On 25 August 2020, the Co-operatives Societies (Amendment) Bill 2020 was tabled for first reading... more On 25 August 2020, the Co-operatives Societies (Amendment) Bill 2020 was tabled for first reading in Parliament with the aim of encouraging the formation of more co-operatives. The Bill does not seem to attract much public attention , probably due to the presence of the more interesting and much anticipated Covid-19 Bill. This is unfortunate as the co-operatives sector has the potential to generate economic growth while doing good. The reform in the Co-operatives Societies (Amendment) Bill 2020 should be taken as the start towards a holistic review of the legal and regulatory framework for cooperative in Malaysia. It is time that we consider a legislative framework for cooperatives societies that will foster the use of cooperatives as a means to ensure inclusive and shared prosperity. At the same time, the legislative framework must also address governance and conflict of interests issues. This requires a relook of the governance and decision-making process of the board and decision-making structure among members
The research objective is o discuss the factors affecting the relationship between the legal syst... more The research objective is o discuss the factors affecting the relationship between the legal system and investment by Oman's economic structure, tax issues and FDI. The researcher adopted the descriptive analytical approach, as the results revealed that: Tax exemption controls for foreign investment projects issued under Ministerial Resolution 45/2005 1 and its amendments issued by the former Ministry of National Economy, the Ministry of Trade, Industry and Investment Promotion should be abolished now, because they have become ineffective because they have become ineffective in connection with laws that have become null and wrong Such as the Corporate Act 4/1974 2 and the Foreign Capital Investment Act 102/1994 3 , their amendments became useless because of a number of changes in investment-related legislation, thus agreed upon by a number of previous studies.
International Journal of Legal Developments & Allied Issues
The quest for additional revenue yield has led to fundamental changes in the Cameroonian tax syst... more The quest for additional revenue yield has led to fundamental changes in the Cameroonian tax system, specifically in the method of taxing capital gains on transfer of shares. Though aimed at improving the system from an equitable angle, these changes may give rise to theoretical controversy given the method of taxing these gains. In particular, the trigger of the capital gains tax (CGT) and the method of taxing corporate profits are potential elements to be raised against the recent increase of CGT rate on shares and the deletion of the incentives initially granted. This paper argues the inappropriateness of these changes through an evaluation of its rationale. Notwithstanding the primacy of the equity criterion, the theoretical basis for taxing these gains may however dictate departure from such principle in order to achieve the objective of increasing the revenue yield.
The phenomenal growth of offshore trusts valued in billions of dollars at the end of the last cen... more The phenomenal growth of offshore trusts valued in billions of dollars at the end of the last century as a result of its ability to attract, transfer and protect substantial sums of money from the settlor’s country to overseas jurisdictions with the potential to save, reduce, avoid and evade taxes have been subjected to critical examination by tax authorities, the courts, non-governmental organisations and the media, especially in the years following the 2008 financial crisis. The objective of this paper to briefly introduce the nature and uses of offshore is trusts and to focus on some of the important challenges they face in a hostile environment. An area of evolving interest is the secrecy issue inherent in offshore trusts which has been abused as a veil for tax avoidance/tax evasion.
Certainty in law is a much valued attribute and is fundamental to upholding the rule of law. In r... more Certainty in law is a much valued attribute and is fundamental to upholding the rule of law. In revenue law, tax payable must be certain and not arbitrary but can we interprete statutory provisions with certainty in the absence of important terms and concept purposely left out of the definition section. The problem is compounded by the wide discretionary powers given to tax officials in the execution of their functions. The lawyer's definition of a term may not converge with definitions from other disciplines. A good example being the concept of profit but these disciplines may provide assistance; however the matter is resolved legally by examining the facts and applying the law as envisaged by Parliament. The essence of this contradiction underlines the difficulty in interpretation of language as used in the legislation by the legislators, which ultimately sheds light on the causes of uncertainty in law. However, uncertainty has a utilitarian role, leaving the courts latitude to find the appropriate legal solution, either in defining terminologies and concepts or in the application of legal rules as long as the courts approach is predictable.
Global oil prices have fallen sharply, leading to significant revenue shortfalls in many energy e... more Global oil prices have fallen sharply, leading to significant revenue shortfalls in many energy exporting nations. It should be recalled that from 2010 until mid-2014, world oil prices had been fairly stable, at around $110 a barrel. But since June last year, prices have more than halved. The questions that are being raised by some stakeholders centre on the reason for the falling price of oil. This paper looks at the potential long term solutions in a climate of persisting lower oil prices. The objectives of this paper are to draw attention to the implications of the plunging oil prices in the way that it affects Malaysia particularly, to show how Malaysia's reliance on oil exports could become a drag on its economy, to analyse implications policymakers should address on the impact of lesser oil revenues on the economy and to focus on the remedial measures potentially available to them through appropriate legal mechanisms, particularly tapping alternative sources of revenue. Th...
