Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
A long time ago, in the sanctuary of Delphi in ancient Greece, dignitaries, heads of states, military leaders and commoners alike would form snaking lines to seek advice from Pythia, the Oracle of Delphi. Access to the sanctuary was limited to only a few days over nine months in a year, and to overtake the long lines, great sums were paid by some for Pythia’s oracles. The advices, believed to be from the gods, were communicated in indirect and mysterious ways. This left many departing visitors to Delphi to try to decipher the meaning of the advices they had received.
Now, as the threadbare paths and remains of Delphi are trampled upon by the hordes of modern tourists released by the busloads each day, some clients may be forgiven for thinking that they have chanced upon their own Pythia when they receive legal advice from their lawyers.
In this article, I will discuss the importance of commerciality to contemporary commercial legal practice.
Copyright refers to the right of the owner to control the doing of certain acts in relation to his or her created work
Image credits: http://www.tannet.my/malaysia-copyright-protection/
Copyright is a form of intellectual property. It is a legal term used to describe the rights that exist for the creators over their copyrighted work. An inference can be made that copyright was the first legal response to challenge new technology as it came into existence as early as the sixteenth and seventeenth century as a reaction to the rapid growth of moveable type printing presses which facilitated the production and distribution of printed materials. Prior to the rapid growth in the moveable type printing press in Johannes Gutenberg in what is now modern day Germany, rights involving creative works was never considered. Creative works were non-rivalrous despite existence and development of concepts relating to exclusiveness of property and goods. Throughout the glorious historic days of the Roman and Greek, written or spoken words were not covered by any sort of exclusivity.
The notion of Green Sukuk owes itself to when socially responsible investments are made with regards to the environment.
Image credits: https://www.shine.cn/archive/business/UN-partners-with-Alibaba-for-green-finance/shdaily.shtml
Before we indulge in the elucidation of Green Sukuk, the query that shall be first unfolded is the definition of Sukuk. Sukuk is an Islamic bond engineered to generate returns to investors without infringing the Islamic law prohibiting riba or interest. It is an investment in the assets using Shariah principles and concepts endorsed by the Shariah Advisory Council.
In the case of conventional bonds, the issuer has a contractual obligation to pay interest and principal to bondholders on certain specified dates.
In contrast, when investors buy Sukuk, they become Sukuk holders and receive a certificate from the issuer to evidence ownership. Hence, they are entitled to receive periodic profit payments on the principal amount invested. Upon maturity, the Sukuk holder will be reimbursed the principal amount of investment. This article aims to study the evolution and rise of Green Sukuk where the investment is specified to finance climate action projects.
The ASEAN Economic Community (AEC) was established in 2015 during the 27th ASEAN Summit in Kuala Lumpur, Malaysia
The Association of Southeast Asian Nations (ASEAN) was established primarily as a political bloc and security pact in the aftermath of the Vietnam War. ASEAN’s key objective was to promote intergovernmental cooperation and to facilitate economic integration among its member states, with the particular aim to enhance economic growth and trade respectively. At present, South East Asia is known to be one of the most open economic regions globally. This view is derived from the fact that ASEAN merchandise exports accounts for nearly fifty four per centum (54%) of the total ASEAN gross domestic product (GDP) which totals to approximately seven per centum (7%) of global exports.
To-date, ASEAN as an organisation has immensely helped its member states in achieving impressive economic growth as well as regional stability by working together harmoniously. Statistics show that between 2007 and 2015, the region has grown at an annual rate of 5.2 per centum and perhaps what is more astonishing is that the poverty rate in the region has declined for more than fifty per centum (50%), from thirty three per centum (33%) to fifteen per centum (15%) as early as 2000.
Due to these significant results, the member states of ASEAN realised that much more could be achieved if they operated as a single economic entity. Therefore, with the mutual aim to create a single free trade area for the region, the member states agreed to consolidate, integrate and transform ASEAN into a community called the ASEAN Economic Community (AEC) in 2007 – the mission was inspired by the regional integration established in Europe. AEC is directly expected to increase competitiveness, narrow development gaps and improve resilience against external shocks.
