I.   INTRODUCTION
​In common law, specific performance is a ‘decree by the court that requires the party against whom it is directed, to do what he promised to do under a contract’.[1] Created and developed by the English Court of Chancery, this equitable remedy is a manifestation of the maxim that equity acts in personam — allowing a court of equity to order parties to perform their contractual obligations.[2] Like other equitable remedies, specific performance is also a discretionary remedy unlike damages — which is available as of right.

​Unlike civil law, specific performance has traditionally been viewed as a secondary remedy in common law, which is only limited to situations where the primary remedy, i.e. damages, have been found to be inadequate.[3]

Written by Ms Choong Shaw Mei, Advocate and Solicitor (Malaya) (non-practicing) and part-time lecturer at the Faculty of Law, University of Malaya.
Edited by Ashley Khor.
​Reviewed by Ee Jie.

Written by Bo Chi Chian, Liau Pin Chun, and Wallace Kew JiaRong.
Edited by ‘Umar Bin Ammar.
Reviewed by Ashley Khor Xin Hui and Ee Jie.

On 2nd November 2021, a man was convicted by the Magistrate Court under Section 498 of the Penal Code for enticing a married woman in order to have sexual intercourse with her at a palm oil plantation.[1] Section 498 is not a new law, nor has it been subjected to any recent amendment, but what surprises the public is that there are hardly any cases under Section 498 that have been brought to the court and even fewer cases reported in law journals.[2] Out of the blue, it was brought before the court as well as the eyes of the public again.
 
I.         INTRODUCTION
The law of enticement has long been subjected to criticisms by judges and scholars. It is suggested that the law of enticement is based on a master-servant relationship — where the wife's position within a marriage is inferior to that of her husband.[3] In that logic, a husband is understood as the 'master' of the family who has the right to 'manage' his wife, ironically similar to the term 'animal husbandry’.[4] Undefinably, some may suggest that the law of enticement is premised on the deprivation of the husband's proprietary right over his wife. To put it simply, when someone takes away the property of a husband (i.e. their wives), there is ipso facto — a cause of action for the husbands to claim their rights.[5]

Written by Ms Choong Shaw Mei, Advocate and Solicitor (Malaya) and part-time lecturer at the Faculty of Law, University of Malaya.
Edited by Chelsea Ho Su Ven. 
Reviewed by Ee Jie and ​Celin Khoo Roong Teng.

This wry statement by Gloster LJ cited in the landmark decision of Patel v Mirza[2] would equally summarise the position of the law on illegality in Malaysia after many years of problematic and conflicting judgements handed down by the courts over the years. Judges in Malaysia not only have to deal with the issues confronting the common law in this area of claims tainted by illegality, but additionally, they have to consider those issues in light of the relevant provisions in the Contracts Act 1950 (‘Contracts Act’).[3] While the interpretation of provisions in the Contracts Act is generally guided by common law principles, there are further issues involved in reconciling the various provisions within the Contracts Act itself as well as in accommodating the more recent developments in common law in the interpretation of provisions drafted in the 1890s.[4] Malaysian courts have struggled to consistently define the scope of illegality and decide on the relief afforded to parties claiming for payment or property transferred under a contract subsequently held to be void due to illegality.

Written by Anson Liow and Jacqueline Hannah Albert.
Edited by Florence Yeap Xiao Qing.
Reviewed by Celin Khoo Roong Teng.

As Warsan Shire concisely puts it, ‘no one leaves home unless home is the mouth of a shark’. As of the end of May 2021, there are around 179,570 refugees and asylum-seekers registered with the United Nations High Commissioner for Refugees (UNHCR) in Malaysia. Around 154,840 are Myanmar nationals,[1] representing about 86% of the group.[2]
  
On 23rd February 2021, 1,086 Myanmar nationals were sent back to their homeland by the Immigration Department of Malaysia despite the ongoing military coup and pandemic. More importantly, this was done in defiance of a court order halting said deportation.[3] In response to the public outcry, the Director General of the Immigration Department of Malaysia claimed that all the deported Myanmar nationals voluntarily agreed to be sent back, and no Rohingya refugees or asylum-seekers were amongst the deportees.[4] However, the reason as to why the deportation took place despite being stopped by the court was left unexplained.[5]

Written by Krishen Soogumaran, LLB, University of Hertfordshire.
Edited by Chrystal Foo.
Reviewed by Florence Yeap Xiao Qing, Luc Choong and Celin Khoo Roong Teng.

