Learning Lab-Law Archives - Schlobal

Conflict of Laws

Qhaiz — Sun, 27 Aug 2023 16:16:03 +0000

Conflict of laws signifies the difference between the laws of two or more jurisdictions that are applicable to a dispute in question. The results of the case depend upon the selection of the law to resolve the dispute. The conflict can be between federal and state laws, among the state laws themselves, or between the laws of different countries.

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Conflict of Laws

The primary question that arises in the situation of conflicting laws is: Which law should be used in resolving the case?

Courts follow a certain process in order to determine the law it would apply in deciding a case. In legal parlance, this process is known as characterization or classification. Courts usually have two choices while determining which law to apply in the case of a conflict, which are:

Lex fori: When the conflict in laws pertains to a procedural matter, courts mostly go by lex fori or the law of the forum, and

Lex loci: When the conflict in laws pertains to a substantive matter, courts mostly go by lex loci or the law of the place where the cause of action arose.

Courts have different rules from those of state courts. That’s because the jurisdiction of courts is limited by the constitution. Courts must follow a complex set of rules for determining the right law to apply in a case of conflicting laws.

Legal professionals and scholars in civil law refer to the conflict of laws as private international law. It is applied to legal disputes that have a foreign element in them.

If you look at business contracts, you’ll find that most of them contain a clause in the miscellaneous section, which either excludes the principles of conflict of laws or specify the conflict of laws principles of a certain state to govern the contract. This provision is usually made to interpret the agreement outside of the state where the cause of action has occurred.

For example, let’s say you have made an agreement with a company in California. This may give rise to a cause of action in California. However, you want to apply the laws of Texas to your contract and hence clearly specify that the contract would be governed by the laws of Texas.

Now, most of the states have a law saying that the state where the cause of action occurs will have a jurisdiction over the dispute. Due to this, your contract may be governed by the laws of California despite your express intention to the contrary. To avoid such unintended hardship, contracts usually contain an exclusion clause to expressly nullify the provisions of conflict of laws.

The conflict of laws is based upon the principle of choosing the most rational law to apply in a given case so as to give a fair result. It is known by different names, but none of them are accurate.

In a federal system like the United States where the conflicts are mainly between different state laws, the term “conflict of laws” is more popular since these rules are rarely applied to international issues. However, it’s still a general term that also applies to international disputes. Many criticize the term as being misleading since the object of these rules is to resolve the conflicts between different laws rather than the conflict itself.

If the case contains no foreign element, the conflict of laws is irrelevant. If an Englishman and woman who are both British citizens, domiciled and resident in England, go through a ceremony of marriage in England and later, when they are both still domiciled and resident here, the wife petitions an English court for a divorce, no foreign element is involved. No problem of jurisdiction arises and any questions about the validity of the marriage or the grounds upon which a divorce can be granted, as well as any procedural or evidential matters, are all governed by English law alone. The same is true if two Englishmen in England contract here for the sale and purchase of goods to be delivered from Oxford to Cambridge with payment in sterling in London, and the seller later sues the buyer and serves him with a writ in England.

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The Law of Evidence

Qhaiz — Thu, 24 Aug 2023 03:42:25 +0000

What exactly is the meaning of the word “evidence”? The term “evidence” comes from the Latin word “evidens evidere,” which means “to show clearly; to make clear, certain, or to prove.” A set of regulations for determining disputed facts in judicial investigations is known as the “Law of Evidence.” A system of rules and guidelines known as the “Law of Evidence” governs this process of gathering the facts, which are the fundamental components of a right or responsibility and are the main and possibly most challenging job of the court. A set of regulations for determining disputed facts in judicial investigations is known as the “Law of Evidence.” The “Law of Evidence” governs this system of gathering facts, which are the fundamental components of a right or liability and are the main and possibly most challenging role of the Court. In a case, the court typically deals with three matters− first, determining whether or not a specific event actually occurred; second, applying the procedural law in the case of the specified event; and third, determining the parties’ rights and obligations by applying the fundamental law to the relevant matter.

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The Law of Evidence

From Traditional Rules to Modern Principles

By Dr Sanjeetha Sidhu

A set of regulations for determining disputed facts in judicial investigations is known as the “Law of Evidence.” A system of rules and guidelines known as the “Law of Evidence” governs this process of gathering the facts, which are the fundamental components of a right or responsibility and are the main and possibly most challenging job of the court. A set of regulations for determining disputed facts in judicial investigations is known as the “Law of Evidence.” The “Law of Evidence” governs this system of gathering facts, which are the fundamental components of a right or liability and are the main and possibly most challenging role of the Court.

In a case, the court typically deals with three matters− first, determining whether or not a specific event actually occurred; second, applying the procedural law in the case of the specified event; and third, determining the parties’ rights and obligations by applying the fundamental law to the relevant matter.

