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UUM Journal of Legal Studies (UUMJLS) Vol. 11(2), July 2020

 
Mohsin Hingun & Rahamatthunnisa Mohamed Nizamuddin
 
Ida Madieha Abdul Ghani Azmi
 
Muhammad Umar Abdul Raza
 
Shariffah Nuridah Aishah Syed Nong, Aminuddin Mustaffa, Nazli  Ismail,  Kamaliah Salleh, M. Naziree Yusof & M. Badrol Awang
 
Aminuddin Mustaffa, Mohd Badrol Awang , Nazli Ismail Nawang & Yusramizza Md Isa @ Yusuff
 
Ahmad Nasyran Azrae
 
Abbas Mirshekari, Ramin Ghasemi & Alireza Fattahi
 
Nazura Abdul Manap & Azrol Abdullah
 
Nurul Barizah
 
Takyeddine Hathout, Rohana Abdul Rahman & Mohd Zakhiri Md. Nor
 

 
AMENDING SECTION 84 PATENTS ACT 1983 TO ENCOMPASS THE HEALTH FLEXIBILITIES LEVERAGE ACCORDED BY ARTICLE 31bis TRIPS AGREEMENT
1Mohsin Hingun & Rahamatthunnisa Mohamed Nizamuddin
Ahmad Ibrahim Kulliyah of Law, International Islamic University of Malaysia, Gombak, Malaysia
1Corresponding author: mohsin@iium.edu.my
 
ABSTRACT
 
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 31bis TRIPS Agreement. The methodology adopted in this study is library-based, and relies extensively on primary sources such as the Paris Convention, TRIPS Agreement and 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 31bis. The purpose of this study is to demonstrate that Article 31bis 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 patent system, with respect to the dire needs of the public health. Hence, this paper discusses the mechanisms that address abuse of the patent system under Article 5(A) Paris Convention, Articles 31 and 31bis TRIPS Agreement, the relevant corresponding provisions under the Patents Act 1983, and subsequently formulates new proposed amendments to Section 84 Patents Act 1983 to buttress the public health flexibilities provided under Article 31bis. The outcome of this study proposes that the provisions of Article 31bis should be incorporated into the Patents Act 1983 under the right of the government mechanism, by replacing the current Section 84 Patents Act 1983 with a newly proposed Section 84. 
 
Keywords: Article 31bis, compulsory licence (CL), Patents Act 1983 (PA), rights of government (ROG), TRIPS Agreement.
 

 
CHALLENGES FOR LEGAL EDUCATION IN THE ERA OF I.R.4.0
Ida Madieha Abdul Ghani Azmi
Civil Law Department, International Islamic University Malaysia, 50728 Kuala Lumpur
Corresponding author: idamadieha@iium.edu.my
 
 
ABSTRACT
 
The formulation of the National Policy on Industrial Revolution 4.0 (IR4.0) and Internet of things signals the Malaysian government readiness to come up with the necessary policy framework for the digitalised era. It has been said that universities’ curriculum structure and instructional design must also be revisited to ready the graduate to face the onslaught of technological revolution.  Through content analysis of relevant literature, this paper analyses the myriad ways in which legal education has been impacted by IR4.0 both in terms of the ‘body of knowledge’ as well as the ‘skill sets’ required for law students to survive in the era of automatous systems. The paper is structured to first explain the concept of IR4.0 and how some national countries leverage the digital technology to improve their economy or facilitate social transformation. The paper proceeds with a discussion of how autonomous system, artificial intelligence and data analytics can enhance the instructional design of teaching and researching law. In terms of the body of knowledge, most of the legal principles drawn for the brick and mortar environment are no longer relevant in the IR4.0 era. The paper reveals that the traditional method that focuses on the training of law graduates to think like a lawyer by understanding the reasoning in the judgement of cases or the preparation of conveyancing and court documents are no longer relevant in the IR4.0 era as these activities could easily be undertaken by bots. Instead, law students should be imparted with a multiplicity of human skills that could not be performed by autonomous systems such as those involving conscience, high level thinking, and emotion such as mediation, negotiation, counselling, court prosecution, advocacy, witness examination, plea mitigation as well as social skills, resource management skills, technical skills and most importantly system skills.
 
