Universiti Putra Malaysia
Download Latest Complete Journal - JSSH Vol. 22 (S) Jan. 2014
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1
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(Downloads: 34)
Abstract (Viewed: 4)The Malaysian government has identified innovation as the main economic driver in the transition to a high income nation in 2020. In Malaysia, the public universities and public research institutes have been instrumental in the creation of intellectual property for the country. This paper begins with a foray into the rise of academic patenting in Malaysia by looking at patent statistics filed by academic institutions and government research institutes. It then examines two national policy instruments that have been formulated by the government to encourage technology transfer to the industry i.e. the Government Circular on the Management of Intellectual Property owned by the Government and the Distribution of Royalties 1999and Intellectual Property Commercialisation Policy for Research and Development (R&D) Projects Funded by the Government of Malaysia. To examine the wisdom of these two policy instruments, their provisions are compared to the US Bayh-Dole Act 1980. The paper continues to examine some of the key US court decisions on the interpretation of the Bayh-Dole Act. Finally, the paper explores the position of institutional intellectual property polices in determining IP ownership disputes between the university employer and the academic employee. For this purpose, a comparable Australian case in which a university IP policy was scrutinized is discussed. This is done in order to have a better understanding of the legal challenges that might face any claims of IP ownership by academic institutions. The paper ends by suggesting that academic institutions in Malaysia will continue to play a big role in churning intellectual property for the country if the current policy stand is to be maintained.Intellectual property policy, academic patenting, commercialization, IP management
2
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(Downloads: 18)
Abstract (Viewed: 3)Academic entrepreneurship involves the entrance of academic scientists into commercial ventures and activities. The basis of any relationship founded upon commerce is rooted in the desire of both parties involved in the exchange to benefit from the transaction. Shariah law establishes guidelines and principles to be applied to commercial transactions in order to ensure that transactions are compliant with Islamic morals and teachings. Focusing upon the role of contemporary money in commercial transactions, the present article distinguishes between the Islamic economy depicted by Shariah and the contemporary economy, with particular emphasis upon the function and nature of contemporary fiat money-based currencies. The use of contemporary moneys in contemporary domestic and international commercial transactions is considered in light of Islamic prohibitions on gharar, or risk and uncertainty, with particular emphasis on the effects of inflation and international currency exchange ratio fluctuation on the value function of contemporary moneys. In conclusion, policy implications and recommendations concerning commercial exchanges arising from academic entrepreneurship are considered in light of seeking to minimize, if not eliminate, risks arising due to the nature of the moneys utilized in contemporary commercial exchanges. Academic entrepreneurship, commercial exchanges, fiat money, gharar, muamalat
3
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(Downloads: 13)
Abstract (Viewed: 1)The issue of joint ownership of patents is vital in relation to university entrepreneurship and startups. Since the invention, which is the subject of commercial exploitation is likely to result from a collaborative effort or joint venture with a third party, there is likelihood that any patents issued from such collaborative efforts will be jointly owned. The parties involved in such ventures may logically believe that joint ownership means that the parties will jointly control the patents and share the profits from the joint venture corresponding to contributions – or at least equally. However, in the absence of any agreement relating to the above matter, the default rules as laid down in statutes and the case law will apply. The default rules relating to the rights of joint owners of patents vary from country to country, but it has long been recognised by the courts that “joint owners are at the mercy of each other”. In an ideal world, co-owners would have arrived at an amicable agreement regarding their respective rights, interests and duties in their joint patent even before the patent is granted or obtained. However, this is not so in the real world; it is not inconceivable that parties involved in applying jointly for patents would initially be more concerned with matters directly related to the grant of the patent. They may not be aware of or appreciate the features and incidents connected with joint ownership under the default rules and, therefore, would initially not realise the importance of the need to make contractual provisions regulating the rights and relationship between themselves. This paper illustrates the default rules relating to the rights of joint owners of patents in Malaysia, the United Kingdom and the United States. Where relevant, the default positions in other countries will also be referred to. This paper aims to show that the default rules may give rise to disastrous consequences, and concludes by stressing the importance of a carefully thought-out ownership agreement, in order to avoid the various pitfalls arising from the statutory default rules.Patents, joint-ownership, co-owners, default rules, assignment, sharing of profits, license, suits against infringers