The power of the internet to connect various interest groups has spawned novel ways of conducting... more The power of the internet to connect various interest groups has spawned novel ways of conducting transactions giving rise to the genesis of new service providers who aspire to unlock the potential of emerging business models in the electronic marketplace. Equity crowdfunding, an important form of crowdfunding enables the ‘crowd’ on the internet to finance new business ventures and start ups through online crowdfunding platforms in exchange for equity in the business. The objective is to gain access to an unprecedented source of capital created by the small contributions of members of the public. The inherent risk of investors losing money in new business ventures coupled with the increasing incidence of fraudulent online schemes call for regulatory measures to protect the investors in addition to facilitating the provision of the service. Malaysia has laid down the legal foundations for the provision and regulation of this new form of fundraising through the 2015 amendment to the C...
Waqf is a form of voluntary charity and its purposes are recognised by Islamic law as religious, ... more Waqf is a form of voluntary charity and its purposes are recognised by Islamic law as religious, pious or charitable. Charitable trust is a public trust where the settlor may aim to create certain purposes. Both waqf and charitable trust share the same objective, which is for the benefit of the community at large. The objective of this article is to reveal how the requirements of “public benefit” in charitable trust are applicable to waqf cases. In determining the validity of a charitable trust, the requirement of public benefit is essential, particularly under the last three charitable purposes, namely advancement of education, advancement of religion, and other purposes beneficial to the community. Besides, the personal nexus test is applied in the case of charitable trust to ensure no personal linkage between the founder and the beneficiaries. These two elements are necessary to establish a valid charitable trust. The English court will first filter out such a case to ensure that...
This paper examines responsible lending obligation among various credit providers under the prese... more This paper examines responsible lending obligation among various credit providers under the present legal and institutional framework in Malaysia. The scope of consumer credit industry includes banking, hire-purchase, moneylending and pawnbroking. The study finds an inconsistent approach in dealing with responsible lending whereby only banking institutions regulated by the Central Bank of Malaysia are subject to this obligation while non-bank institutions are not. Several recommendations for future improvements are proposed by referring to the practice of several other jurisdictions. The suggestions will help the policymakers to seriously consider imposing this obligation on all credit providers. Eventually, the protection against the irresponsible lending practice is accorded to a wide range of financial consumers in consumer credit industry in Malaysia.
Complaint management and redress mechanism constitute cardinal elements of financial consumer pro... more Complaint management and redress mechanism constitute cardinal elements of financial consumer protection which should be provided by the financial consumer protection regulator. This study explores the role of the Central Bank of Malaysia, the Ministry of Domestic Trade and Consumer Affairs as well as the Ministry of Housing and Local Government to ensure proper complaint management and redress mechanism in favour of financial consumers of different segments of consumer credit. Applying doctrinal, qualitative and comparative law research methodology, the study finds that as a result of fragmented approach in regulating consumer credit in Malaysia, these aspects are pursued with different priorities and enthusiasm by respective regulators. Thus, the benefit of protection varies from one class of financial consumers to another. To ensure consistency and efficient protection, the study proposes for the establishment of a single regulator, the approach adopted by Australia, a jurisdicti...
This study explores the principle of waqf in the context of current tax policies governing waqf p... more This study explores the principle of waqf in the context of current tax policies governing waqf properties. In Islamic law, waqf is defined as charity whereby the donor endows the property in the name of Allah SWT for the benefit of the public at large. However, for tax exemption purposes, there is no specific provision in the Income Tax Act 1967 (ITA). Waqf is under the State List in the Federal Constitution and it comes under the jurisdiction of state governments. Currently, there is a misunderstanding about tax deduction in Section 44(6) and Section 44(11C) of ITA that includes waqf as a gift and gets the same tax treatment. Nevertheless, there are strong justifications which state that waqf does not fall within the scope of Section 44(6). The study will analyse the status of waqf institutions which are eligible for tax deduction and the reason why waqf does not fall within the scope of donation under section 44(6) of the ITA. The methodology used in this study is doctrinal legal...
