Ruzita Azmi

Discharge in bankruptcy: a comparative analysis of law and practice between Malaysia, Singapore and the United Kingdom (UK) – What can we learn?

In common law jurisdictions such as Malaysia, United Kingdom and Singapore, bankruptcy law is the legal mechanism in situations where individuals fall into bankruptcy. In the UK, automatic discharge was introduced fifteen years ago. Yet, no equivalent concept of automatic discharge has been introduced in Singapore, while in Malaysia, although a new provision allowing for an automatic discharge of bankrupt was proposed in the new Bankruptcy (Amendment) Bill 2016, it has yet to come into force upon official announcement by the Malaysian authorities. This paper examines and compares the laws and practices of discharge of bankrupts in Malaysia, the UK and Singapore.

The right to compensation for victims of armed conflicts

International humanitarian law ensures the protection and provision of assistance to the victims of armed conflicts.However, once individuals become the victim of violations of international humanitarian law, the protection offered by this body of law effectively ceases. In particular, the law on its face offers victims of serious violations of this law little or no means of obtaining compensation.International humanitarian law sharply contrasts on this point with tendencies in international law. The related but separate body of human rights law clearly articulates a legal right to a compensation for violations of fundamental rights.Most recently, the Rome Statute of the International Criminal Court authorizes the Court to determine any damage, loss or injury to victims and provide reparations to them.Humanitarian law, however, does not expressly guarantee victims of violations of the law any right to a legal compensation. This paper examines the legal ways and means currently available under international law to victims of violations of international humanitarian law to have their primary rights respected. It explores the question of whether victims have the right to compensation and the extent to which this right can be enforced, if at all. On the basis of a brief survey of international practice, it will be argued that while there is little doubt that victims enjoy rights under international humanitarian law, their rights do not appear to be justifiable and as such difficult to transform in a right to a compensation.

Schemes of arrangement as corporate rescue mechanisms: the Malaysia experience

The objective of the schemes of arrangement (SOA) is to arrive at a binding compromise or arrangement if it is approved by the Court on all the creditors or class of creditors or on the members or class of members and also on the company or, in the case of a company in the course of being wound up, on the liquidator and contributories of the company. There are a variety of modes and forms of compromises or arrangement or both under SOA, which can be used to rescue a company or its business, which is facing financial difficulties. Furthermore, the SOA enable a company to make an application to the court for a restraining order that provides a sort of moratorium from creditors’ action, giving the ailing companies time and space to negotiate the proposed Scheme that can be tailored to their needs to be rescued. This paper examines the process and effects of SOA. It also evaluates the use of the SOA in Malaysia as corporate rescue mechanisms.

Paradigm shift or mere codification of law: a review of directors’ duties in Malaysia

Directors’ duties to manage their company’s affairs originate from many sources. In Malaysia the sources of directors’ duties to the company are the common law, equity and statutory provisions. Directors’ duties can also exist from a company’s constitution and such duties can be contractual (contained in the letter of appointment). Under common law, directors have a duty of care and skill, while directors’ fiduciary duties of loyalty and good faith evolved under equity. These duties operate in parallel with the statutory duties imposed by the Malaysian Companies Act (CA) 1965. After the first major attempt at updating the CA 1965 via the Companies (Amendment) Act 2007, several changes were made to the law relating to common law, equitable and statutory duties of directors. This article examines the changes to the CA 1965 concerning duty of care and skill and fiduciary duties of directors of Malaysian companies. It also analyses the business judgment rule.