The “key” that a court requires to make a decision is evidence. There can be no proof if there is no evidence. Information is presented to the court through evidence. A certain account of the events must be accepted by the court in order to establish facts through the presenting of evidence. Of course, one can pursue the truth even if it violates the parties’ constitutional rights. Evidence gathered illegally, however, can not support the upholding of justice in the future. Therefore, in order to accomplish quick, equitable, and cost−effective justice, the proof process should be governed by evidentiary norms and standards.

The law of evidence therefore legally means, exclusive of mere arguments, which tend to prove or disapprove any matter of fact the truth of which is submitted to judicial investigation.

The legal concept of evidence is neither static nor universal.

Medieval understandings of evidence in the age of trial by ordeal would be quite alien to modern sensibilities (Ho 2003–2004) and there is no approach to evidence and proof that is shared by all legal systems of the world today. Even within Western legal traditions, there are significant differences between Anglo-American law and Continental European law (see Damaška 1973, 1975, 1992, 1994, 1997). This entry focuses on the modern concept of evidence that operates in the legal tradition to which Anglo-American law belongs. It concentrates on evidence in relation to the proof of factual claims in law.

It may seem obvious that there must be a legal concept of evidence that is distinguishable from the ordinary concept of evidence. After all, there are, in law, many special rules on what can or cannot be introduced as evidence in court, on how evidence is to be presented and the uses to which it may be put, on the strength or sufficiency of evidence needed to establish proof and so forth. But the law remains silent on some crucial matters. In resolving the factual disputes before the court, the jury, or at a bench trial, the judge has to rely on extra-legal principles. There have been academic attempts at systematic analysis of the operation of these principles in legal fact-finding (Wigmore 1937; Anderson, Schum, and Twining 2009). These principles, so it is claimed, are of a general nature. On the basis that the logic in “drawing inferences from evidence to test hypotheses and justify conclusions” is governed by the same principles across different disciplines (Twining and Hampsher-Monk 2003: 4), ambitious projects have been undertaken to develop a cross-disciplinary framework for the analysis of evidence (Schum 1994) and to construct an interdisciplinary “integrated science of evidence” (Dawid, Twining, and Vasilaki 2011; cf. Tillers 2008).

Stephen (1872: 3–4, 6–7) long ago noted that legal usage of the term “evidence” is ambiguous. It sometimes refers to that which is adduced by a party at the trial as a means of establishing factual claims. (“Adducing evidence” is the legal term for presenting or producing evidence in court for the purpose of establishing proof.) This meaning of evidence is reflected in the definitional section of the Indian Evidence Act (Stephen 1872: 149). When lawyers use the term “evidence” in this way, they have in mind what epistemologists would think of as “objects of sensory evidence” (Haack 2004: 48).

Evidence, in this sense, is divided conventionally into three main categories: oral evidence (the testimony given in court by witnesses), documentary evidence (documents produced for inspection by the court), and “real evidence”; the first two are self-explanatory and the third captures things other than documents such as a knife allegedly used in committing a crime.

One interesting chapter of Law of Evidence is the admissibility of a rape victim’s previous sexual behaviour. Statue provides that such an evidence is only admissible if there is unique similarity between the past behaviour and the current charge. In R v Evans (2012), lewd utterance and preference for a sexual position was said to be unique and thus admissible.

The evidence available does confirm the popularity of this sexual position (The UK’s “favourite sex positions” revealed in new survey). The Independent, 11 February 2015, with 51% of respondents in Wales saying that ‘doggy style’ was their favourite sexual position. Another survey found this position to be the favourite of 57% of respondents in the north of England, Huffington Post.

Further, language such as that allegedly used in Evans also appears to be common, being a standard trope in mainstream pornography. A search of the most popular commercial pornography website, Pornhub, in March 2017, produced 1259 results for ‘f.k me harder’ with many more for ‘harder’, and 6964 videos tagged for the ‘doggy’ position.

In sum, the Evans case does not simply open the ‘floodgates’ but risks a tsumani. Common, everyday sexual activity is at risk of being admitted, with an open invitation to the defence to trawl through a complainant’s sexual history seeking ‘similarities’. It focuses attention on the complainant’s lifestyle and character, rather than on the defendant’s actions at the time of the alleged offence.

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Common Law Reasoning

Qhaiz — Wed, 23 Aug 2023 21:03:14 +0000

Common Law Reasoning is a subject which explores the components of the English legal system and the distinctiveness of the common law tradition, as a legal methodology and characteristics applicable to the civil and criminal justice system. The justice system consists of the civil and criminal justice system. The civil justice system has jurisdiction over civil trials settling legal disputes such as contractual, tortious and family disputes. While the criminal justice system handles the administration of all criminal trials such as murder, rape, theft and fraud.

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Common Law Reasoning

Understanding the Foundation of Judicial Decision-Making

By Shizreen Farina

Malaysian Palace of Justice

Common Law Reasoning is a subject which explores the components of the English legal system and the distinctiveness of the common law tradition, as a legal methodology and characteristics applicable to the civil and criminal justice system.