I. ARTICLE 17: INTRODUCTION
Article 17 of the European Union (EU) Directive on copyright and related rights in the Digital Single Market (2019/790) (DSMD) is part of a larger initiative to modernise the EU copyright rules.[1] Following the advent of Web 2.0 technologies, among the issues faced by rightsholders was that intermediaries were relieved from liability for any infringing works uploaded onto their platforms.[2] This allowed them to continue generating profit from said works, mainly through advertising revenue. In addition, rightsholders were poorly remunerated by intermediaries when compared to the revenue generated by their content. This came to be known as the ‘value gap’.[3] Article 17 of the DSMD aims to solve this by placing strict primary liability on intermediaries for infringing content uploaded on their platforms.[4] Liability can be relieved by either obtaining authorisation from rightsholders for the communication of copyrighted work, i.e., licensing agreements, or by ensuring unavailability of the infringing work from the outset, i.e., using upload filters,[5] or proving that said infringing work falls under a copyright limitation.[6] These limitations may be further developed on a national level for intermediaries to rely on.

 Written by Fok Xu Xuan, Lim Chin Hou & Tan Jel Mee, final year students of the Faculty of Law, University of Malaya.
Edited by Irdina bt Mohamad Damshal.
​Reviewed by Celin Khoo Roong Teng & Florence Yeap Xiao Qing.

The rise of Virtual Private Networks ('VPNs') is the product of the vast influx of internet accessibility and online services. VPNs have facilitated the usage of the public within the digital environment. Nonetheless, due to its nature of being commonly used to bypass site-blockers and allowing users the liberty of anonymity, VPNs have unknowingly aided the growth in suspicious internet activities. Consequently, this has muddied the waters within cyber law.

I. INTRODUCTION
A Virtual Private Network (‘VPN’), as the name suggests, is a service that provides users with virtual networks by creating private networks from public internet connections.[1] It enables users to connect to the internet via an encrypted tunnel to protect their online privacy and sensitive data.[2] For instance, when users install a VPN on their device, the VPN routes the internet connection through their VPN’s private server rather than the internet service provider’s (‘ISP’) server.[3] It hides the users’ internet protocol (‘IP’) addresses and data traffics from external snoopers, making their online actions virtually untraceable.[4]

 Written by Christopher Joseph Wei-Yan Guo, LLB (First-Class Honours), University of Liverpool.
Edited by Ashley Khor Xin Hui.
Reviewed by Luc Choong and Celin Khoo Roong Teng.

Written by Ms Carmen Tham Kar Mun and Mr Teoh Tiong Jin, Advocates and Solicitors, and Partners of Messrs Tham Teoh & Partners. 
Edited by Chelsea Ho Su Ven.
Reviewed by Florence Yeap Xiao Qing and Celin Khoo Roong Teng.

I. INTRODUCTION
The adverse impact on the economy and financial ramifications arising inevitably from the Coronavirus disease 2019 (‘COVID-19’) was further exacerbated by the lockdown measures that the government of Malaysia imposed. In response to this, initiatives have been taken to help cushion the blow and provide the public relief to their despair. Amongst which is the introduction of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (‘the Act’),[1] gazetted on 23rd October 2020.