Keywords: Industrial Revolution 4.0, Legal Education, Legal Education, Body of Knowledge, Skill sets
 

 
THE DISCLOSURE FRAMEWORK OF RELATED PARTY TRANSACTIONS IN SELECTED ASEAN MEMBER STATES
Muhammad Umar Abdul Razak
Faculty of Law, Universiti Teknologi MARA, Malaysia
umar0001@uitm.edu.my
 
 
ABSTRACT
 
Related party transaction or RPT is a transaction that could either be harmful or beneficial to the company and minority shareholders. RPT can be considered as an efficient tool for the company or abused by the controlling shareholders. Therefore, one of the key factors to address this transaction is through disclosure. This study applied a content analysis method using materials that were largely library-based including primary and secondary data. The former was gathered from relevant theories to explain the application of the legal theories. Meanwhile, the latter was derived from published materials, such as textbooks, journal articles and online databases. In order to assess these materials, a combination of descriptive, critical and comparative data analysis approaches was employed in this study. This paper aims to understand the underlying applicable legal theories on RPT by analysing and comparing the disclosure framework in Malaysia, Singapore and Thailand that adopt the ASEAN Disclosure Standards (“ADS”). This paper finds that there is a disparity in the disclosure standard among these states despite having ADS in place. This problem calls for a clearer ex-ante approval process in ADS and to consider the model from the European Union’s Shareholders Amending Directive 2017/828 to improve the disclosure framework in each jurisdiction. In conclusion, ADS indicated the requisite for the conflicted parties to declare and obtain approval from the minority shareholders however with unclear procedure and minimal threshold.
 
Keywords: ASEAN, disclosure, minority shareholders, related party transaction.
 

 
PROTECTION OF CHILDREN BEYOND CONTROL IN THE IR 4.0 ERA: THE ROLE OF INTERNATIONAL CONVENTIONS  
1Shariffah Nuridah Aishah Syed Nong, Aminuddin Mustaffa, Nazli  Ismail,  Kamaliah Salleh, M. Naziree Yusof & M. Badrol Awang 
Faculty of Law and International Relations, Universiti Sultan Zainal Abidin, Gong Badak Campus, Kuala Nerus, Terengganu, Malaysia 
1Corresponding author: aishah@unisza.edu.my
 
 
ABSTRACT 
 
The Fourth Industrial Revolution (IR 4.0) has undeniably affected the way of life of people, including children. The rapid development of the internet and digital technology coupled with unlimited, easy, and fast access make children highly susceptible to harm arising from the use of social media, films, or games. This situation may expose children who are beyond control to immense threats due to poor relationships with their parents and family members. The beyond control children may be found anywhere. They are the children who frequently disobey their parents’ orders and are notorious as “status offenders” at the international level. Despite the non-criminal nature of their misbehaviour, children who are beyond control are often treated like criminals through court proceedings and detention orders. Meanwhile, numerous international conventions and guidelines have been signed including the United Nations Convention on the Rights of the Child to protect the welfare of all children. However, to what extent do these conventions protect the children who are beyond control? What are the principles applicable to these children, and how are they protected? Thus, this study was done to analyse the extent of protection provided by international conventions for the rights of children who are beyond control and to suggest suitable programmes for the implementation of the international principles in the IR 4.0 era. This qualitative study employed the library research method for data collection. It analysed numerous documents including international conventions, statutes, books, journals, conference proceedings, and reports. This study found that the international conventions provide protection to the children who are beyond control through several principles including the best interest of the child, family and government responsibilities, institutional placement, prevention of delinquency, and diversion. These principles may be applied through diversionary programmes including counselling, family group conference, family and school programme, and mentoring programme.
 
Keywords: status offence, children beyond control, industrial revolution 4.0, international conventions 

 
PREVENTIVE DETENTION OF CHILDREN UNDER MALAYSIAN LAWS: A CASE FOR REFORM
1Aminuddin Mustaffa, 2Mohd Badrol Awang , 3Nazli Ismail Nawang &  4Yusramizza Md Isa @ Yusuff
1-3Faculty of Law & International Relations, Universiti Zultan Zainal Abidin, Kuala Terengganu, Malaysia
4School of Law, Universiti Utara Malaysia, Malaysia
Corresoponding author: aminuddinm@unisza.edu.my
 
 
ABSTRACT
 
Preventive detention refers to the incarceration of an individual who has not yet been convicted, to prevent him from causing harm or endangering the community in some unspecified way. It can be seen as the deprivation of an individual’s liberty based on the belief that he may be a danger to others. The issue of preventive detention of children is very controversial and has attracted debate among various legal scholars. In Malaysia, provisions contained in specific statutes that aim to prevent terrorism or threats to national security have been invoked to justify the preventive detention of children. The practice and application of these statutory provisions on children have been subjected to various criticism. This paper aims to analyze current Malaysian laws pertaining to the preventive detention of children. It encompasses qualitative research of doctrinal and comparative nature. It will critically analyze legal issues in this area with reference to international standards and practices of other legal systems. The study concludes that the legal reform of the current Malaysian legal framework on this aspect is urgently needed to protect the rights and interests of children during the juvenile justice processes. Therefore, the study provides recommendations towards the improvement of the existing laws and policies on the preventive detention of children.
 