4
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(Downloads: 18)
Abstract (Viewed: 2)Competition law has become the latest hype in Malaysia since the enforcement of the Malaysian Competition Act 2010 in January 2012. However, this is nothing new, as competition regulation in the communications industry has been around since 1999 under the Communications and Multimedia Act 1998. Competition law involves the promotion or maintenance of a competitive market, which has various objectives and benefits. This paper examines the definition of competition, communications and convergence, and how competition law is affected by the converging communications industry. Competition law, communications, convergence, Communications and Multimedia Act
5
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(Downloads: 8)
Abstract (Viewed: 1)In Malaysia, entrepreneurship education in higher learning education is not new. The government has taken great efforts to transform the country’s economy into a knowledge-based one and entrepreneurs have been identified as one of the key elements to the development of the knowledge economy. Lots of funds have been allocated by the government to propagate the importance of graduates to become entrepreneurs and less dependent on employers. For the law graduates in Malaysia, the job opportunities are multi structured whereby they could either be in the judiciary, corporate and banking sectors or conduct private practice. In most circumstances, law graduates will be attached to private practices and this eventually will lead to most of them opening their own legal firms. Despite the l nature of legal firms, lawyers can not avoid the standard business practices such as preparing cash flow reports, the business and succession plans and audited account reports. There are also many lawyers who set up businesses of different natures rather than legal, such as construction and trading companies. As such, it is highly perceived that business skills are also important to law undergraduates in preparing them for life after graduation. One of the ways to do this is through entrepreneurship education. This paper intends to discuss the perception and reception of law students on entrepreneurship education/skills. A quantitative research methodology is adopted to identify the level of interest and/or willingness of law undergraduates at the Faculty of Laws, International Islamic University Malaysia to learn entrepreneurial skills and to be involved in business once they graduate.Entrepreneurship education, entrepreneurial skills, law students, Malaysian Higher Learning Institution
6
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(Downloads: 11)
Abstract (Viewed: 3)Employers are said to be vicariously liable for the torts of their employees which are committed during the course of employment. It is critical that business owners correctly determine whether the individuals providing services are employees or independent contractors. Employers or ‘masters’ will only be liable for the torts of their employees or ‘servants’ as they are called in law. They will not usually be liable for the torts of their independent contractors (subject to some exceptions). It is, therefore, necessary to establish the status of the person who committed the wrongful act. The task of the court is to interpret the contract of employment. In order to make such a distinction, the courts have adopted certain tests. However, the courts have been unable to formulate a concise definition of the terms ‘employee’ and ‘independent contractor’ that will furnish an accurate test to be applied in determining whether one is acting for another as servant or as an independent contractor. In Malaysia, the courts generally favour the control test. While the control test may have been persuasive in the past, in modern industrial society, with its increasingly sophisticated division of labour, the test is not always effective. In many cases employees may have technical skills and knowledge not shared by their employers. The purpose of this article is to examine these tests and the problems posed by the tests used by the Malaysian courts in an attempt to draw a distinction between an employee and an independent contractor in the context of vicarious liability. Contract of employment, course of employment, employers, employees, independent contractors, servants, torts, vicarious liability
7
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(Downloads: 10)
Abstract (Viewed: 3)The volcano mudflow of 2006 in Sidoarjo, East Java was one of the most devastating environmental disasters in Indonesia. Many argue that it was the failure of PT. Lapindo during the drilling process but the verdict of the District Court of South Jakarta decided that it was a natural disaster. Environmental crime provision is stated in The Environmental Management Act 2009 No. 32 but this stipulation does not reduce the number of corporate environmental crimes as there are other factors involved such as enforcement. The protection of people’s environmental human rights is also recognized under The Law of 1999 No. 39 on Human Rights. Regrettably, prosecuting corporate environmental crime from the angle of human rights is at a dead-lock due to the fact that the Indonesian Human Rights Court is only authorized to prosecute genocide crimes and crime against humanity. Nevertheless, the corporate sector should take the responsibility to restore the ecosystem where disasters have occurred. In view of this gap, some primary data, like statutes, regulations and international conventions; also secondary data such as articles, reports and news papers have been obtained from literature study and internet sources and are descriptively and qualitatively analyzed. This article aims to rationalise that the jurisdiction of the Indonesian Human Rights Court should include environmental crime in The Law of 2000 No. 26 in Human Rights Court and provide output for the decision makers in Indonesia to consider that environmental crime is a crime against humanity. Corporate crime, corporate liability, environmental pollution, environmental human rights, Indonesia