The justice system consists of the civil and criminal justice system. The civil justice system has jurisdiction over civil trials settling legal disputes such as contractual, tortious and family disputes. While the criminal justice system handles the administration of all criminal trials such as murder, rape, theft and fraud.

Let’s take a closer look at:

The Criminal Justice Process

Criminal justice covers issues on pre-trial, the trial process, sentencing and appeals. Central to the criminal justice system is the presumption of innocence. The accused is presumed to be innocent until proven guilty according to the established rules of law and procedure.

All criminal trials are initiated by the State; and in the context of the English procedure, it is decided by the Crown Prosecution Service on behalf of the State. As such, the power of the State to prosecute the accused needs to be balanced with adequate protection of the accused.

The proper administration of criminal trials is important as it concerns the fundamental human rights of the accused under Article 6 of the European Convention of Human Rights (ECHR) and the rule of law. Therefore, how an accused is convicted or acquitted is crucial to ensure there is no miscarriage of justice that occurs which may cast doubt on the guilt of the accused.

Jury Trials

A jury trial consists of twelve ordinary persons randomly selected to participate in a criminal trial to determine if the accused is guilty of the crime charged. The jury is directed by the judge on matters of law and procedures and the jury then reaches a verdict after they deliberate in private at the end of the trial.

The value of the jury lies with the concept of a trial by one’s own peer, which gives the accused the benefit of being impartially tried by people of his peers as opposed to a single judge. Moreover, jury trials are reserved for serious or indictable offences so as to give the accused the benefit of the doubt.

The outcome of a jury trial is 50/50, which means the likelihood of an acquittal is higher for the accused in comparison to a trial by judge alone.

Problems with the Jury:

While the idea of a trial by one’s own peers is attractive to the accused, there are many concerns and criticisms about the use of juries.

One of the main problems is the high cost affecting the use of taxpayers’ money to run jury trials. In the landmark decision of R v Twomey (2009) EWCA Crim 1035, the cost of the trial was £25 million as a result of suspected jury tampering (where the jurors’ independence is compromised either through bribery or intimidation etc.), hung jury (where the jurors cannot reach a unanimous verdict) and the trial being halted and delayed due to the accused being ill.

A more recent concern about the use of juries is the use of the internet, by jurors, to research the case they are trying which undermines the fairness of the proceedings. Juries are only allowed to consider the evidences presented during trial in order to reach their final verdict. Relying on external unreliable information to reach a verdict is detrimental to the rights of the accused to be tried fairly.

There are also problems of juries failing to understand the facts and reaching a decision which is erroneous. Racism among the jurors is also a concern as there is no way of knowing the real reasons for the conviction due to jury deliberations being kept confidential. Only when there are reports of misconduct by other jurors would we know for certain that misconduct has occurred and this would enable the conviction to be quashed on appeal. If the misconduct is not reported, there is no strong evidence of the wrong-doing and the conviction of the accused stands.

Relevance of Common Law Reasoning

The preservation of justice and preventing miscarriages of justice will always be relevant at any point of time as long as the Rule of Law is respected in the legal system.

These standards of justice are not limited to the English legal system alone to adhere to, but legal systems in every jurisdiction. Therefore, if the use of juries will have an adverse effect on the fairness of the criminal trials, it may make more sense to abolish the institution of the jury altogether as many countries have done, including Malaysia.

Alternatively, more stringent safeguards can be placed to ensure that the integrity of the trial is preserved. The latter approach has been taken by the English legal system to retain the use of juries while introducing safeguards against problems like jury tampering, and introducing specific criminal offences for jurors who breached their duty.

Whether the accused is tried by a judge and jury, or by a single judge, the integrity of the trial must be protected by all means necessary to ensure the confidence of the public is maintained towards the criminal justice system.

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Behind English Property Law

Qhaiz — Wed, 23 Aug 2023 06:35:25 +0000

Property Law encapsulates the creation and protection of property estates and interests over land. Estates in land comprise of permanent and temporary ownerships of estates. Temporary ownership is where owners enjoy possession of their land for a limited time, which is also known as leases. Interest in land also includes property rights given to a third party, who would enjoy certain privileges on the land, via an option to purchase land or mortgages.

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Behind English Property Law

By Puvanal Sri

Property Law encapsulates the creation and protection of property estates and interests over land. Estates in land comprise of permanent and temporary ownerships of estates.

Temporary ownership is where owners enjoy possession of their land for a limited time, which is also known as leases. Interest in land also includes property rights given to a third party, who would enjoy certain privileges on the land, via an option to purchase land or mortgages.

