EXPORT-IMPORT BANK OF MALAYSIA BERHAD

On the court record

Illustrates how the courts construe termination clauses and conditions in facility agreements, apply the winding-up and charge-enforcement regimes, and give effect to an arbitration agreement through a stay of proceedings.

The Export-Import Bank of Malaysia Berhad (EXIM Bank) appears in this corpus as a policy financier supporting export and cross-border trade, litigating in roles including plaintiff, defendant, respondent, applicant and aggrieved party. The decisions concentrate on the financing relationship and its enforcement. Contractual disputes recur over the termination of a facility agreement: a borrower's claim for a declaration that the bank wrongfully terminated the facility and for specific performance, engaging the construction of the termination clause and any conditions precedent, and the interpretation of a provision for 'mutual termination by notice' and whether it was validly invoked. Enforcement and insolvency feature through winding-up proceedings, including an application for a Fortuna injunction to restrain the presentation of a petition following a statutory notice under section 465(1)(e) of the Companies Act 2016, and an application to auction the properties charged to the bank on the borrower's default. The corpus also engages arbitration, including a stay of court proceedings under section 10 of the Arbitration Act 2005 in favour of an agreed arbitral forum, and ordinary civil-procedure disputes such as the re-amendment of a statement of claim. Because EXIM Bank appears both as the party enforcing its financing and as a party answering claims about the termination of a facility, the decisions reflect the several capacities of a policy lender in contested financing. The matters are decided in the High Court and the Court of Appeal. Collectively the decisions in which EXIM Bank is a party illustrate how the courts construe termination clauses and conditions in facility agreements, apply the winding-up and charge-enforcement regimes, and give effect to an arbitration agreement through a stay of proceedings. Several of the reported matters also concern the interaction between the bank's contractual remedies, its security and any agreed arbitration clause, and the order in which those avenues may be pursued when a facility is terminated and a borrower disputes the termination. Across these matters the bank appears in the several capacities a policy lender occupies in contested financing, from the construction of the facility agreement to the realisation of charged property.