Malaysia updates

Litigation

Contributed by Gan Partnership
Federal Court rules that Arbitration Act provisions do not apply to non-parties to arbitration agreements
  • Malaysia
  • 22 October 2019

The Federal Court recently held that Sections 8 and 10 of the Arbitration Act do not apply to a non-party to an arbitration agreement. The appellant in the case was granted leave to appeal to the Federal Court on two questions of law, including whether the requirements of Section 10 of the act must be met by a party litigant seeking an injunction to restrain the prosecution of an arbitration to which it is not a party but which would affect its proprietary rights.

Proper construction of Section 93(3) of Bankruptcy Act and Rule 276 of Bankruptcy Rules
  • Malaysia
  • 30 July 2019

The Federal Court recently addressed the proper construction of Section 93(3) of the Bankruptcy Act 1967 and Rule 276 of the Bankruptcy Rules 1967. In this appeal, the Federal Court was requested to decide whether, in the case of a petition presented by multiple petitioners, the bankruptcy notice and creditor's petition could be amended and the deletion of one or more petitioners could be allowed.

Attorney general's discretion is not unfettered
  • Malaysia
  • 14 May 2019

The attorney general is a public officer who has been given ample discretionary power under Article 145 of the Federal Constitution to institute, conduct or discontinue any criminal proceedings. The question is, where a public officer's decision is subject to judicial review, does this equally apply to the attorney general?

Federal Court will not condone irregularities in court orders
  • Malaysia
  • 29 January 2019

The Federal Court recently reaffirmed that where a final court order is proved to be null and void on grounds of illegality or due to a lack of jurisdiction, the court has inherent jurisdiction to set aside the order, even in the absence of an express enabling provision. However, is the rule different for winding-up orders?

Lower threshold for staying proceedings pending appeal
  • Malaysia
  • 25 September 2018

Following a recent Court of Appeal decision on staying proceedings pending appeal, the test as to whether a stay ought to be granted under Section 44 of the Courts of Judicature Act has been simplified (ie, it now focuses on whether the true purpose of the stay is to preserve the integrity of the appeal). The new threshold to obtain a stay is considerably lower than that of the special circumstances rule under Section 73 of the Courts of Judicature Act.


Shipping & Transport

Contributed by Shearn Delamore & Co
Wrongful vessel arrest in collision claim
  • Malaysia
  • 31 July 2019

In a recent case, a plaintiff claimed that the defendant's vessel had collided into its vessel. To stop the plaintiff from arresting the vessel, the defendant obtained a letter of undertaking from the London Protection and Indemnity Club. However, notwithstanding the issue of the first letter of undertaking, the plaintiff arrested the vessel. The defendant subsequently asked the court to, among other things, declare the first letter of undertaking binding on the parties and set aside the warrant of arrest.

Foreign ships repairing undersea cables now exempt from cabotage policy
  • Malaysia
  • 08 May 2019

The government has decided to exempt from its cabotage policy foreign vessels repairing undersea cables at any cable landing station in Malaysian waters. This decision has eliminated restrictions which generated unintended effects and created significant delays and costs in repairing undersea cables. Now, highly specialised, purpose-built vessels can berth in Malaysian waters to repair undersea cables.

Court of Appeal finds carrier breached contract to deliver cargo
  • Malaysia
  • 19 December 2018

A high court recently dismissed a plaintiff's claim against the defendant-carrier for breach of its contract to carry and deliver cargo to the plaintiff on the basis that the plaintiff had failed to prove its claim. However, on appeal, the Court of Appeal upheld the plaintiff's claim and found the defendant liable.

Plaintiff granted indemnity for losses following arrest of vessel on delivery of cargo
  • Malaysia
  • 01 August 2018

A recent case before the High Court of Kuala Lumpur concerned an agreement to deliver cargo from Indonesia to India. The plaintiff, Jiang Xin Shipping Co Ltd, had brought an action against the defendant seeking indemnity for the losses incurred by the plaintiff in connection with an arrest of the plaintiff's vessel on delivery of the cargo.

Court rules in Silver Moon time charterparty case
  • Malaysia
  • 24 January 2018

In a recent case, the plaintiff had instructed the defendant – the owner of the vessel Silver Moon – to head to the South Indian Ocean for cargo operations. Despite having received the instructions, the vessel had to deviate and deal with multiple repair works. In view of the vessel being unseaworthy, the plaintiff contended that the defendant was in repudiatory breach of the time charterparty and had the vessel arrested.