The objective of the Act, inter alia, is to provide for temporary measures to reduce the impact of COVID-19 by making necessary modifications to certain provisions of several legislations i.e. the Housing Development (Control and Licensing) Act 1966,[2] the Limitation Act 1953[3] and the Insolvency Act 1967.[4]

Written by Geoffrey Jerry J Mosiol, a third-year law student of the Faculty of Law, University of Malaya.
Edited by ​Law Chi Kay and Phua Syuen Yue. 
Reviewed by Luc Choong and Celin Khoo Roong Teng.

Written by Ms Choong Shaw Mei, an Advocate and Solicitor (Malaya) and part-time lecturer in the University of Malaya.
Edited by Celin Khoo Roong Teng.

Lately, the UK Court of Appeal made another significant decision on the recoverability of LAD in the case of Triple Point Technology, Inc v PTT Public Company Ltd (‘Triple Point v PTT’). An interesting issue relating to claims for LAD in the event of a failure to complete performance of the contract was raised.
​
I. INTRODUCTION
The legal principles in contract law dealing with liquidated and ascertained damages (‘LAD’) have received a great deal of attention after the stunning restatement by the Federal Court in Cubic Electronics Sdn Bhd (In Liquidation) v Mars Telecommunication Sdn Bhd[1] (‘Cubic Electronics’) in 2018 when the apex court of Malaysia reinstated the importance and viability of LAD clauses.[2] The said decision was unexpectedly based on the UKSC decision of Cavendish Square Holdings BV v Talal El Maksessi[3] (‘Cavendish’) whereby the Federal Court realigned the law on LAD in Malaysia as set out in Section 75 of the Contracts Act 1950 with the new penalty test postulated by the UK Supreme Court. Recently, another significant decision on the recoverability of LAD was made by the UK Court of Appeal in the case of Triple Point Technology, Inc v PTT Public Company Ltd[4] (‘Triple Point v PTT’), which raised an interesting issue relating to claims for LAD in the event of a failure to complete performance of the contract.[5]  

Fraud is often defined as a wrongful deception that is intended to cause financial or personal gain, however fraud is notoriously difficult to prove. Thus, this begs the question what is the standard of proof required to establish fraud? Interestingly, Malaysia has had a colourful experience in the development of this area of law.

​I. INTRODUCTION
In one way or another, human beings, being one of the most social animals, are met with one type of decision which would determine their next course of action every single day — to believe or not to believe. Philosophers, young and old, have since the dawn of time debated on this particular issue: Is it in our nature to deceive others? As such, governments in every corner of the world have considered this debate in establishing their legal systems.

In this article, the author wishes to map out the development of Malaysian laws pertaining to one type of deceit: Fraud — specifically, matters relating to the standard of proof when it comes to civil fraud. This is not a relatively new area of discussion, but so long as fraud exists, as it is the case today, the author is of the opinion that it remains relevant and may benefit members of the legal world and laypersons alike.

Even if the customary status of the principle of non-refoulement remains elusive, all is not lost for the Rohingyas fleeing on rickety boats. In our third and final article, we will explain how an ASEAN framework can be forged from the law of the sea and law of asylum.

I. OVERVIEW  

Finally, the Association of Southeast Asian Nations (ASEAN) agreed to accept their long-suffering neighbours fleeing from internal strife with open arms. It was an unprecedented moment of concession and cooperation by States not even parties to the Refugee Convention.[1]
 
The Indochinese boat crisis would always be remembered with bittersweet feelings.
 
After the Vietnam War ended in 1975, tens of thousands of Vietnamese and Laotian fled from the reverberating aftershocks on boats to Hong Kong and South-East Asia.[2] Save for China taking in about 260,000 Vietnamese, all other neighbouring countries refused to grant asylum.[3]
 
In July 1979, 65 States attended meetings of the UN International Conference on Indochinese Refugees held in Geneva. A mutual understanding was reached. Western countries such as the United States (US) and Canada agreed to resettle the Indochinese refugees, whilst ASEAN countries would only provide them ‘temporary refuge’ pending such resettlement or return to their homelands.[4]
 
Despite initial positive reception,[5] ASEAN gradually grew disillusioned. Reduction of quotas and slow processing in the West caused a ‘caseload’ building up in Asia.[6] The rate of arrivals far outpaced the rate of resettlement.[7] Temporary asylum was turning into permanent camps.

