. From time to time, HCPIL will request Member States to contribute to an additional budget. In the event that Malaysia is requested to contribute to the additional budget, Unit 6 will prepare a Cabinet Paper to seek the approval of Cabinet to contribute to such additional budget.
ii. International Agreements and other matters :-
  • This Unit scrutinises and vets international agreements and bilateral and multilateral Memoranda of Understanding (MoU). Amongst them are agreements/MoUs/Protocols relating to international cooperation in the economic, scientific, technical and cultural fields.
  • From time to time, the officers of Unit 6 are required to attend other international meetings, such as the Asian-African Legal Consultative Organization Meetings and Senior Officials of Commonwealth Law Ministries Meetings. Again, this Unit would assist in the preparation of intervention notes and legal comments on the papers for such meetings.
  • The officers of Unit 6 are also required, from time to time, to attend meetings at the United Nations, including the General Assembly in New York. This Unit would assist in the preparation of intervention notes and legal comments on the meeting papers.
  • In 2006, officers from this Unit have been involved in the preparation for an arbitration case under the International Centre for Settlement of Investment Disputes (ICSID), namely the case of the Malaysian Historical Salvors Sdn. Bhd. v. the Government of Malaysia (ICSID case no. ARB/05/10).