When it comes to the actual ownership of estates in land, more than one person is able to own a piece of land at the same time. The chapter governing the ownership of land by multiple owners is known as co-ownership. Co-ownership is when two or more people enjoy concurrent ownership of a piece of land. Owners may be related to each other or can be total strangers. For example, a property may be owned by siblings, friends, married couples, cohabiting couples, business partners, or even by investors. The current issue concerning this area of law deals with cohabiting couples: when the relationship breaks down, what happens if a cohabitee is sharing a property without having contributed towards the purchase of the said property or without having spoken about any respective ownership in that property? It is crucial to have a brief understanding of the existence of a trust before diving into such a cohabitation. Ownership of property generally involves ownership at law and ownership in equity. Accordingly, ownership of property comprises of ownership of the legal estate and equitable estate. The legal title is subject to a trust of land, which may be held by two or more people for themselves and/or any number of others on the equitable estate. This means that while the legal owner is the owner in equity, the owner in equity may not necessarily be the legal owner. This is a unique position in the UK.

Consequently, if cohabiting partners do not make any declaration as to their entitlement in a property and only one of the partners were to be named on the legal title, the challenge would then be how to determine each partner’s share in that property, especially since there is no statute governing such distribution in the event of a breakdown of a cohabitation. There are currently two methods to assist cohabiting parties in determining their share in such situations. Firstly, the cohabiting couple may expressly declare their beneficial interest in a written document. This is done by complying with the requirements set out in section 53(1)(b) of the Law of Property Act 1925, which is where the couple states how much of a share or interest each partner owns in the property. Once such declaration is made, it will be recorded in the title of the property and registered at the Land Registry. It is this declaration that the courts will refer to in the event the court is required to decide on the share each partner in the relationship is entitled to.

The second method deals with the problem when no written or express declaration is made on the share of each partner, leading to a dispute as to who owns how much of the property. This is because there is no statutory protection afforded to assist the couple in determining the amount of shares each of them will be entitled to when their relationship ends. It becomes more of a challenge for the partner who is not on the legal title, especially if they had spent money and effort in the said property, such as using their savings to renovate the property, spending money on landscaping, or even taking the time to look after the property and children from the relationship. On record, these partners are not registered as owners and therefore have no entitlement to any percentage of a share in the property.

In comparison, couples in a legal marriage do not have to concern themselves with expressly declaring their shares in the property, even in writing. In the event of a relationship breakdown, their shares will be distributed according to the Matrimonial Causes Act 1973. Each spouse has automatic spouse’ matrimonial home rights and will be entitled to a share in the property regardless of whether they had directly contributed towards the purchase of the property or indirectly contributed by maintaining the property and looking after their children’s expenses. This entitlement is not afforded to couples who choose to cohabitate. The only recourse available for cohabiting couples in the UK is to seek the assistance of the courts to determine their shares through a concept known as implied trust. As explained earlier, the ownership of property comprises of legal ownership and equitable ownership. The implied trust concept is where the courts award a certain amount of share in the equitable title to the partner who is not on the legal title of the property. Since the true owner of a property is the equitable owner, the legal owner will then be bound to hold the property on trust on behalf of themselves and their partner. This means that their co-ownership will consist of one legal title owner and two equitable title owners.

Over the years, courts have devised a mechanism to award equitable shares through implied trust, which consists of resulting trust and constructive trust. Constructive trust has become the most popular method for an aggrieved partner to claim a share in a property, and the courts have been fine-tuning the relevant guidelines and tests in effort to achieve justice for these aggrieved partners. Through constructive trust, courts may consider the parties’ whole course of dealings throughout their relationship in order to determine a fair share.

More recently, the decision of the Supreme Court in the case of Jones v Kernott (2011) has resulted in a new controversy as to the court’s application of this consideration. In that case, the Justices agreed that in the event there are no dealings between parties available for consideration, the courts themselves may determine a fair share on behalf of the claimant.

A Cohabitation Rights Bill was introduced in Parliament in 2020, while former Prime Minister David Cameron had proposed it twice. The Cohabitation Rights Bill aims to improve this situation by proposing changes in the law which will allow couples with children, or couples without children who have lived together for two or more years, the right to apply for a financial settlement. However, there have been no developments since.

This may be because there is recognition that it is difficult to replace the courts’ flexible mechanism of awarding a beneficial interest with a statutory scheme, especially in a situation where “one size does not fit all.” At the moment, it may be prudent for parties of a cohabiting relationship to take the time to write and re-write their intentions in black and white, as this will guarantee some form of certainty with regard to their ownership in a property.

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‘Life-Changing’ Public Law

Qhaiz — Tue, 22 Aug 2023 01:01:18 +0000

The first year of a UK Law Degree course is often described as ‘life-changing’. Many interesting “surprises” await those who take that bold first step into reading law. One such surprise comes in the form of Public Law. Public Law is a core subject in the first year of the UK Law Degree programme. It is mandatory not only to read Public Law but to obtain a ‘Pass’ for this subject. Public Law involves the study of a country’s constitutional and administrative laws. In the UK Law Degree context, this entails the study of British constitutional and administrative laws. Terms such as “constitutional” and “administrative” often cloud the mind of the first-year law student, causing an instant disconnect with the subject. Lacking any prior experience or encounters with constitutional and administrative matters, one can quickly and easily descend into disinterest. This read hopes to show that Public Law is not a collection of remote or “alien” concepts of law. Contrarily, it is possibly the most real, relatable and life-changing first-year law subject. To read constitutional and administrative law is to ponder on and understand the fundamental laws and principles on which a country is established and governed. This is rarely done by the average person in their regular day-to-day lives.