8
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(Downloads: 11)
Abstract (Viewed: 1)This paper reviews the mechanisms and the Malaysian government initiatives to support commercialization and technology transfer from universities. To be more precise, this study attempts to demarcate the role of the Malaysian government by examining the initiatives for promoting commercialization of university research. Commercialization is still new in the Malaysian environment and undoubtedly requires a lot of support from the government to transform the Malaysian universities as centres for generating revenue. Commercialization has a positive impact on economic development and facilitates the exchange of knowledge with industries as well as the entrepreneurs. The main objective of this paper is to study whether the Malaysian government is aware of and supports this process by diverting resources from research to commercialization. The policy implications and suggestions for further research are outlined in the conclusion to this paper. Government initiatives, technology transfer, commercialization of Malaysian university research, promoting university inventions
9
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(Downloads: 15)
Abstract (Viewed: 4)Trafficking in persons is a major concern for global nations. The technology, growth, and usage of information and communication technologies (ICTs) have been accompanied by an increase in exploitation and abuse of technology for criminal activities. With regards to cyberspace, the Internet is increasingly used as a tool and medium by transnational organized crime. Trafficking in women is an obvious form of organized crime that has been affected by the globalised revolution in ICT. This illegal trafficking is not exclusive to sexual exploitation with respect to women or child trafficking, but also covers indentured servitude and child labour. This new form of crime violates fundamental and basic human rights and freedom, and transcends national boundaries and territories to negatively impact on numerous countries across the world. It is estimated that over 900,000 people are being trafficked every year1. This paper seeks to discuss, address and analyze the impact of Information Communication Technologies (ICTs) on trafficking in women for sexual exploitation. Such trafficking is a major criminal activity and a blatant evil that should be effectively tackled on all levels. An analysis of the existing legislative and regulatory framework and their efficiency in the Asian region to combat this form of cross-border organized crime was made and the difference between trafficking and smuggling as stated in the Anti-Trafficking of Persons Act 2007in Malaysia was discussed.The methodology for this research is qualitative research based on case-study and secondary data collected from government agencies. The paper concludes by discussing the steps that should be taken to protect human rights and minimize the risk of using ICTs in illegal criminal activities, especially with respect to trafficking in persons. Trafficking of women, Information Communication Technologies, Abuse of technology
10
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(Downloads: 13)
Abstract (Viewed: 3)Corporate insolvency law aims to provide instruments of corporate survival or rescue. The revival of companies on the brink of economic collapse may involve rescue procedures that go beyond the normal managerial responses to corporations in distress and they may operate through both informal mechanisms and formal legal procedures. Most importantly only viable companies and businesses deserve to be rescued. There are various types of rescue actions to turnaround corporate fortunes at a time of corporate crisis. This could be in the form of a broad range of restructuring activities. This article examines the informal rescue practices and mechanisms available to troubled companies in the UK and Malaysia. Some common rescue mechanisms that are discussed include sell-offs, management buy-out (MBO), debt for equity conversion, retrenchment, redundancy as well as ‘workout’ arrangements to restructure debts owed by companies to banks or creditors. Corporate rehabilitation, informal rescue mechanisms, restructuring, turnaround, workout
11
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(Downloads: 10)
Abstract (Viewed: 2)Contemporarily, the rights of indigenous peoples are considered to include the right to free, prior and informed consent (FPIC), perceived as mandating consultations and negotiations between indigenous peoples and interested parties, followed by approval from the indigenous communities affected prior to the beginning of initiatives, whether social, political or developmental in nature. The current article considers the situation of the Orang Asli in Malaysia against the growing support for FPIC within international, regional and domestic legal regimes. This paper will be structured as follows: firstly, the exercise of the right to FPIC is defined in the context of the rights of indigenous peoples. Secondly, existing international, regional and domestic legal frameworks that promote FPIC for indigenous peoples are examined. Thirdly, the approach taken by the Malaysian government towards the Orang Asli in relation to FPIC and development projects is surveyed. Lastly, recommendations are made in light of the challenges faced by interested parties when indigenous peoples desire to exercise the right to FPIC. Free, prior and informed consent, indigenous peoples, Orang Asli, land development