In line with calls for women's empowerment and the right to parenthood, the time has come for Malaysia to embark on a new horizon of the medical industry and legalise commercial surrogacy. As long as we have the guidance of an efficient legal framework and learn from countries which legalise surrogacy, it may be beneficial to both intended parents and surrogate mothers alike.

I. INTRODUCTION
 
Pregnancy and birth-giving are considered the most sensitive and sacred aspects of humanity. Therefore, it is understandable for some to consider the practice of renting a womb as blasphemous. It is certainly absurd for women to purposely put their body through the strain of pregnancy only to give the baby away. Then again, that is exactly what commercial surrogacy is, and it is a highly profitable industry. Commercial surrogacy is, or at least it was, a juggernaut in the global economy, by grossing between 500 million US dollars and 2 billion dollars in India alone.[1] However, in the last decade such practice has been banned by several countries such as the United Kingdom, Canada, and even in India, where it had thrived the most. This begs the question, what is so bad about commercial surrogacy? After all, commercial surrogacy is an attractive alternative for infertile couples while offering financial opportunity to women who are willing to become surrogate mothers. Hence, the aim of this article is twofold: first, to show that the countries which banned commercial surrogacy were merely unable to regulate it; and second, that commercial surrogacy, with an efficient legal framework, can be beneficial to infertile couples and surrogate mothers alike.

A person is stateless when he or she is not a national of any state under its law. Many human rights organisations have defended the right of stateless persons to be accorded a nationality in order to afford basic healthcare and education, but it still remains a hard-fought battle.

I. INTRODUCTION

It is trite law that he who asserts must prove. Yet, when deciding cases regarding statelessness, two issues remain contentious: (i) who bears the burden of proving that the applicant is, in fact, stateless, and (ii) to what standard must this be proven? This article will lay out the positions adopted by the Malaysian Court of Appeal regarding these issues in the cases of Than Siew Beng[1] and Lim Jen Hsian.[2] The article also aims to analyse the stance of other jurisdictions in contrast with Malaysia’s, particularly the European Court of Human Rights and the Australia Administrative Appeals Tribunal, to prove Malaysia’s prejudicial stance against stateless applicants and non-conformity to international standards. Additionally, it advocates for the burden of proof to be shared between the applicant and the state by analysing the importance of a flexible approach to the standard of proof on a case-by-case basis. 

Malaysia’s pushback operations against Rohingya boats during the COVID-19 pandemic has once again stirred controversy. In the first article of this three-part series, we will examine whether any customary rule of non-refoulement can be derived from human right treaties in order to engage Malaysia’s international responsibility.

I. OVERVIEW
​
The Rohingyas hold the unenviable distinction as the ‘most persecuted minority in the world’.[1] For decades, they have been subjected to violence — from murder to rape — in the northern Rakhine region of Myanmar.[2] The slow pendulum swing of political power from the military junta to the quasi-democratic government steered by Nobel Laureate Aung San Suu Kyi has brought little respite.[3]  
 
The international community no longer watches in silence. In April 2017, the United Nations Human Rights Council (HR Council) undertook an international independent fact-finding mission in Myanmar.[4] In September 2018, the HR Council reported that the Rohingyas suffered ‘systemic oppression and persecution’.[5] In August 2019, the HR Council confirmed there are ‘reasonable grounds to conclude… that Myanmar incurs State responsibility under the prohibition against genocide and crimes against humanity, as well as for other violations of international human rights law and international humanitarian law’.[6]

S.21(1) of the UK Limitation Act 1980 has revealed its unfairness as it leaves the claimants barred by limitation simply because the trust property lies in the hands of a dishonest assister. Therefore, there is a need for a statutory intervention or legislative reform to crystallise the view of the slim majority in the UK case of Williams v Central Bank of Nigeria.​

I. INTRODUCTION
​
For more than a century, the scope of limitation on actions by beneficiaries of a constructive trust against dishonest assisters or knowing recipients has continued to confound lawyers and scholars alike. Although such conundrum has been recently revisited by the UK Supreme Court in Williams v Central Bank of Nigeria (Williams),[1] the slim 3-2 decision raises more questions than answers. In Malaysia, the High Court has followed Williams[2] without delving deep into the majority and minority opinions of the four Law Lords which so sharply divided the English apex bench.
  