Keywords: Children, preventive detention, criminal proceedings
 


REASSESSING THE ROLES OF THE YANG DI-PERTUAN AGONG AND THE RULERS IN THE MAKING OF INTERNATIONAL TREATIES
Ahmad Nasyran Azrae
School of Law, College of Law, Government and International Studies, Universiti Utara Malaysia, Kedah, Malaysia
Corresoponding author: nasyran@uum.edu.my
 
 
ABSTRACT
 
Malaysia continuously negotiates, signs and ratifies international treaties to foster closer relationship with its counterparts. The Federal Constitution of Malaysia provides no direct provision in granting treaty-making capacity to a specific person(s) or institution(s). However, it may be deduced from the available provisions that such power is exercisbale by the executive arm of the Federal Government. By definition, the executive includes the Yang di-Pertuan Agong, which is elected among the Malay Rulers by the Conference of Rulers. This paper reassesses the roles and functions of the Yang di-Pertuan Agong and the Rulers in the making of international treaties. The study is carried out using library based research method that assesses the provisions of the Federal Constitution, local case(s) and international conventions, in particular the Vienna Convention on the Law of Treaties 1969. The paper will delve into the available legal documents to explain the functions of the Yang di-Pertuan Agong and the Rulers under the Federal Constitution and accordingly reassess the legal position of the the Yang di-Pertuan Agong and the Rulers in the making of international treaties. The finding of this paper will show that, in practice, the Yang di-Pertuan Agong and the Rulers hve no the executive power to conclude and sign international treaties. Nonetheless, the Federal Constitution does confer certain limited powers on the Yang di-Pertuan Agong and the Rulers that may indirectly influence the making of international treaties. These roles are normally consultative in nature.

Keywords:treaty-making; executive authority; federal constitution; international law


 
DIGITAL ACCOUNTS AFTER DEATH: A CASE STUDY IN IRAN LAW
1Abbas Mirshekari, 2Ramin Ghasemi & 3Alireza Fattahi
1 Department of Private Law, University of Tehran, Tehran, Iran
2Tehran University of Science and Culture, Iran
3University of Judicial Sciences and Administrative Services, Tehran, Iran
1Corresponding author: mirshekariabbas1@ut.ac.ir
 
 
 
ABSTRACT
In recent times, cyberspace is being widely used so that everyone has a digital account. It naturally entails its own legal issues. Undoubtedly, one of the main issues is that what fate awaits the account and its content upon the account holder’s death? This issue has been neglected not only by the primary creators of digital accounts but also by many legal systems in the world, including Iran. To answer this question, we first need to distinguish between the account and the information contained therein. The account belongs to the company that creates it and allows the user to use it only. Hence, following the death of the account holder, the account will be lost but the information will remain because it was created by him/her and thus belongs to him/her. However, does this mean that the information will be inherited by the user’s heirs after his/her death? Can the user exercise his/her right to transfer account content to a devisee through a testament? Comparing digital information with corporeal property, some commentators believe that the property will be inherited like corporeal property. This is a wrong deduction because the corporeal property can disclose the privacy of the owner and third parties less than the one in cyberspace. This paper aims to show what happens to a digital account after its user passes away and examine the subject using the content analysis method in various legal systems in the world, especially in Iran as a case study. The required information is collected from law books, articles, doctrines, case laws, and relevant laws and regulations of different countries. To protect the privacy interests of the deceased and others, it is concluded that the financially valuable information published by the account holder before his/her death can be transferred to successors. As a rule, the information that may violate privacy by divulging should be removed. However, given that this information may be a valuable source in the future to know about the present, legislators are suggested to make digital information, which may no longer lead to the invasion of the decedent’s privacy, available to the public after a long time.
 
Keyword: Privacy, Property, Inheritance, Testament, Information.
 