12
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(Downloads: 12)
Abstract (Viewed: 2)Muslim Arbitrators are needed to settle the dispute in Islamic Finance. The process Model in Shariah Arbitration may differ from the tahkim and conventional arbitration which is based totally on the UNCITRAL Arbitration Model and Rules. However, to be in line with internationality of the principles enunciated in UNCITRAL, there is no requirement under the it stating that an arbitrator should not be or must be a Muslim . Based on this comprehension, this paper attempts to propose that the appointment of an arbitrator in Islamic finance should be a Muslim. The paper ends with conclusion and some recommendations for future embarcation on the issue. Shariah arbitration, Islamic finance, arbitrator, appointment, muslim
13
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(Downloads: 5)
Abstract (Viewed: 2)The present paper examines the importance of policy in enabling human resources, following the completion of university-level education, to be involved in the Islamic sector and academic entrepreneurship in syariah and legal studies in Malaysia . This paper argues that the human resources in the Islamic sector in Malaysia and academic entrepreneurship in syariah and legal studies are dependent on students from Islamic religious schools. Islamic religious secondary schools are usually administered either by the federal government,state governments or private institutions. According to the constitutional division of powers, education is a federal matter. Therefore, any educational institutions fallunder the responsibility of the federal government, irrespective of the means of their establishment. However, state-administered Islamic religious secondary schools are considered to fall outside the purview of the federal government due to the fact that such institutions are administered by the state governments. This perceived conflict between state and federal authority in reading the Malaysian Constitution has resulted inthe state Islamic religious secondary schools being virtually ignored by the federal government. This paper demonstrates the effects of the neglect of the Malaysian federal government regarding state Islamic religious secondary schoolsin relation to human resources in the Islamic sector and academic entrepreneurship atMalaysian higher education institutions, especially in the area of syariah and legal studies. The current scenario in the Malaysian Muslim society will be taken into account in portraying the current need for students and graduates of Islamic studies to fulfill vacancies in the job market. The paper concludes with some suggestions to improve the development and management of humanresources in the Islamic sector and academic entrepreneurship in the area of syariah and legal studies in Malaysia. Academic entrepreneurship, human resource, legal studies, state Islamic religious schools, syariah
14
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(Downloads: 9)
Abstract (Viewed: 1)Paperless transaction offers various comforts that have made the world borderless. However, the finalization of international trade needs the goods to be delivered to certain destinations. Although carriage of goods by air guarantees less time, 90% of international trades are still carried out through the oceans. The strategic location of Indonesia in a cross-road position (posisi silang), that is between two land-masses of the world, Australia and Asia and between two great waters of the Indian and the Pacific Oceans has made Indonesia a centre of international trade routes. This way, the existance of a well-developed and efficiently run port sector is crucial. However, from the user’s perspective, Indonesia does not have a port system which performs well enough to compete with the demand of international markets. Previous research has showed that the lack of competitiveness in Indonesia’s ports is underpinned by the existence of too many insufficient and inefficient ports, which are rooted in limited private sector participation and competition in the port system. This is mostly due to the deficiencies in the legal as well as regulatory environments in the port management system, which leads to tight competition both within and between ports. This research seeks to analyse the Indonesian legal framework concerning the Ports Management System. While the current Indonesian Act 17/2008 on Shipping has provided the foundation for port system reform, much remains to be done. One of the implementation strategies of the National Ports Master Plan ((NPMP) envisaged within the draft of NPMP is integrated port planning. The draft further divides strategic ports into six economic corridors; and since this research focuses in ports located along the Malacca Straits, only the Sumatran economic corridor will be considered. This paper proposes the integrated planning model in the ports located in the Sumatran economic corridor. Competitiveness, efficiency, intergrated, management, malacca straits, port performance
15
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(Downloads: 8)