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‘Life-Changing’ Public Law

By Jayanthi Diana & Silas Low Eu Jin

Public Law involves the study of a country’s constitutional and administrative laws. In the UK Law Degree context, this entails the study of British constitutional and administrative laws. Terms such as “constitutional” and “administrative” often cloud the mind of the first-year law student, causing an instant disconnect with the subject. Lacking any prior experience or encounters with constitutional and administrative matters, one can quickly and easily descend into disinterest. This read hopes to show that Public Law is not a collection of remote or “alien” concepts of law. Contrarily, it is possibly the most real, relatable and life-changing first-year law subject.

To read constitutional and administrative law is to ponder on and understand the fundamental laws and principles on which a country is established and governed. This is rarely done by the average person in their regular day-to-day lives.

Public Law extends the invitation and opportunity to do so.

Constitutional and administrative laws of a country are usually codified and contained in a single constitutional document. Thus, for instance, to get to know Malaysian constitutional and administrative law, one would study the Federal Constitution of Malaysia, or the ‘Perlembagaan Persekutuan Malaysia’. The Constitution of a country embodies its supreme laws and reflects its identity as a nation. It is also the ultimate legal authority and point of reference. It shapes and dictates the tone of all other laws passed in the country. The Constitution is both the source and regulator of powers held by the State, while also stipulating the fundamental rights, freedoms and civil liberties of citizens. Such is the importance of a constitution that it is bewildering to live as citizens unaware or uninterested in constitutional law.

In the case of the UK, given its long history of monarchical rule, colonization, union between England, Wales, Northern Ireland and Scotland, and its recently terminated membership with the European Union, one would picture an extravagant document of constitution. What may come to mind is the image of a sizeable ancient document with miles of constitutional articles. This should spike the interest of the first-year UK Law Degree student immediately.

Yet, as one will soon discover, no such single constitutional document exists in the UK. Instead, most of the UK’s constitutional laws and materials have been established in the form of statutes, also known as ‘Acts of Parliament’. The UK also adheres to the constitutional doctrines of ‘Rule of Law’ and ‘Parliamentary Supremacy.’

A.V. Dicey, British jurist, constitutional theorist and author of the ‘Introduction to the Study of the Law of Constitution’ (1885), described these as the “twin pillars” on which the British Constitution rests. By these concepts, the British constitution professes supremacy of law and reflects that by holding its law-making institution sovereign. This is also to uphold the notion of democratic rule, since the Parliament is democratically elected in the UK. Judicial decisions referred to as ‘common law’ in the UK, also contribute to its collection of constitutional laws and principles. Customary constitutional norms and political practices, such as the process by which the Prime Minister of a country is appointed to office, also forms part of the uncodified and abstract British Constitution.

But perhaps, most controversially and yet unsurprisingly, the royal powers of the King, most of which have now been passed on to the Prime Minister, are a formidable component of the British Constitution.

One example of these royal powers is the power to claim foreign territories. This is a prerogative of the British monarch from time immemorial, and is presently exercised by the government on behalf of the King.

The Cuban Missile Crisis of 1962 led the British government to allow the United States of America to occupy Diego Garcia, one of the British Indian Ocean Territories held by the UK government through its royal prerogative. The nearby Chagos Islands, also part of the British Indian Ocean Territories was affected. The arrangement between the UK and the USA meant that the native inhabitants of the Chagos Islands too, had to be removed from their native land. Years later, the Home Secretary lifted the prohibition against resettlement on the Chagos Islands. However, having learnt that resettlement of former inhabitants on the Islands would be too costly for the British government and potentially precarious, the British government used its royal prerogative over territories, to issue a ‘Prerogative Order’ in 2004, to banish former inhabitants from the Chagos Islands once and for all, and prohibit them from ever occupying their home island again.

This led to one Mr. Bancoult, former native inhabitant of Chagos Islands, filing a court action against the British government, challenging the exercise of this prerogative power. The challenge was dismissed by a 3-2 majority, by the then highest Court of England, the House of Lords. The court held that the banishing order made pursuant to royal prerogative powers, was not an abuse of governmental power. Lord Bingham affirmed the strength and validity of these powers notwithstanding their impact on the former inhabitants of Chagos Islands. They are after all, “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”, per Dicey.