 
REGULATING ARTIFICIAL INTELLIGENCE IN MALAYSIA: THE TWO-TIER APPROACH
Nazura Abdul Manap & 1Azrol Abdullah
Faculty of Law, Universiti Kebangsaan Malaysia, Malaysia
1Corresponding author: azrolabdullah@gmail.com
 
 
ABSTRACT
 
Artificial Intelligence (AI) has been developed under the field of computer science for more than 50 years. AI somehow only gains its prominence in the recent millennia when the necessary tools to test the hypothesis on nature of thought became available. Unfortunately, the absence of legal regulation on AI has caused AI to exist in a regulatory vacuum and nature abhors vacuum. The law is at the state of confusion about who shall be blameworthy for the damage caused by AI. The prevalence of this problem triggers for the expatiation of this review article in defining the scope of AI that must be regulated. The objective of this article is to suggest that AI with certain capabilities must be placed in the legal realm. This article will first begin by highlighting the problems associated with AI before directing the focus of the discussion to the various reasons that justify for AI to be regulated.  This article will then explore the various approaches which can be adopted by government in regulating AI. These approaches can be a workable formula to procure the two-tier methods in regulating AI in Malaysia. The methodology devised for this article is based on doctrinal research where most of the materials are derived from text books, online resources and established academic databases. The findings made in this article suggest that AI must be regulated independently from the existing legal framework. Reason being, AI capabilities are unique in its own sense and therefore cannot be treated like other previous technologies. The outcome of this article will also able to contribute on issues relating to the legal liability of AI in Malaysia.
 
Keywords:  AI, Artificial Intelligence, liability, regulating AI, risks.
 

 
REVIEWING INTERNATIONAL PATENT POLICY ON BIOTECHNOLOGICAL INVENTIONS AND THE ADEQUACY OF EQUITABLE BENEFIT SHARING PRINCIPLE
Nurul Barizah
Department of International Law, Faculty of Law Universitas Airlangga, Indonesia
Corresoponding author: nurul.barizah@fh.unair.ac.id
 
 
ABSTRACT
 
The purpose of this study is to review international patent policy related to biotechnological inventions, particularly from the Venetian Patent Law to the TRIPs Agreement. It closely examines whether such inventions fulfill the patentability thresholds and analyses the reason why such patents are regarded as having the potential to cause facility misappropriation of biodiversity, which is considered unfair. The most important part of this study is the adequacy analysis of the principles of equitable benefit sharing of the Convention on Biodiversity (CBD), including disclosure requirements and prior informed consent (PIC), to prevent misappropriation of biological resources in this era of fourth industrial revolution. This study is based on normative legal research method and uses primary and secondary legal resources. The analysis conducted for this study employed several approaches, which are:  statute, conceptual, and historical approaches. This study found that patent protection for biotechnological inventions has received justification since the Paris Convention. However, the current international patent policy has a potential to facilitate misappropriation of biodiversity and it is regarded as unfair. On the other hand, equitable benefit sharing principle is still inadequate in dealing with such misappropriation. It advises the requirement of mandatory disclosure of origin to be regulated under national law as a legal basis for implementing equitable benefit sharing principle.
 
Keywords: Patent Policy, Venetian Patent, TRIPs Agreement, Biotechnological Inventions, Equitable Benefit Sharing 
 

 
THE ROLE OF INTERNATIONAL COMMERCIAL ARBITRATION IN ENHANCING FOREIGN DIRECT INVESTMENT: LESSONS FOR ALGERIA
Takyeddine Hathout, Rohana Abdul Rahman & Mohd Zakhiri Md. Nor
School of Law, College of Law, Government and International Studies, Universiti Utara Malaysia, Kedah, Malaysia
Corresponding authortakyeddineh@gmail.com
 
 
ABSTRACT
 
Following the upsurge and development in the globalized and emerging economies, commercial misunderstanding and disputes transcending national borders may also be on the rise. Such disputes can hamper the economic activities and operation within those emerging economies, in particular those activities related to the foreign direct investment.  National legal mechanism may not be attractive to international investors. Instead, international commercial arbitration (ICA) could be a preferred choice by foreign investors through which contractual disputes can be resolved via independent forum because it helps to foster market efficiency, facilitate foreign direct investment and protect the interest of foreign investors. To offer insights on this issue theoretically and empirically, this paper presents a logic-based and empirically based conceptual discussion to investigate the influence of ICA on FDI, in particular its application in the context of Algeria and the importance of domestic courts’ execution of arbitral awards. The paper finds that ICA is indispensable to contractual conflict resolution and can consequently assists FDI inflows into the country that entrenches it. Algeria may increase FDI inflows by strengthening the legal framework for arbitration through the enhancement of national laws relating to ICA and guaranteeing their effective execution and enforcement by local judicial system.
 
Keywords: International commercial Arbitration, Foreign Direct Investment, Algeria.
 

UUM Journal of Legal Studies
College of Law, Government and International Studies
06010 UUM Sintok, Kedah Darul Aman, Malaysia.

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