The starting point of our analysis is S.21(1) of the UK Limitation Act 1980 (UK LA 1980)[3] (in pari materia with S.22(1) of the Malaysian Limitation Act 1953[4] and S.22(1) of the Singaporean Limitation Act[5]) which reads:
 
‘21. (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action –

(a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or
(b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.’  

Such section operates as an exception to the general rule prescribing a limitation period of six years on actions by a beneficiary to recover trust property or in respect of any breach of trust.[6] Simply put, such two exceptions can be characterised as the ‘fraudulent breach exception’ and ‘trust property exception’.

The principal question that has triggered much jurisprudential debate is this: do the two exceptions apply to actions against a stranger to a trust who is merely liable to account as a constructive trustee on the footing of dishonest assistance or knowing receipt? 

The absence of a specific law to protect privacy indicates the urgent need for Parliament to amend the PDPA in order to ensure the effectiveness of privacy protection laws in this country.

​I.          INTRODUCTION

The right to privacy is recognised as a fundamental right under Article 12 of the Universal Declaration of Human Rights (UDHR)[1] and Article 17 of the International Covenant on Civil and Political Rights (ICCPR).[2] Generally, privacy refers to the state of being free from public attention, violation or misuse.[3]  It represents an individual’s peace and tranquillity.

However, the legal concept of and rights to privacy have been proven difficult to define despite many attempts. The Calcutt Committee[4] defines privacy as the right of an individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by the publication of information.[5] The Australian Law Reform Commission divided privacy into four interrelated concepts,[6] known as information privacy,[7] bodily privacy,[8] privacy of communications[9] and territorial privacy.[10] In retrospect, the earliest and most widely used description to define the right to privacy was ‘the right to be let alone’, coined by Justice Cooley in 1888.[11]

Although this widely accepted definition remains elusive, privacy is undeniably multi-dimensional. It comprises of the right to be left alone,  the right to exercise control over one’s personal information, and  the right to protect one’s dignity and autonomy.[12]

​In the recent decision of Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui and Another, the Court of Appeal revisited the principles on forfeiture of deposits and the treatment of liquidated damages clauses in contracts that had been adopted and discussed by the Federal Court in Cubic Electronics v Mars Telecommunications in 2018.

​I.         INTRODUCTION
​
The Federal Court decision in Cubic Electronics v Mars Telecommunications[1] was generally welcomed by members of the legal fraternity as well as the construction and related sectors in Malaysia as being a commercially sensible and much needed restatement of the law on damages clauses. Prior to the said Federal Court decision, the use of damages clauses in most contracts was severely limited by Malaysian law pursuant to Section 75 of the Contracts Act 1950 (‘S.75 CA’). The Federal Court in Cubic Electronics held that S.75 CA allows the use of damages clauses unless they are proven to be penalty clauses and, inter alia, that S.75 CA would apply to the forfeiture of deposits. This landmark decision generated a great deal of interest from academicians as well as practitioners and has been cited with approval in a number of High Court decisions as well as a Court of Appeal decision.[2] However, the Court of Appeal subsequently handed down a rather unexpected decision in the case of Macvilla Sdn Bhd v Mervyn Peter Guan Yin Hui and Another (‘Macvilla’).[3] The Macvilla judgement appears to be critical of the approach taken by the Federal Court in Cubic Electronics.[4] While most of its statements on the law are obiter, the decision may well generate some confusion with regard to the clear restatement of the law on S.75 CA by the apex court.