The significance of this study lies in its proposal to insert an appropriate provision into the P... more The significance of this study lies in its proposal to insert an appropriate provision into the Patents Act 1983 to embody the provisions of Article 31 bis TRIPS Agreement. The methodology adopted in this study is library-based, and relies extensively on primary sources such as the Paris Convention, the TRIPS Agreement and the Patents Act 1983. This is further supported through secondary sources such as articles, books, websites and newspaper reports. The research question posed in this study aims to identify the most appropriate provision that should be incorporated into the Patents Act 1983 in addressing the public health flexibilities provided under Article 31 bis. The purpose of this study is to demonstrate that Article 31 bis is best incorporated into the Patents Act 1983, under the right of the government mechanism rather than through the compulsory license mechanism. Furthermore, the scope of this study is limited to issues that address the abuse of monopoly, granted by the p...
Although the incidence of Quistclose trusts in case law is not a common occurrence, the interest ... more Although the incidence of Quistclose trusts in case law is not a common occurrence, the interest it has spawned among judges and commentators in common law jurisdictions is legion and has been claimed ‘to represent the single most single most important application of equitable principles in commercial life.’79 The nature of the Quistclose trust raises a number of legal challenges: whether it is an express or a resulting trust, whether there is a combination of a primary and a secondary trust, does it comply with the beneficiary principle as an express trust and whether a third party designated by the payer-beneficiary can take advantage of the trust. Recently the Malaysian courts at all levels in PECD Sdn Bhd v Amtrustees Bhd80 had the opportunity to consider the position of a designated third party and they have positively endorsed the view that he can benefit under the primary trust. The objective of this paper is to assess the legal principles in the application of Quistclose tru...
For more than a century Lister v Stubbs (1890) 45 Ch D 1 stood as authoritative Court of Appeal j... more For more than a century Lister v Stubbs (1890) 45 Ch D 1 stood as authoritative Court of Appeal judgment denying the recovery of profits acquired from the successful investment of gains obtained in breach of fiduciary duties. The rule was rationalized on the basis that while the claimant was entitled to the proceeds so unlawfully obtained, he lacked any form of proprietary title to the profits accumulated by the defaulting fiduciary. The harsh reality of the rule produced an unfair outcome to the claimant and the Privy Council refused to apply it in Attorney-General for Hong Kong v Reid [1994] 1 AC 324. The rule also fell out of favour in other leading commonwealth jurisdictions and recently the English courts at all levels had the opportunity to reassess its relevance when the Supreme Court in FHR European Ventures LLP and others v Cedar Capital Partners LLC [2014] 4 All ER 79 consigned it to oblivion. The objective of this paper is to analyse the merits and the deficiencies of the...
On 25 August 2020, the Co-operatives Societies (Amendment) Bill 2020 was tabled for first reading... more On 25 August 2020, the Co-operatives Societies (Amendment) Bill 2020 was tabled for first reading in Parliament with the aim of encouraging the formation of more co-operatives. The Bill does not seem to attract much public attention , probably due to the presence of the more interesting and much anticipated Covid-19 Bill. This is unfortunate as the co-operatives sector has the potential to generate economic growth while doing good. The reform in the Co-operatives Societies (Amendment) Bill 2020 should be taken as the start towards a holistic review of the legal and regulatory framework for cooperative in Malaysia. It is time that we consider a legislative framework for cooperatives societies that will foster the use of cooperatives as a means to ensure inclusive and shared prosperity. At the same time, the legislative framework must also address governance and conflict of interests issues. This requires a relook of the governance and decision-making process of the board and decision-making structure among members
The research objective is o discuss the factors affecting the relationship between the legal syst... more The research objective is o discuss the factors affecting the relationship between the legal system and investment by Oman's economic structure, tax issues and FDI. The researcher adopted the descriptive analytical approach, as the results revealed that: Tax exemption controls for foreign investment projects issued under Ministerial Resolution 45/2005 1 and its amendments issued by the former Ministry of National Economy, the Ministry of Trade, Industry and Investment Promotion should be abolished now, because they have become ineffective because they have become ineffective in connection with laws that have become null and wrong Such as the Corporate Act 4/1974 2 and the Foreign Capital Investment Act 102/1994 3 , their amendments became useless because of a number of changes in investment-related legislation, thus agreed upon by a number of previous studies.
International Journal of Legal Developments & Allied Issues
The quest for additional revenue yield has led to fundamental changes in the Cameroonian tax syst... more The quest for additional revenue yield has led to fundamental changes in the Cameroonian tax system, specifically in the method of taxing capital gains on transfer of shares. Though aimed at improving the system from an equitable angle, these changes may give rise to theoretical controversy given the method of taxing these gains. In particular, the trigger of the capital gains tax (CGT) and the method of taxing corporate profits are potential elements to be raised against the recent increase of CGT rate on shares and the deletion of the incentives initially granted. This paper argues the inappropriateness of these changes through an evaluation of its rationale. Notwithstanding the primacy of the equity criterion, the theoretical basis for taxing these gains may however dictate departure from such principle in order to achieve the objective of increasing the revenue yield.