In December 2015, the AEC was formally launched and established making the initiative the biggest single economic policy in Southeast Asia. Despite its establishment, there is a long journey ahead before the AEC can become fully functional. Acknowledging this, the ten member states have mutually agreed on a blueprint to complete the programme by 2025. The 2025 AEC blueprint consist of five pillars namely, single market and production base, competitive economic region, equitable economic region, integration into the global economy and enhanced connectivity and sectorial cooperation.
It is to be noted that although the milestone achieved by ASEAN member states so far have been modest, the region faces immense obstacles concerning the process of economic integration. In this article, obstacles that ASEAN needs to overcome in order to achieve a fully functional economic community shall be discussed.
3/14/2018 0 Comments
Mediation in Islam (Sulh) is an ancient idea but it is still relevant to our current needs.
Image credits: https://farnfields.com/services-for-you/family-mediation/
Mediation, also known as Sulh or Wasaatah in classical Islamic text, is not a foreign concept in the Islamic legal system as sources of Islamic law have consistently encouraged the endeavour for amicable settlement. In promoting peaceful conflict resolution, Muslim scholars have introduced approaches that are both systematic and fact sensitive.
3/10/2018 1 Comment
Does an agent provocateur need to be corroborated under the law?
Does Malaysia have an intelligence agency like the CIA or MI6? States usually have their own method of operative centre for matters of intelligence and espionage. What if James Bond was an agent of our own intelligence agency? He would most certainly be an agent provocateur, or in other words, a spy, and not merely an informer. That being said, let there be a hypothetical situation in which Mr Bond and friends were to fumble and be called in the Malaysian courts – does Mr Bond then require corroboration for the evidence given during his testimony before the court? Surely this has never happened in the British film series – having the greatest spy of all times to testify in court as a botched operation always gets concealed in the end. However, in reality, case laws have established on whether it is necessary to corroborate an agent provocateur and an informer. This article provides a comparative analysis of the legal positions in the jurisdictions of Malaysia, United Kingdom and Singapore.
The protection of freedom of information is still indeterminate in Malaysia
As the popular saying goes, “the control of information is the tool of the dictatorship.” Further reiterated by the European Court of Human Rights, it is undisputable that access to information is crucial to the notion of transparency and good governance.
The right to freedom of information is important for the access to government-held information, which concerns public interest. It is not only a right guaranteed under multiple international declarations and covenants, but also a limb to the coveted right of freedom of expression. Information relating to corruption of public officials, government development projects, embezzlement of public funds by officials, et cetera will not be available to the public without the right to freedom of information. This right is crucial for journalists worldwide as it champions press freedom and its power to report on any matter which the public has the right to know. With that, the public is empowered to monitor the integrity of the government and is assisted in making an informed choice in elections upon their scrutiny of government integrity.
Despite international recognition, the protection of such a right in Malaysia is still indeterminate. A 1999 resolution endorsed by the Commonwealth Heads of Government, with Malaysia included, declared that the right to freedom of information should be guaranteed as a legal and enforceable right. Malaysia is also a signatory to the ASEAN Declaration of Human Rights (ADHR) which endorses all rights stated under the UDHR, thus impliedly recognising the right to freedom of information. However, the position taken by the legislative and the judiciary proves the contrary.
E-commerce is a new form of business which heavily incorporates technology, and lawmakers need to keep up by enacting laws which are able to adapt in order to curb arising legal concerns.
I. The Evolution of Electronic Commerce – A Brief Introduction
We live in an era where almost everything is available in a digital form or at least undergoing a phase of digitalisation process. What digitalisation process simply means is that despite atoms can construct almost everything in the physical world, from a human kidney to a high speed train, bits, on the other hand, is the basic fundamental block of the digital world. The revolution of digitalisation started in the early 1980’s. The revolution was triggered as computers started moving into homes from workplaces and research laboratories. The first ever conventional media that embarked into, and adopted digitalisation, was the music industry on a business and logical sense that information converted from atoms to bits are generally cheaper to store and encode while significantly reducing the distribution cost.
Technological advancement has grown and is continously growing on a rapid scale in recent years. This plays a direct link to the survival of most businesses. The most recent would be the fall of Nokia which has been successfully acquired by Microsoft. The direct and most apparent contributor to the acquisition was said to be the failure of Nokia to learn and keep abreast with technological changes that has led to their failure to survive.
