CONFLICT OF LAWS

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Alien enemy

Conflict of Laws - Alien enemy - Instituted action before commencement of war - Action stayed during continuance of hostilities

Hendrik Christiaan van Hoogstraten v Low Lum Seng [1940] MLJ 138, High Court, Federated Malay States

This case concerned a claim by a Dutch national against a Chinese national for the recovery of a debt. The claim was instituted in the High Court of the Federated Malay States before the outbreak of war between the Netherlands and Japan. After the outbreak of war, the Dutch national was declared an alien enemy and the Chinese national was granted leave to defend the claim on the ground that the Dutch national was an alien enemy.

The High Court held that the action should be stayed during the continuance of hostilities. The court held that the principle of comity required that the courts of a neutral country should not exercise their jurisdiction in a case where one of the parties was an alien enemy. The court also held that the principle of public policy required that the courts of a neutral country should not exercise their jurisdiction in a case where the outcome of the case could have a bearing on the war effort of a belligerent country.



Bills of exchange

Otamchand Kanji v Yassin [1940] MLJ 42, High Court, Federated Malay States

This case concerned a bill of exchange drawn on a bank in India. The bill was payable to a bearer and was indorsed by the payee to the defendant. The defendant refused to pay the bill on the ground that it was an enemy bill.

The High Court held that the bill was not an enemy bill. The court held that the bill was not drawn on an enemy bank and that the payee was not an enemy national. The court also held that the indorse was not an enemy indorsee.



Contract

Conflict of Laws - Contract - Agreement providing disputes to be tried in a foreign country - Jurisdiction of local courts not ousted

Elf Petroleum SE Asia Pte Ltd v Winelf Petroleum Sdn Bhd [1986] 1 MLJ 177, High Court, Kuala Lumpur

This case concerned a contract between a Malaysian company and a Singaporean company. The contract contained an arbitration clause providing that disputes arising out of the contract were to be referred to arbitration in Singapore.

The Malaysian company sued the Singaporean company in the High Court of Malaya. The Singaporean company applied to have the action stayed on the ground that the arbitration clause was binding on the parties.

The High Court held that the arbitration clause was binding on the parties. The court held that the parties had freely entered into the contract and that they were therefore bound by its terms. The court also held that the arbitration clause was in the interests of justice, as it would allow the disputes to be resolved quickly and efficiently.

The action was therefore stayed and the parties were required to refer their disputes to arbitration in Singapore.