INSAF | The Journal of the Malaysian Bar

NO LIMITATION FOR UNJUST ENRICHMENT CLAIMS IN WEST MALAYSIA?

Puthan Perumal — 2024-06-30

Unjust enrichment was only recognised as an independent cause of action in the United Kingdom in 1991 through the case of Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548. Singapore’s Court of Appeal in the case of Esben Finance Ltd v Wong Hou-Lianq Neil [2022] SGCA(I) 1 (“Esben Finance”) has held that claims in unjust enrichment, do not come within the ambit of the Singapore’s Limitation Act 1959 and therefore such claims in unjust enrichment, are not time-barred. West Malaysia’s Limitation Act 1953 share a common legislative history with the Singapore’s Limitation Act 1959 as both are modelled after the English law of limitations. This principle in Esben Finance should thus be adopted in West Malaysia.

ENFORCEMENT OF HUMAN RIGHTS CONVENTIONS UNDER INTERNATIONAL LAW AND ITS KEY CHALLENGES

Mohamed Hanipa Maidin — 2024-06-30

The key challenges in efficiently enforcing human rights conventions under international law are the central theme of this essay. Ergo, this essay 's sole intention is to highlight a slew of primary challenges faced by the international community in ensuring an effective enforcement of international human rights conventions under international law. Despite the fact the essay mentions two popular paradigms that have duly emerged under international law - Pinochet and Filartiga paradigms – which bring fresh international inventions in offering new ways of addressing human rights abuses, it never seeks, however, to offer any solution let alone practical solutions in tackling the problems of human rights abuses. This essay is essentially the improved or edited version of the earlier paper initially presented before law students at Simad University in Somalia. This essay also argues that the key challenges in effectively enforcing international human rights law ought to be given due recognition and top priority in its attempt to end the predicament of impunity plaguing the global population.

TRACING THE DEVELOPMENT OF THE LAW FOR ESTATE ADMINISTRATION IN WEST MALAYSIA

Azhani Arshad — 2024-06-30

The Portuguese, Dutch, and British administrations for over 400 years prior to Malaysian independence greatly influenced the structure and procedures for estate administration in West Malaysia. This is evident from the provisions of the primary statute, namely, the Probate and Administration Act 1959, which are derived from the Administration of Estates Act 1925 and procedures provided in the Malaysian Rules of Court 2012, which have been adopted mainly from the Non-Contentious Probate Rules 1954 of the United Kingdom. Hence, this article seeks to trace the origins of the applicable laws to analyse the evolution and development of the law for estate administration in the Straits Settlements, Malay States and the Federation of Malaya. The discussion includes the reception of English law into the Malaysian legal system in general and in the area of estate administration and the law of succession particularly. This article adopts a doctrinal analysis by examining existing primary and secondary materials, including statutory provisions such as the Probate and Administration Act 1959, the Rules of Court 2012, the Wills Act 1959, the Small Estates (Distribution) Act 1955, the Distribution Act 1958, case laws, and other legal and non-legal literature relating to the development of estate administration in West Malaysia. This article aims to contribute significantly to the existing body of literature and information on estate administration. It is observed that foreign laws on estate administration were applied generally, and this situation persists until today, resulting in some irregularities when such laws are applied to Muslims in West Malaysia, which are not in tandem with the current needs and practicalities.

THE SALIENT FEATURES OF THE CYBER SECURITY ACT 2024

Ida Madieha Abdul Ghani Azmi — 2024-06-30

This article uses the 5W1H method to analyse the salient features of the Cyber Security Act 2024. The legal analysis focuses specifically on the extent of the regulatory duties outlined in the Act. As a result, the penalties and enforcement mechanisms will not be discussed. The Act will be framed by comparing its provisions with those in other nations' benchmark laws. The article ends by highlighting areas to be addressed in the future by looking at recent legislative revisions in different countries.

AI AND THE DEATH OF THE LEGAL PROFESSION: MUCH ADO OVER NOTHING

Ida Madieha Abdul Ghani Azmi — 2024-06-30

This article examines the usage, risks, challenges, and potential legal liabilities of AI in legal practice. Using statutory interpretation, doctrinal analysis, and content analysis, the article examines the usage of artificial intelligence in legal practice and analyses the ethical and legal implications of such practice with a special focus on Malaysia, with useful precedents from the United States of America (USA) and the United Kingdom (UK). AI systems can be challenged for 'unauthorised provision of legal practice’. In Malaysia, only authorised persons can practice as advocates and solicitors, leaving out the position of AI tools as ambiguous. This article considers whether AI systems give legal advice and represent clients in courts in Malaysia. By tracing the development in the UK, US, and Europe, the article recommends regulating online legal advice and emphasising human oversight for using such AI systems. As the discourse on potential legal liabilities arising from the deployment of AI is still evolving, this article is confined to contemporary discourse on the issues. Countries may need to revisit their strict regulation on legal practitioners in lieu of the widespread use of AI tools to assist advisory and representation. AI systems may not be suited to professions that depend substantially on 'human professional conduct and etiquettes' such as legal practice. In such an instance, AI is best for 'human in the loop decision-making model’ but not to replace the professional human.

STAY OR NAY: THE COURT’S APPROACH TO A STAY OF PROCEEDINGS PENDING DISPOSAL OF ARBITRATION AGAINST NON-PARTIES IN MALAYSIA

Sandhya Saravanan — 2024-06-30

The topic issue is stay of proceedings and the key issue is stay of proceedings pending disposal of arbitration against non-parties. This essay shall examine the court’s approach in determining the merits of an application for a stay of proceedings pending disposal of arbitration proceedings with a narrow perspective of circumstances where the application is brought against and involves a non-party to the arbitration proceedings. This essay will study the case of Protasco Bhd v Tey Por Yee with an understanding of how the Commonwealth counterparts have dealt with the same as discussed in the case, and its application to cases that have later developed in Malaysia, in line with the main tenet of the legal and justice system i.e. prompt and efficient disposal of litigation.

List of Reviewers for Volume 41 (1) 2024

INSAF Journal — 2024-06-30