JURISDICTIONAL IMMUNITIES OF FOREIGN STATES ACT 2024

Jurisdictional Immunities of Foreign States LAWS OF MALAYSIA Act 853 JURISDICTIONAL IMMUNITIES OF FOREIGN STATES ACT 2024 1 2 Laws of Malaysia Act 853 Date of Royal Assent ... ... 14 May 2024 Date of publication in the Gazette ... ... 24 May 2024 Publisher’s Copyright C PERCETAKAN NASIONAL MALAYSIA BERHAD All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording and/or otherwise without the prior permission of Percetakan Nasional Malaysia Berhad (Appointed Printer to the Government of Malaysia). Jurisdictional Immunities of Foreign States 3 LAWS OF MALAYSIA Act 853 JURISDICTIONAL IMMUNITIES OF FOREIGN STATES ACT 2024 ARRANGEMENT OF SECTIONS Part I PRELIMINARY Section 1. Short title and commencement 3. Prevailing law 2. 4. Non-application of the Act Interpretation Part II JURISDICTIONAL IMMUNITIES OF FOREIGN STATES Chapter I General immunity from jurisdiction 5. 6. Foreign State immunity Proceedings against foreign State, head of State and head of Government Chapter II Waiver of immunity 7. Waiver of immunity Chapter III Restriction of immunity from jurisdiction 8. Restriction of immunity in proceedings arising out of commercial transaction 4 Laws of Malaysia Section Act 853 9. Restriction of immunity in proceedings relating to contract of employment 10. Restriction of immunity in proceedings relating to personal injuries, etc., claims 11. Restriction of immunity in proceedings relating to determination of right, etc., of property 12. Restriction of immunity in proceedings relating to intellectual property, etc. 13. Restriction of immunity in proceedings relating to participation in companies, etc. 14. Restriction of immunity in proceedings relating to ships owned or operated by foreign State 15. Restriction of immunity in proceedings relating to recovery of tax 16. Restriction of immunity if there is an agreement on arbitration Part III IMMUNITY FROM ACTION OR JUDGMENT AGAINST PROPERTY OF FOREIGN STATE 17. Pre-trial action against property of foreign State 18. Enforcement of judgment and order against property of foreign State 19. Effect of consent to jurisdiction for pre-trial action or enforcement of judgment and order against property of foreign State Part IV FOREIGN STATE IMMUNITY COUNCIL 20. Establishment of Foreign State Immunity Council 21. Functions of Council 22. Powers of Council 23. Membership of Council 24. Meetings 25. Procedure at meetings 26. Temporary exercise of functions of Chairman 27. Council may invite others to meetings 28. Procedure 29. Secretary to Council Jurisdictional Immunities of Foreign States 5 Part V RECIPROCAL TREATMENT Section 30. Withdrawal of immunities of foreign State where there is no reciprocal treatment Part VI GENERAL 31. 32. 33. Proceedings of court Power to exempt Power to make regulations 6 Laws of Malaysia Act 853 7 Jurisdictional Immunities of Foreign States LAWS OF MALAYSIA Act 853 JURISDICTIONAL IMMUNITIES OF FOREIGN STATES ACT 2024 An Act to provide for the immunity of a foreign State and its property, the head of State and the head of Government of a foreign State from the jurisdiction of the court of Malaysia; the circumstances for the waiver of immunity; the restrictions of immunity; the establishment of the Foreign State Immunity Council; the withdrawal of immunity where there is no reciprocal treatment and to provide for other matters connected therewith. [ ] ENACTED by the Parliament of Malaysia as follows: Part I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Jurisdictional Immunities of Foreign States Act 2024. (2) This Act comes into operation on a date to be appointed by the Prime Minister by notification in the Gazette. 8 Laws of Malaysia Act 853 Non-application of the Act 2. This Act shall not apply to— (a) proceedings governed by the Visiting Forces Act 1960 [Act 432]; and (b) criminal proceedings. Prevailing law 3. The provision of this Act shall be in addition to, and not in derogation of, the provisions of any other written law relating to the diplomatic missions, consular posts, special missions, missions to international organizations, agent, or delegations of organs of international organization or to international conferences. Interpretation 4. In this Act, unless the context otherwise requires— “head of Government” means a person who presides over the cabinet or any body of similar nature of a foreign State; “head of State” means a person who holds the highest official position in a foreign State; “court” means a court of competent jurisdiction in Malaysia; “Council” means the Foreign State Immunity Council established under section 20; “foreign State” means any country or territory outside Malaysia, and includes— (a) a department or various organs of government of a foreign State; (b) a constituent unit of a federal foreign State or political subdivisions of the foreign State; and Jurisdictional Immunities of Foreign States 9 (c) the agency, body or other entity of a foreign State established under a written law of or otherwise by the foreign State; “commercial transaction” means— (a) any commercial contract or transaction for the sale of goods or supply of services; (b) any contract for a loan or other transaction of a financial nature, including any obligation of guarantee or of indemnity in respect of any such loan or transaction; and (c) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment. Part II JURISDICTIONAL IMMUNITIES OF FOREIGN STATES Chapter I General immunity from jurisdiction Foreign State immunity 5. Subject to Chapters II and III of this Part and Part III,— (a) a foreign State in respect of itself on its official capacity and its property; (b) the head of State on his official capacity; and (c) the head of Government on his official capacity, shall enjoy immunity from the jurisdiction of the court and no proceedings shall be instituted against them by any party. 