Journal of Malaysian and Comparative Law

Editorial Note

Dr. Sheila Ramalingam — 2023-01-03

We end the year 2022 with the second issue of Volume 49 of the Journal of Malaysian and Comparative Law (JMCL). We are pleased to announce that starting from the first issue of Volume 49 published in June this year, JMCL is now available fully online via subscription. The previous volumes are fully accessible online without any subscriptions. This is to give JMCL more accessibility and visibility. Most importantly, it is to ensure that our articles reach audiences far and wide so as to impart, spread and share the valuable research and knowledge contributed by our authors.

LOST IN THE JURISDICTIONAL JUNGLE AND INTERPRETATIONAL MAZE: POWERS OF BANGLADESH COURTS IN RELATION TO FOREIGN SEATED ARBITRATIONS

Junayed Ahmed Chowdhury — 2023-01-03

This article critically assesses the accuracy of the majority judgment in the latest case of Accom Travels and Tours Limited v Oman Air S.A.O.C before the High Court Division of the Supreme Court of Bangladesh with respect to the jurisdiction of Bangladesh courts in foreign seated arbitrations under the Arbitration Act (Act No. 1) 2001 (Bangladesh). The article argues that the majority judgment in Accom Travels and Tours Limited v Oman Air S.A.O.C lost sight of the jurisdictional parameters of the court and the related interpretational elements under the Arbitration Act (Act No. 1) 2001 (Bangladesh) in relation to foreign seated arbitrations in the light of comparable judgments of India, United Kingdom and the United States of America.

LEGAL EFFECT OF NO ORAL MODIFICATION CLAUSE IN MALAYSIA: A QUEST FOR FREEDOM OF CONTRACT

Ng SeNg Yi — 2023-01-03

A ‘No Oral Modification’ clause (‘NOM clause’) essentially prohibits any subsequent variation of the contract unless it is similarly made in writing. Although such clause serves as a boilerplate clause in most circumstances, it has however unexpectedly become the cause of litigation in many instances across Commonwealth jurisdictions, dealing with the predicament of what should happen where the parties have subsequently orally agreed to vary their original agreement despite the existence of a NOM clause. This conundrum depicts that the notion of freedom of contract is itself not entirely straightforward. To this end, three distinct schools of thought in interpreting the same have been recently developed by the apex court of the United Kingdom and Singapore in MWB Business Exchange Centres Ltd v Rock Advertising Ltd and Charles Lim Teng Siang and another v Hong Choon Hau and another respectively. This article seeks to examine the legal approach(es) taken by the Malaysian courts in construing the enforceability of the NOM clause in the light of Malaysian case law and legislative regime, as well as the distinctive positions adopted by its judicial counterparts. It is found that while there appears to be at least two decisions of the Malaysian High Court adopting slightly diverging approaches, the local judicial trend largely suggests that the parties may contract out of section 92 of the Malaysian Evidence Act 1950 (and the exceptions therein) and the legal effect of the NOM clause is to be upheld. It is also submitted that a NOM clause is useful for several sensible commercial reasons.

UNDERSTANDING THE IMPACT OF DNA EVIDENCE IN THE CRIMINAL JUSTICE SYSTEM

Haezreena Begum Binti Abdul Hamid — 2023-01-03

The widespread use of deoxyribonucleic acid (‘DNA’) data to detect offenders and exonerate the innocent have been applauded by law enforcers and the judiciary as a breakthrough in the science of criminal investigation. However, the use of DNA evidence in court and methods of collection have raised important legal, medical and ethical questions. Among the questions raised is if the provisions compelling suspects to give DNA samples violate their personal autonomy and privacy rights. Despite this, the Deoxyribonucleic Acid (DNA) Identification Act 2009 (‘DNA Act’) permits law enforcers to collect DNA samples from suspects, detainees, prisoners and drug users. Such practices demonstrate how the DNA Act is able to reconfigure the criminal justice system through methods that are capable of overriding a person’s autonomy and privacy rights. Therefore, this article aims to examine three main areas. First, how the DNA Act provides an avenue for law enforcers to collect DNA through force. Second, how illegally obtained evidence can be admitted in court on the grounds of relevancy. Third, whether the weight and value of DNA evidence is sufficient to prove a case beyond reasonable doubt. The article will conclude by asserting two main points. First, that compelling certain individuals to give their DNA samples infringes a person’s right to privacy and autonomy. Second, that DNA samples can only estimate the probability that the donor is the source of the sample but cannot confirm the person’s participation in a crime. Therefore, this article argues that DNA evidence alone cannot implicate a person beyond reasonable doubt in a criminal trial.

DETERMINING THE JURISDICTION OF COURTS IN A MULTIMODAL TRANSPORT CARRIAGE UNDER NIGERIAN LAW – CARDINAL IN AN AFRICAN CONTINENTAL FREE TRADE AREA

DAMILOLA OSINUGA — 2023-01-03

The recent establishment of the African Continental Free Trade Area (‘AfCFTA’) was predicated on the belief that increased intra-African trade and market integration would benefit the continent. The pact is expected to increase intra-African trade by making Africa a single market, harnessing its immense potential of over a billion persons and the Gross Domestic Product of circa three trillion United States Dollars. Without access to markets and resources, growth and continued poverty in society will stagnate. Accordingly, transportation is essential to international trade and regional integration. Research shows that multimodal transportation could create a cheaper transportation option than unimodal transportation. According to statistics, multimodal transport can reduce transportation costs by circa 20%, help enhance effectiveness in transportation by 30%, reduce the risk of damage to cargo by 10%, and aid energy savings and emissions. The United Nations Economic Commission for Africa (UNECA), through its Regional Advisor on Trade, has advised that the establishment of Multimodal Transport Operators (MTOs) should be encouraged to ensure the non-interrupted flow of goods from the origin to the destination. This paper particularly focuses on the determination of the jurisdiction of multimodal transportation and the extent to which the current lack of a clear legal framework affects a predictable and foreseeable determination of the jurisdiction of courts. The research considers these issues at a time when African leaders have come together to sign an agreement for the establishment of the AfCFTA.