The Employment Insurance System Act 2017 (EIS) is an Act that aims to encourage the employees to seek re-employment apart from strengthening their employability in the labour market through placement programmes.
In 2015, more than 44,000 workers were retrenched due to various factors such as restructuring of the finance institutions, falling in the crude oil price and unstable ringgit currency. In 2016, approximately 38,000 workers had lost their jobs with the majority of the lay-offs in manufacturing, trading, wholesale and retail, mining and finance sectors. As a trading nation with an open market economy, Malaysia is no exception to the impact of shift in the economic structure from traditional economy to knowledge-based economy. Loss of employment, especially among low-skilled workers and labour-oriented industry is unavoidable. Among the Association of Southeast Asian Nations (ASEAN), only Thailand, in 2004, and Vietnam, in 2009, had established an unemployment insurance scheme.
The existing Employment Act 1955 (“Act 265”) only provides social security protection to the unemployed workers in private sector whose wages do not exceed RM2,000 or employees in West Malaysia with specific jobs as described in the First Schedule of the Act 265. Furthermore, the Minister of Human Resources (“Minister”) may provide termination benefits, lay-off benefits and retirement benefits to the employees by regulations made under the Act 265. For instance, Employment (Termination and Lay-Off Benefits) Regulations 1980 (“Regulation 1980”) stipulates that an employer should pay termination or lay-off benefits to an employee who has been employed under a continuous contract of service for the past 12 months. However, both the Act 265 and Regulation 1980 only provide a minimum amount of termination or lay-off benefits payment to the employees. The existing laws neither encourage the employees to actively seek re-employment nor strengthen their employability in the labour market. Hence, the Employment Insurance System Act 2017 (“Act”), passed by the Dewan Rakyat on 25 October 2017, the Dewan Negara on 18 December 2017, and came into force on 1 January 2018, is a timely yet comprehensive law to protect the workers in Malaysia. The Act sets out provisions to provide certain benefits and a re-employment placement programme for insured persons in the event of loss of employment which will promote active labour market policies. This article provides an overview of the Act.
1/20/2018 0 Comments
There are situations where one party would unfairly impose an exclusion clause that protects them from any liability whatsoever in the event of a breach of contract
A recent Federal Court Appeal of a suit between an established local bank and two of its customers is generating slightly more than the usual interest in the normally staid realm of Contract Law. That the case should involve an exclusion clause is hardly surprising given the backdrop of judges’ often unfavourable views of the role of such clauses in a contract. Legal arguments involving the principles of fundamental breach and the contra proferentum rule have been accepted by judges to restrict the one-sided and arguably, often unfair application, of widely drafted exclusion clauses. Lord Diplock in his judgement in the case of Photo Production Ltd v Securicor Transport Ltd said “…the reports are full of cases in which what would appear to be very strained constructions have been placed upon exclusion clauses,…”
Notwithstanding such adverse perception, exclusion or limitation clauses can be regarded in one of two ways. On one hand, such a clause is often considered to be a means for the parties to apportion liability under the contract, and is said to reflect the intention of the parties in doing so. On the other hand, such clauses are often inserted into a contract by the stronger party to exclude all possible liabilities under the contract on the part of that party. In many of the latter cases, it would appear that the innocent party would have no recourse for the losses suffered caused by the breach or other wrongful conduct of the other party by virtue of the wide exclusion clause in the respective contract.
In cases involving many consumer contracts, the Parliaments in Malaysia and the UK have legislated to provide a measure of protection to consumers. In Malaysia, Section 24 of the Consumer Protection Act 1999 gives protection to consumers who “acquire[s] goods or services of a kind ordinarily acquired for personal, domestic or household purpose, use or consumption…” However, it is often in those cases involving contracts not governed by such legislations, and where it appears that one party had unfairly imposed an exclusion clause that basically protects them from any liability whatsoever in the event of a breach of contract, that invites strict scrutiny from the courts.
The recent Court of Appeal decision in Anthony Lawrence Bourke And Another v CIMB Bank Berhad (“Bourkes v CIMB”) would appear to be such a case, whereby the court may have felt compelled to intervene judiciously in the application of such an exclusion clause.