10 Laws of Malaysia Act 853 Proceedings against foreign State, head of State and head of Government 6. (1) A proceedings before any court shall be deemed to have been instituted against a foreign State and its property, if that foreign State and its property— (a) is named as a party to that proceedings; or (b) is not named as a party to the proceedings but the proceedings in effect seeks to affect the property, rights, interests or activities of the foreign State. (2) A proceedings before any court shall be deemed to have been instituted against the head of State or the head of Government if the head of State or the head of Government is named as a party to that proceedings. Chapter II Waiver of immunity Waiver of immunity 7. (1) A foreign State, the head of State and the head of Government shall be deemed to have waived their immunity from the jurisdiction of the court if any of them— (a) has expressly consented to the exercise of the jurisdiction of the court; (b) has submitted to the jurisdiction of the court; (c) has instituted, intervened or taken any step in the proceedings of the court; or (d) has filed any counterclaim arising out of the same legal relationship or facts as the principal claim in any court. Jurisdictional Immunities of Foreign States 11 (2) Notwithstanding subsection (1), a foreign State, the head of State and the head of Government shall not be deemed to have waived their immunity from the jurisdiction of the court if— (a) t h e f o r e i g n S t a t e , t h e h e a d o f S t a t e a n d the head of Government, enters an appearance, intervenes or takes any other step in a proceedings before a court only for the purposes of— (i) invoking immunity; or (ii) asserting a right or interest in property at issue in the proceedings; and (b) the foreign State or its representative, the head of State or the head of Government appears as a witness in any court. (3) For the purposes of paragraph 1(a), any provision in the agreement entered by a foreign State, the head of State or the head of Government which provides that the agreement shall be governed by and construed in accordance with the law of Malaysia shall not be interpreted as consent to the exercise of jurisdiction of the court. Chapter III Restriction of immunity from jurisdiction Restriction of immunity in proceedings arising out of commercial transaction 8. (1) A foreign State shall not be immune from the jurisdiction of the court in any proceedings arising out of a commercial transaction carried out by the foreign State with any person in Malaysia. (2) Notwithstanding subsection (1), the immunity enjoyed by the foreign State shall not be affected if— (a) the parties to the commercial transaction have expressly agreed that the foreign State shall not be subjected to the jurisdiction of the court; and (b) the commercial transaction is between foreign States. 12 Laws of Malaysia Act 853 (3) Where a foreign State enterprise or other entity established by a foreign State which has an independent legal personality and is capable of— (a) suing or being sued; and (b) acquiring, owning or possessing and disposing of property, including property which that foreign State has authorized it to operate or manage, is involved in a proceedings relating to a commercial transaction in which that entity is engaged, the immunity enjoyed by that foreign State shall not be affected. (4) The head of State and the head of Government shall not be immune from the jurisdiction of the court in any proceedings arising out of a commercial transaction carried out by him with any person in Malaysia in his personal capacity. Restriction of immunity in proceedings relating to contract of employment 9. (1) A foreign State shall not be immune from the jurisdiction of the court in any proceedings relating to contract of employment between the foreign State and an individual for any work performed or to be performed, in whole or in part, in Malaysia. (2) Notwithstanding subsection (1), the immunity enjoyed by the foreign State shall not be affected if— (a) the employee has been recruited to perform particular functions in the exercise of governmental authority of the foreign State; (b) the employee is— (i) a diplomatic agent or consular officer as it is defined in the Diplomatic Privileges (Vienna Convention) Act 1966 [Act 636] and the Consular Relations (Vienna Convention) Act 1999 [Act 595] respectively; Jurisdictional Immunities of Foreign States 13 (ii) a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a foreign State at an international conference; or (iii) any other person enjoying diplomatic immunity; (c) the subject matter of the proceedings is the recruitment, renewal of employment or reinstatement of employment of an individual; (d) the subject matter of the proceedings is the dismissal or termination of employment of an individual and, as determined by the head of State, the head of Government or the Minister of Foreign Affairs of the employer foreign State, such a proceedings would interfere with the security interests of that foreign State; (e) at the time when the proceedings is instituted, the employee is a national of the employer foreign State unless the employee is a permanent resident of Malaysia; or (f) the employer foreign State and the employee have agreed in writing that the immunity enjoyed by the foreign State shall not be affected, subject to any public policy conferring jurisdiction of the court by reason of the subject matter of the proceedings. (3) The head of State and the head of Government shall not be immune from the jurisdiction of the court in any proceedings relating to contract of employme