scholarly journals THE STUDY ON THE SEPARATION OF OWNERSHIP AND CONTROL OF MALAYSIAN COMPANIES

2019 ◽  
pp. 36-44
Author(s):  
Kamaliah Salleh ◽  
Noor ‘Ashikin Hamid ◽  
Noraida Harun ◽  
Asiah Bidin ◽  
Zuhairah Ariff Abd Ghadas
Keyword(s):  
Content Analysis ◽  
International Law ◽  
Common Law ◽  
Best Interests ◽  
Board Meeting ◽  
Judicial Decisions ◽  
Legal Position ◽  
The Common ◽  
And Control ◽  
Made In

The members own the company by virtue of their shareholding and the directors manage and exercise control over the company’s affairs through the company’s board meeting. Despite segregation of powers and roles between the members and directors, there has been an inclination on the part of the members to participate to a greater extent in the company’s affairs. This paper aims to establish the legal position as between the directors and members that reflect the separation of control and ownership in the company under the common law and the Malaysian law. The method used in this study is the content analysis of the reported Malaysian and international law cases as well as the statutory provisions in order to examine the legal position established under the common law, the previous Companies Act 1965 and the newly introduced Companies Act 2016. The study reveals that the separation between the two has long been recognized and upheld by the common law as well as the Malaysian Acts. The introduction of section 195 of the Companies Act 2016, however, allows members to raise their voice in relation to matters which are within the powers of directors, hence the separation becomes slightly vague. In the absence of the latest judicial decisions to test the application of section 195, further review on its application may be required in order to determine methods to measure if a members’ recommendation is truly made in the best interests of the company.

scholarly journals CONTRACTUAL CAPACITY AND THE CONFLICT OF LAWS IN COMMON-LAW JURISDICTIONS (PART 1): THE UNITED KINGDOM

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
Eesa A Fredericks
Keyword(s):  
United Kingdom ◽  
International Law ◽  
South African ◽  
Common Law ◽  
The United States ◽  
Private International Law ◽  
Conflict Of Laws ◽  
The United Kingdom ◽  
Legal Position ◽  
The Common

This series of two articles provides a comparative overview of the position in the common-law conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, is investigated in part I. Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom is also discussed.Part II will deal with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). Part II also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 11 Common Law Africa: Common Law African Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Oppong Richard Frimpong
Keyword(s):  
International Law ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
International Treaties ◽  
African Countries ◽  
International Convention ◽  
Judicial Decisions ◽  
The Common ◽  
The Hague

This chapter studies the common law African countries Gambia, Ghana, Kenya, Malawi, Nigeria, Sierra Leone, Tanzania, Uganda, and Zambia. Their main source of private international law rules is judicial decisions or case law. Because of the relatively underdeveloped nature of their private international law regimes, foreign case law often serves as an important source of persuasive authority. In this regard, the jurisprudence of the English courts is particularly persuasive and is often referred to by the courts. In general, an international convention or treaty does not have the force of law in the legal systems of the countries under study, unless it is expressly incorporated into national law. In essence, they are dualist countries. However, courts in some of the countries under study have demonstrated a willingness to seek guidance from international treaties that are not yet domestically in force, if the circumstances are appropriate. Thus, it is possible, that courts in the countries under study may be receptive to the Hague Principles, especially if argued by counsel.

Contractual Capacity and the Conflict of Laws in Common-Law Jurisdictions (Part 2): Australasia, North America, Asia and Africa

Obiter ◽  
2020 ◽  
Vol 41 (1) ◽  
pp. 10-44
Author(s):  
Eesa A Fredericks
Keyword(s):  
United Kingdom ◽  
North America ◽  
International Law ◽  
South African ◽  
Common Law ◽  
Private International Law ◽  
Conflict Of Laws ◽  
The United Kingdom ◽  
Legal Position ◽  
The Common

This series of two articles provides a comparative overview of the position in common-law jurisdictions on the conflict of laws in respect of the contractual capacity of natural persons. The comparative study is undertaken in order to provide guidelines for the future development of South African private international law. Reference is primarily made to case law and the opinions of academic authors. The legal position in the law of the United Kingdom, as the mother jurisdiction in Europe, was investigated in part 1.1 Although Scotland is a mixed civil/common-law jurisdiction, the situation in that part of the United Kingdom was also discussed.Part 2 deals with the rules and principles of private international law in respect of contractual capacity in Australasia (Australia and New Zealand), North America (the common-law provinces of Canada and the United States of America), Asia (India, Malaysia and Singapore) and Africa (Ghana and Nigeria). This part also contains a comprehensive summary of the legal position in the common-law countries, followed by ideas for the reform of South African private international law in this regard.