Abstract (Viewed: 2)Lacking in terms of personal lex mercatoria governing the cross border transactions in Islamic finance may lead to uncertainty in trade financing. Global Islamic finance is faced with many unresolved issues that demand urgent attention from all parties involved. One of the pressing issues is the lack of standardisation to face globalisation within the industry. An attempt is made herein to propose a few options in having legal consensus towards the creation of lex mercatoria in Islamic finance. This paper proposes that, as the global market continues to increase and as interest in Islamic finance grows around the world, there is a compelling need to make future developments of the industry smoother by having its own treaties, conventions and model laws which form the basic financial instruments in order to avoid possible conflict and gain public confidence. Globalisation, international convention, international treaties, Islamic finance, lex situs, lex contractus
16
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(Downloads: 18)
Abstract (Viewed: 6)Among the Asian countries, the importation of migrant workers in Malaysia is a necessity when the country is facing an acute shortage of labour force in its multi-sectoral development programs. Malaysia desperately needs the migrant workers in order to keep up with sustainable economic development and rapid economic progress in the country. However, the government should be very vigilant and play an active role in employing the optimum number of foreign workers. While their rights and welfare must be taken care of as not to affect the existing political relationship between the sending and receiving countries, the rights of the employers must not be ignored. Migrant workers are always portrayed as victims of abuse, exploitation and harassment by their employers. In reality, employers of the migrant workers deal with bigger responsibilities such as adhering to the rules, regulations and policies laid down by the law. Apart from that, employers of migrant workers also have duties towards the country, society and respective immigrant workers. Employers have to ensure that the productivities of their immigrant workers contribute to the stability of economy and their employment benefit the society. Employers also have to ensure that the rights and welfare of the immigrant workers are well taken care of. In spite of the challenging responsibilities, employers of the migrant workers lack assistance and protection with regards to their rights. This research looks into the protection of employers of migrant workers, the effect and recommendations to improve the relationships of both groups. The focus of this research is on three sectors, namely manufacturing, construction and domestic. Economy, employers, employment, migrant workers
17
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(Downloads: 11)
Abstract (Viewed: 5)The purpose of this paper is to identify and compare the characteristics and rulings of Ijarah contract, the contract of ‘inah and sukuk ijarah. The identification of their characteristics and rulings is a necessity to determine whether these contracts are similar to, or different from one another, and the extent of their compliance with the shariah. Furthermore, if the characteristics of these contracts could be ascertained, the rulings could be extended to the actual contracts in practice. This study analyses the characteristics and rulings of ijarah and ‘inah contracts based on views of Hanafis, Malikis, Shafi’is and Hanbalis. The findings are then compared with the characteristics of sukuk ijarah as standardized by AAOIFI. The analysis is also focused on the terms and conditions of SenaiDesaru Express Berhad (SDEB) as an example of sukuk ijarah practice. The result suggests that sukuk ijarah as defined by AAOIFI has some differences from the original ijarah contract. Sukuk ijarah also has a few characteristics of ijarah contract. To certain extent, Sukuk ijarah has similarities with the ‘inah contract. This study suggests that the terms represented in a particular contract may not truly represent the real characteristics of an original shariah contract. A particular contract may contain characteristics belong to different form of contracts. It may even be undesirably similar to the characteristics of the controversial contract of ‘inah. Bay’inah, contract, ijarah, sukuk
18
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(Downloads: 10)
Abstract (Viewed: 3)Along with the evolution in business and commerce, types and techniques of mergers and acquisitions (M&A) especially in the form of hostile takeovers are developed and diversified to meet the varying interests of acquiring companies. At the same time, the growing concerns emerge where a number of large conglomerates begin to conduct hostile takeovers with the objective of monopolizing certain industries and obtaining control on the market. This is in adverse to the normal operation of overall market order which emphasis is on fair competition. Consequently, the target companies may be responding by raising monopoly issues if they become subject to a threat of hostile takeover. This Article will review hostile takeovers regulations in China and Malaysia, as the emerging markets where takeovers’ regulations are relatively still at their infancy. The main focus of the discussion is to look into the extent of which the target companies in China and Malaysia may rely on anti-monopoly rules as a response in defense instead of relying on conventional techniques. A brief appraisal is made to US and UK anti-monopoly legislations. Both jurisdictions had experienced intense Mergers and Acquisitions since 1950s, because then they had among the most modernized companies. Hostile takeovers, anti-monopoly, China, Malaysia, US, UK

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