This decision of R (on application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2008] UKHL 61 was criticized by Mark Elliot as being “pyrrhic public law”. Elliot observed that the courts have an undeniable power and jurisdiction to determine the lawfulness of the exercise of prerogative powers and there was “nothing groundbreaking” about Bancoult’s argument that the prerogative to claim territories did not permit the banishing of entire populations from their native land. Elliot concluded that the majority in Bancoult “interprets English public law as offering a dismally modest check on the Executive’s extra-territorial exercise of prerogative power” and that “one more such victory could utterly undo British courts’ maintenance of the rule of law in colonial affairs.”

As the Bancoult (No. 2) case judgment demonstrates, Public Law plays a very real and important role not just in the life of a first-year law student, but society as a whole.

Reading Public Law awakens, alerts and forces a paradigm shift. It necessitates the kind of awareness and attention that may have seemed irrelevant or inapplicable before. The UK Public Law subject depicts how the features and components of the British Constitution and various constitutional events come together to form a fascinating congruous storyline about the constitution itself. It is a journey of getting to know the unique British Constitution, becoming affected by it and understanding how despite its complex nature, it serves and does not at the same time.

British Public Law is never without its shocking twists and turns and its fair share of paradoxes and wonder. As the many unexpected truths about the British Constitution unfold, the subject comes to life and prompts deep reflection on real-life concerns such as the power of government over citizens, civil liberties and the importance of an independent judiciary.

Soon enough, Public Law will cease to become a hugely theoretical and fictional experience but one that is very present, real and tangible. There is plenty of room for progress in maturity of thought, realization and unforgettable life-changing moments.

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How To Stand Out In The Chambering Pool

Qhaiz — Tue, 29 Mar 2022 11:49:34 +0000

It is compulsory for a law graduate intending to practise in Malaysia to undergo chambering, a practical training of nine months at a law firm. In other words, they will then become a full-fledged lawyer.

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How To Stand Out In The Chambering Pool

It is compulsory for a law graduate intending to practise in Malaysia to undergo chambering, a practical training of nine months at a law firm. Also called a pupillage, chambering pupils practise under the supervision of a senior lawyer and at the end of the term, the pupils will be admitted to the High Court of Malaya as an advocate and solicitor. In other words, they become a full-fledged lawyer.

There is also the possibility of being retained as an associate at the end of the chambering period, which means one less headache when it comes to looking for a job.

If you’re a chambering pupil, here are several tips on how to make a good first impression.

Get to know the people

In most law firms, work is usually done collaboratively and will surely involve a certain amount of interaction between associates and senior members. As such, it makes perfect sense to get to know as many members of the profession as possible, not merely other pupils.

Beyond friendly smiles and small talk, it helps to introduce yourself to them by email as it’s a non-intrusive way to connect. People work better with those that they’re comfortable with and this holds true everywhere, especially in a law firm. Keep your email short and pleasant, making sure to emphasise that you are keen to learn. A little initiative goes a long way!

Questions, questions, questions

Make your time at the firm count – you’re there to learn as much as you can about the area of practice so whether it’s about how the law is applied in real life situations, the best way to handle clients and files, or what you can or cannot do when it comes to court representations, take advantage of the working knowledge that the seniors have to offer.

Also, it’s no secret that people love talking about themselves and in a law firm, your senior members would surely have loads experience and anecdotes to share. Ask them about their work, what challenges they face, and what you can do to help. Most importantly, make sure you are a keen member of the audience!

Don’t be a rumour-monger

The office gossip is usually an unsavoury character you find in every office and one that is detested by everyone, so you wouldn’t want to be branded as such. Although it may seem harmless on the surface, gossip can be malicious and lead to negative consequences for you. It creates trust issues among colleagues and shows you to be insecure, definitely not something you’d want to advertise when you’re trying to make a good impression. In short, stay focused on your work and don’t join the fray – you don’t need the bad press!

Be conscientious

Beyond taking the initiative, there are many other ways to make a good impression and one of them is to be conscientious. You are assigned a task – even something as menial as transcribing and note-taking – do it as though your life depended on it!

Go the extra mile, focus on producing work that is well done and present your work in a professional manner. If you make mistakes – which you will – take responsibility for it and take steps to improve. This speaks volumes about your character and shows that you take your work seriously. As a chambering pupil, conscientiousness will definitely make you stand out – positively.

Find your passion

Your Law degree may give you a good foundation in the basic principles and terms of law and hone your critical and analytical thinking skills. But it’s a whole different ball game when you’re in the thick of things and working on a client’s case.

To determine what drives you, try to work in different departments at the firm to get a feel of the different areas of specialisation and exposure to as wide a variety of work as possible. This also helps you understand what you like – or dislike – when it comes to legal work. Law is a demanding profession and it helps tremendously if you’re passionate about what you do.

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Deciding Your Area Of Practice

Qhaiz — Tue, 29 Mar 2022 11:49:04 +0000

This article aims to help you find the area of law which you are passionate about, and which suits your personality. Consider 4 questions to decide what type of law is a perfect fit for you.