National Legislatures

2018 ◽  
Author(s):  
Kevin L. Cope ◽  
Hooman Movassagh
Keyword(s):  
International Law ◽  
Common Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Comparative Analyses ◽  
Judicial Decisions ◽  
National Courts ◽  
Legislative Branch ◽  
National Legislatures

One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the role of the legislative branch. The same may be said of the extant comparative international law literature: most of it concerns the interpretive approaches of national courts. In fact, one of the field’s seminal pieces characterizes comparative international law as involving “comparative analyses of various domestic court decisions.” Not surprisingly, then, nearly all of this volume’s contributions deal mostly or exclusively with courts and judicial decisions. We agree that courts can play a large part in diversifying how international law works across different systems, but we contend that the foundation of the comparative international law project lies elsewhere. We argue that among the most important and underappreciated interpretative acts—and therefore, those currently most needing study—are the international law interpretations of national legislatures.

Is there a Duty to Prevent Harm in Tort? A Common Law Perspective

2021 ◽  
Vol 12 (2) ◽  
pp. 116-145
Author(s):  
Paula Giliker
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Tort Law ◽  
Public Authority ◽  
Public Authorities ◽  
Statutory Duty ◽  
Starting Point ◽  
Private And Public ◽  
Legal Position ◽  
The Common

Abstract In this paper, I will examine the extent to which the common law of tort in England and Wales imposes a duty to prevent harm on public authorities and private individuals. As will be seen, the starting point for the common law is that such liability should, in both cases, be regarded as exceptional. This must, however, be weighed against duties to prevent harm that arise under the torts of negligence and breach of statutory duty. Public authorities may also face claims that their failure to prevent harm is in breach of ECHR arts 2 or 3. While the law is complex, this paper identifies three key arguments that explain the current legal position at common law, namely that: (i) tort law should treat private and public parties alike: (ii) human rights claims should be treated as distinct from private law claims and (iii) libertarian concerns signify that a duty to prevent harm should be exceptional and needs to be justified. While these arguments provide both an explanation of and a justification for the current law, this article questions to what extent the treatment of public authority liability may be regarded as unduly harsh on vulnerable claimants.

scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

scholarly journals Roles of the Courts in New Zealand in Giving Effect to International Human Rights - with Some History

1999 ◽  
Vol 29 (1) ◽  
pp. 27 ◽  
Author(s):  
Kenneth J Keith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Armed Conflict ◽  
Common Law ◽  
General Effect ◽  
International Affairs ◽  
The Common ◽  
The Right ◽  
Domestic Law

The Right Honourable Sir Kenneth Keith was the fourth speaker at the NZ Institute of International Affairs Seminar. In this article he describes and reflects upon the role of courts and judges in relation to the advancement of human rights, an issue covered in K J Keith (ed) Essays on Human Rights (Sweet and Maxwell, Wellington, 1968). The article is divided into two parts. The first part discusses international lawmakers attempting to protect individual groups of people from 1648 to 1948, including religious minorities and foreign traders, slaves, aboriginal natives, victims of armed conflict, and workers. The second part discusses how from 1945 to 1948, there was a shift in international law to universal protection. The author notes that while treaties are not part of domestic law, they may have a constitutional role, be relevant in determining the common law, give content to the words of a statute, help interpret legislation which is in line with a treaty, help interpret legislation which is designed to give general effect to a treaty (but which is silent on the particular matter), and help interpret and affect the operation of legislation to which the international text has no apparent direct relation. 

3. Consent

2021 ◽  
pp. 37-58
Author(s):  
Jo Samanta ◽  
Ash Samanta
Keyword(s):  
Public Policy ◽  
Information Disclosure ◽  
Common Law ◽  
Case Law ◽  
Mental Capacity ◽  
Best Interests ◽  
Mental Capacity Act 2005 ◽  
Relevant Case ◽  
The Common ◽  
Mental Capacity Act

This chapter deals with consent as a necessary precondition for medical treatment of competent adults. It provides an overview of the common law basis of the Mental Capacity Act 2005, followed by discussion of issues relating to information disclosure, public policy, and the key case of Montgomery and how this applies to more recent cases. It considers the statutory provisions for adults who lack capacity, exceptions to the requirement to treat patients who lack capacity in their best interests, and consent involving children under the Children Act 1989. Gillick competence, a concept applied to determine whether a child may give consent, is also explained. Relevant case law, including Gillick, which gave rise to the concept, are cited where appropriate.

A Curious Decision by Zambia’s Highest Court: Six Years Imprisonment for Civil Contempt?

2019 ◽  
Vol 12 (2) ◽  
pp. 115-138
Author(s):  
Christopher Phiri
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Judicial Power ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
The Common ◽  
The Law

Abstract On 23 November 2018, the Supreme Court of Zambia delivered a judgement which suggests that Zambian judges have virtually unbridled power to move on their own motion to punish for contempt of court anyone who criticises their judicial decisions. This article considers that judgement. It argues that whilst justice might well have been done in the case in question, it was certainly not seen to be done. Two main reasons are given for this argument. First, the judges appeared to have acted both as prosecutors and adjudicators in their own cause when it was neither urgent nor imperative to act immediately on their own motion. Second, the classification by the Court of the contempt in question as civil contempt rather than criminal contempt is alien to the common law world. The article culminates in a clarion call for the Zambian legislature to intervene and clarify the law of contempt of court to avert capricious and unbridled invocation of the judicial power to punish for contempt.

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