CIPAA: Adjudication Leading the Way?

The Malaysian Lawyer2 Comments

The recent International Malaysia Law Conference 2018 was held on 14 to 17 August 2018. The conference featured an adjudication session titled ‘CIPAA: Adjudication Leading the Way?‘ A very enlightening, and somewhat troubling, discussion on how adjudication has developed in Malaysia over the last four years since its coming into force. Adjudication may not have achieved its aims of providing a swift resolution of disputes.

Image from http://www.engineersjournal.ie

 

The session featured three very experienced construction and adjudication practitioners. Ir Harbans Singh, a chartered engineer, arbitrator, adjudicator, mediator, and advocate and solicitor (non practicing). Rohan Arasoo, partner of Harold Lam Partnership. Belden Premaraj, principal partner of Belden.

The panel discussed whether adjudication was a success in Malaysia and whether it raised more hurdles for the construction industry players. The panel looked into the statistics of past adjudications and the case law that has developed.

The following is a report by Kelvin Seah who attended the interesting session. Continue reading →

Bankruptcy and Directors: Vacating Seat and Potential Illegality

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There can be legal repercussions to a company when one of its directors is adjudged bankrupt. It is common in the constitution or articles of association to provide that the office of the director will become vacant if the director becomes bankrupt. I set out below three interesting legal issues that arise from bankruptcy and directors.

First, I will deal with the potential adverse impact of bankruptcy on directors’ resolutions and legal proceedings. This in light of the recent Court of Appeal decision in Sazean Engineering & Construction Sdn Bhd v Bumi Bersatu Resources Sdn Bhd [2018] 5 AMR 443; [2018] MLJU 839. This decision was under the Companies Act 1965 (CA 1965). Secondly, I interpret these issues in light of the Companies Act 2016 (CA 2016). Thirdly, potential ways to overcome such arguments. Continue reading →

IMLC Conference Paper: Navigating the Directors’ Duty to Act in the Best Interest of the Company

Lee Shih2 Comments

On 15 August 2018, I spoke at the International Malaysia Law Conference 2018. I presented my paper on Navigating the Directors’ Duty to Act in the Best Interest of the Company. I have uploaded my paper and you can click on the link.

The paper analysed the Federal Court decision in Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd [2018] 2 MLJ 177, FC, or otherwise known as the Petra Perdana decision. The principle on the division of powers between the directors and shareholders was also compared with the present position under section 195 of the Companies Act 2016. Continue reading →

International Malaysia Law Conference 2018: Corporate Responsibilities Fiduciary Obligations

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I have been invited to speak at this year’s International Malaysia Law Conference 2018. I will be speaking on Day 2, Breakout Session 4, from 12pm to 1.15pm along with other panellist speakers. The session is titled Corporate Responsibilities: The Place of Fiduciary Obligations.

The Honourable Justice Margaret Beazly AO, President of the New South Wales Court of Appeal, will be the main speaker. Dato’ Anantham Kasinather, retired Court of Appeal Judge, and Dato’ Mohammed Faiz, Executive Chairman of PwC Malaysia, will also be sharing their insights.

Company directors have a fiduciary obligation to always act in the best interest of their company – in accordance with the business judgment rule – and to discharge their directors’ duties in compliance with the law. How should conflicts of duty and interests be dealt with? How does the Malaysian position compare with the position in New South Wales?

Continue reading →

Case Update: Statutory Immunity, the National Sports Institute of Malaysia, and the Issue of Good Faith

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In the High Court Grounds of Judgment dated 6 July 2018, this sports law decision touched on the statutory immunity of the National Sports Institute of Malaysia under the National Sports Institute Act 2011. This decision also sets out some useful general principles when statutory bodies rely on statutory immunity under an Act and how civil suits may risk being struck out. The National Sports Institute was represented by sports lawyers, Richard Wee and Lesley Lim.

As in this case, statutory immunity often includes the requirement of good faith. Would a plaintiff bringing an action have to assert the absence of good faith, or would the defendant have to actively put forward a good faith argument? Continue reading →