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Deciding Your
Area of Practice

Every law student (including those aspiring to study law) and even young lawyers often struggle in deciding what type of law they want to practice. Legal dramas on TV and law school to a large extent gives the impression that criminal law or litigation and working in a large reputable law firm is the true mark of success.

Ultimately, finding the area of law which you are passionate about which suits your personality makes it all worthwhile.

Consider these 4 questions to decide what type of law is a perfect fit for you.

1. Do you like public speaking and presenting arguments?

If you can deal with constant conflict on a daily basis and enjoy the experience of speaking in front of an audience, then being a litigator in civil or criminal matters might be a good fit for you.

However, if you are a person who generally avoids conflict, then another type of law may be suitable, for example, corporate law. Pay close attention to the subjects that interest you in law school and your daily routine during pupillage.

2. Is a big paycheck your only source of motivation?

Did you know that studies suggest that lawyers who aren’t highly paid tend to be happier?

If remuneration is an important factor for you, then the area of law you choose to practice in may be very different compared to, say, someone who prioritises meaningful work which impacts society.

Although both approaches have their pros and cons, determining what motivates you is important for a long-standing career in legal practice.

3. Do you enjoy working on your own or in a competitive environment?

The truth about legal practice is that you need to manage your expectations- you may not have complete control over your work as you are subject to
– the demands of the court; and
– partners of the law firm (if you work in one).

If you thrive in an environment where you have more control, ultimately starting your own practice is advisable. If you enjoy the vibes working in a highly competitive environment, then working in a large law firm and going to court on a frequent basis may be a good fit.

Each person thrives in different working environments, so choose the one that works best for you.

4. Do you enjoy interacting with people or do you prefer paperwork?

If you enjoy going to court or interacting with clients, then the type of law you should consider practicing differs from someone who enjoys the ‘research and paperwork’ side of things.

Does writing briefs and legal research make you happier or is it handling clients and fighting battles in court that brings a spring to your step?

Whatever the case may be, make sure you choose something you enjoy-the better to experience a fulfilling career!

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Pre-University Law Articles

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CLP vs. BPTC: Making a Choice

Qhaiz — Tue, 29 Mar 2022 11:48:10 +0000

The choice between the CLP and the BPTC can seem daunting, with law graduates often pondering which path they should take to move forward in their legal career, and how their choice will impact them. Allow us to offer some insight.

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CLP vs. BPTC: Making A Choice

In Malaysia’s existing pool of professional graduates exists a large group who’ve completed their degrees in foreign universities. This holds particularly true for the legal field, among others.

While most would be forgiven for assuming that these graduates can immediately move on to practice after completing their LLB- that is not the case. Under Section 3 of the Legal Profession Act 1976, those law graduates will have to either complete the Certificate in Legal Practice, a.k.a the CLP (a Malaysian qualification), or the Bar Professional Training Course a.k.a BPTC (a U.K based Qualification) before kicking off their legal career as a Pupil-in-Chambers.

Entry Requirements

Potential CLP and BPTC candidates are expected to meet certain academic requirements in order to qualify as candidates in the first place.

CLP
Students sitting for the CLP examinations are expected to have a minimum of 3 credits at SPM level (including passing your compulsory subjects such as BM and Sejarah), or GCE ‘O’ Level.

Following this, CLP candidates will also need a minimum of 2 principal passes at STPM level, GCE ‘A’ Level, or, more recently, a recognised foundation programme; and finally, to complete your law degree without failing/ retaking any of the 6 core law subjects.

Differences

CLP

The CLP is entirely exam based, with no assignments or practical sessions. In the one year period of the course, students will need study volumes on Malaysian Law, a whole new ballgame when compared to their degree syllabus.

While you will learn to understand the theory and application of law in your pre-U and degree classes, the CLP syllabus instead focuses on the application of Malaysian, rather than the UK based law.

This culminates in a three-hour long examination covering the 5 subjects of the course- Civil Procedure, Criminal Procedure, Professional Practice, Evidence and the General Paper.

General consensus among the CLP alumnus on the best way to pass is to study hard, practice with past year questions, and hope for a bit of luck!

However, don’t be discouraged by potential difficulties and the time frame- being an advocate and solicitor is all about constant learning and determination.

BPTC
The BPTC, on the other hand, is a mix of exams and practical assignments. Students will need to complete 8 compulsory modules and 2 elective subjects.

Students will also be given practical lessons in the form of live advocacy training- the better to prepare you for the work in the field. Exams will be both in written and practical form- giving you the chance to prepare for research and referencing, and to actively apply what you have learnt.

You will also need to attend at least 10 Qualifying Sessions at their chosen Inn of Court. These sessions will provide opportunities to develop professionally, and will also spark an opportunity to network among potential co-workers, or fellow members of the field.