The phenomenal growth of offshore trusts valued in billions of dollars at the end of the last cen... more The phenomenal growth of offshore trusts valued in billions of dollars at the end of the last century as a result of its ability to attract, transfer and protect substantial sums of money from the settlor’s country to overseas jurisdictions with the potential to save, reduce, avoid and evade taxes have been subjected to critical examination by tax authorities, the courts, non-governmental organisations and the media, especially in the years following the 2008 financial crisis. The objective of this paper to briefly introduce the nature and uses of offshore is trusts and to focus on some of the important challenges they face in a hostile environment. An area of evolving interest is the secrecy issue inherent in offshore trusts which has been abused as a veil for tax avoidance/tax evasion.
Certainty in law is a much valued attribute and is fundamental to upholding the rule of law. In r... more Certainty in law is a much valued attribute and is fundamental to upholding the rule of law. In revenue law, tax payable must be certain and not arbitrary but can we interprete statutory provisions with certainty in the absence of important terms and concept purposely left out of the definition section. The problem is compounded by the wide discretionary powers given to tax officials in the execution of their functions. The lawyer's definition of a term may not converge with definitions from other disciplines. A good example being the concept of profit but these disciplines may provide assistance; however the matter is resolved legally by examining the facts and applying the law as envisaged by Parliament. The essence of this contradiction underlines the difficulty in interpretation of language as used in the legislation by the legislators, which ultimately sheds light on the causes of uncertainty in law. However, uncertainty has a utilitarian role, leaving the courts latitude to find the appropriate legal solution, either in defining terminologies and concepts or in the application of legal rules as long as the courts approach is predictable.
Global oil prices have fallen sharply, leading to significant revenue shortfalls in many energy e... more Global oil prices have fallen sharply, leading to significant revenue shortfalls in many energy exporting nations. It should be recalled that from 2010 until mid-2014, world oil prices had been fairly stable, at around $110 a barrel. But since June last year, prices have more than halved. The questions that are being raised by some stakeholders centre on the reason for the falling price of oil. This paper looks at the potential long term solutions in a climate of persisting lower oil prices. The objectives of this paper are to draw attention to the implications of the plunging oil prices in the way that it affects Malaysia particularly, to show how Malaysia's reliance on oil exports could become a drag on its economy, to analyse implications policymakers should address on the impact of lesser oil revenues on the economy and to focus on the remedial measures potentially available to them through appropriate legal mechanisms, particularly tapping alternative sources of revenue. Th...
The power of the internet to connect various interest groups has spawned novel ways of conducting... more The power of the internet to connect various interest groups has spawned novel ways of conducting transactions giving rise to the genesis of new service providers who aspire to unlock the potential of emerging business models in the electronic marketplace. Equity crowdfunding, an important form of crowdfunding enables the ‘crowd’ on the internet to finance new business ventures and start ups through online crowdfunding platforms in exchange for equity in the business. The objective is to gain access to an unprecedented source of capital created by the small contributions of members of the public. The inherent risk of investors losing money in new business ventures coupled with the increasing incidence of fraudulent online schemes call for regulatory measures to protect the investors in addition to facilitating the provision of the service. Malaysia has laid down the legal foundations for the provision and regulation of this new form of fundraising through the 2015 amendment to the C...
Waqf is a form of voluntary charity and its purposes are recognised by Islamic law as religious, ... more Waqf is a form of voluntary charity and its purposes are recognised by Islamic law as religious, pious or charitable. Charitable trust is a public trust where the settlor may aim to create certain purposes. Both waqf and charitable trust share the same objective, which is for the benefit of the community at large. The objective of this article is to reveal how the requirements of “public benefit” in charitable trust are applicable to waqf cases. In determining the validity of a charitable trust, the requirement of public benefit is essential, particularly under the last three charitable purposes, namely advancement of education, advancement of religion, and other purposes beneficial to the community. Besides, the personal nexus test is applied in the case of charitable trust to ensure no personal linkage between the founder and the beneficiaries. These two elements are necessary to establish a valid charitable trust. The English court will first filter out such a case to ensure that...
This paper examines responsible lending obligation among various credit providers under the prese... more This paper examines responsible lending obligation among various credit providers under the present legal and institutional framework in Malaysia. The scope of consumer credit industry includes banking, hire-purchase, moneylending and pawnbroking. The study finds an inconsistent approach in dealing with responsible lending whereby only banking institutions regulated by the Central Bank of Malaysia are subject to this obligation while non-bank institutions are not. Several recommendations for future improvements are proposed by referring to the practice of several other jurisdictions. The suggestions will help the policymakers to seriously consider imposing this obligation on all credit providers. Eventually, the protection against the irresponsible lending practice is accorded to a wide range of financial consumers in consumer credit industry in Malaysia.
Complaint management and redress mechanism constitute cardinal elements of financial consumer pro... more Complaint management and redress mechanism constitute cardinal elements of financial consumer protection which should be provided by the financial consumer protection regulator. This study explores the role of the Central Bank of Malaysia, the Ministry of Domestic Trade and Consumer Affairs as well as the Ministry of Housing and Local Government to ensure proper complaint management and redress mechanism in favour of financial consumers of different segments of consumer credit. Applying doctrinal, qualitative and comparative law research methodology, the study finds that as a result of fragmented approach in regulating consumer credit in Malaysia, these aspects are pursued with different priorities and enthusiasm by respective regulators. Thus, the benefit of protection varies from one class of financial consumers to another. To ensure consistency and efficient protection, the study proposes for the establishment of a single regulator, the approach adopted by Australia, a jurisdicti...
This study explores the principle of waqf in the context of current tax policies governing waqf p... more This study explores the principle of waqf in the context of current tax policies governing waqf properties. In Islamic law, waqf is defined as charity whereby the donor endows the property in the name of Allah SWT for the benefit of the public at large. However, for tax exemption purposes, there is no specific provision in the Income Tax Act 1967 (ITA). Waqf is under the State List in the Federal Constitution and it comes under the jurisdiction of state governments. Currently, there is a misunderstanding about tax deduction in Section 44(6) and Section 44(11C) of ITA that includes waqf as a gift and gets the same tax treatment. Nevertheless, there are strong justifications which state that waqf does not fall within the scope of Section 44(6). The study will analyse the status of waqf institutions which are eligible for tax deduction and the reason why waqf does not fall within the scope of donation under section 44(6) of the ITA. The methodology used in this study is doctrinal legal...
The significance of this study lies in its proposal to insert an appropriate provision into the P... more The significance of this study lies in its proposal to insert an appropriate provision into the Patents Act 1983 to embody the provisions of Article 31 bis TRIPS Agreement. The methodology adopted in this study is library-based, and relies extensively on primary sources such as the Paris Convention, the TRIPS Agreement and the Patents Act 1983. This is further supported through secondary sources such as articles, books, websites and newspaper reports. The research question posed in this study aims to identify the most appropriate provision that should be incorporated into the Patents Act 1983 in addressing the public health flexibilities provided under Article 31 bis. The purpose of this study is to demonstrate that Article 31 bis is best incorporated into the Patents Act 1983, under the right of the government mechanism rather than through the compulsory license mechanism. Furthermore, the scope of this study is limited to issues that address the abuse of monopoly, granted by the p...
Although the incidence of Quistclose trusts in case law is not a common occurrence, the interest ... more Although the incidence of Quistclose trusts in case law is not a common occurrence, the interest it has spawned among judges and commentators in common law jurisdictions is legion and has been claimed ‘to represent the single most single most important application of equitable principles in commercial life.’79 The nature of the Quistclose trust raises a number of legal challenges: whether it is an express or a resulting trust, whether there is a combination of a primary and a secondary trust, does it comply with the beneficiary principle as an express trust and whether a third party designated by the payer-beneficiary can take advantage of the trust. Recently the Malaysian courts at all levels in PECD Sdn Bhd v Amtrustees Bhd80 had the opportunity to consider the position of a designated third party and they have positively endorsed the view that he can benefit under the primary trust. The objective of this paper is to assess the legal principles in the application of Quistclose tru...
For more than a century Lister v Stubbs (1890) 45 Ch D 1 stood as authoritative Court of Appeal j... more For more than a century Lister v Stubbs (1890) 45 Ch D 1 stood as authoritative Court of Appeal judgment denying the recovery of profits acquired from the successful investment of gains obtained in breach of fiduciary duties. The rule was rationalized on the basis that while the claimant was entitled to the proceeds so unlawfully obtained, he lacked any form of proprietary title to the profits accumulated by the defaulting fiduciary. The harsh reality of the rule produced an unfair outcome to the claimant and the Privy Council refused to apply it in Attorney-General for Hong Kong v Reid [1994] 1 AC 324. The rule also fell out of favour in other leading commonwealth jurisdictions and recently the English courts at all levels had the opportunity to reassess its relevance when the Supreme Court in FHR European Ventures LLP and others v Cedar Capital Partners LLC [2014] 4 All ER 79 consigned it to oblivion. The objective of this paper is to analyse the merits and the deficiencies of the...
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