Students of the BPTC will be given multiple chances to re-sit any failed papers, whereas students sitting for the CLP are given one opportunity to re-sit a failed subject paper- failing 2 or more subjects would result in needing to retake the entire exam from scratch.(Keep this?)

Career Impact

So, how does choosing between them impact your legal career? Well… it depends.

The practical exposure BPTC students receive often works in their favour as they get to polish their public speaking and advocacy skills. This and the constant interaction with classmates or inn mates, and practising client interactions also helps improve your professional confidence, which can go a long way in impressing legal partners during pupillage interviews.

Something to Consider

Planning ahead is better than panicking later on- start considering your options early on in your degree.

Consider your own preferred method of learning, and consider which learning system suits you better- practical (BPTC) or theory based learning (CLP)?

In doing so, do not forget to factor in other considerations, such as personal skills which need bolstering, e.g. public speaking, networking, memorisation, etc.

It is also wise to consider the financial aspects of the respective courses, given that as a UK-based programme, the BPTC is much more expensive than the CLP.

It may not be an easy choice to make, but take comfort from this- your decision is yours alone. There is no wrong choice- only what you feel works best for you.

Good luck!

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Law Articles

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Legal Tech: 3 Things Every Law Student/Graduate Should Know

Qhaiz — Tue, 29 Mar 2022 11:47:41 +0000

Legal Tech or Legal technology is growing in its application and in time will become an indispensable part of the legal landscape. We share three things about Legal Tech every budding law student and law graduate should know.

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Legal Tech:

3 Things Every Law Student/ Graduate Should Know

Legal Tech or Legal technology is growing in its application and in time will become an indispensable part of the legal landscape.

Its role for most part however, is not very well understood and has also been met with a certain amount of apprehension, that it may reduce the need for lawyers.

In this article, we share three things about Legal Tech every budding law student and law graduate should know.

What is Legal Tech?

Legal tech basically refers to the use of technology and software in providing and assisting legal services. It serves to help large firms increase their efficiency and adapt to an increasingly progressive work environment. At the same time, legal tech. also helps small firms and sole practitioners maintain a competitive edge in the field by giving them access to powerful research tools. Examples of legal tech widely used by Malaysian legal practitioners and law students alike include web-based research tools such as LexisNexis, Westlaw and e.Law.my.

That’s not all. The scope of legal tech even covers legal directories and legal agreement templates!

The Role of Legal Tech

The Chief Justice of Malaysia, Tengku Maimun Tuan Mat at the Opening of the Legal Year 2019 stressed on the impact of technology on the legal profession:

“ … the legal profession must embrace technology. There is no option. It is coming soon to the legal profession. Adapt or be dropped.”

Legal tech has been shown to increase a firm’s productivity; applications in this field are often created with a view towards simplifying “administrative” tasks, such as ensuring the correct formatting of a legal document, or even reproducing the necessary documents. In a nutshell, the use of technology and apps automates most of the labour-intensive tasks traditionally performed by lawyers, increasing productivity and reducing overall expenses incurred by law firms.

Navigating the Future with Legal Tech

While legal tech increases efficiency, there have been concerns that it negates the services of legal practitioners. The reality, however, is that technology is still a long way from replicating the people skills, social awareness and intuition required to make a good lawyer.

What you can do as a law student:

Familiarise yourself with the basics such as Word, Outlook, Excel and PowerPoint and legal research tools. Understand how various research tools are used to do effective research and reduce time spent on administrative tasks.

Increase your tech knowledge by attending online courses, legal hackathons, etc. These are useful ways to gain additional knowledge and learn gain industry insights.

Gain practical experience through internships, moot court competitions and networking events.

In fact, law school provides a conducive learning environment to acquire this knowledge and additional skills to make your resume stand out!

Explore various courses on law programmes @ careeradvisor.asia and tech skills @ dta.academy.asia, today!

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Law Articles

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Do’s & Don’ts For a Good Legal Resume

Qhaiz — Tue, 29 Mar 2022 11:46:47 +0000

A legal resume is unique simply because legal applicants are expected to highlight their broad range of skills compared to a resume for job applications in other industries.

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DO’S & DON’TS

For A Good Legal Resume

Writing a good resume may be a daunting task for law graduates and even young lawyers seeking to land their dream job at a top legal firm.

A legal resume is unique simply because legal applicants are expected to highlight their broad range of skills compared to a resume for job applications in other industries.

We look at some do’s and don’ts to write a good legal resume worthy to get you one step closer to that legal position you’ve been eyeing all this while!

DO’S

1. Get your basics right
This point may not be rocket science, yet it is a common pitfall in job applications by young job seekers. Needless to say, the failure to provide basic information gives a bad first impression to your prospective employer and the application will most immediately be rejected. A legal resume should contain the following basic information:

– Full name and contact information
Provide your name, address, contact number and email address – avoid using a work email or phone number.
Avoid including personal information which may not have any relevance to your ability to undertake the job at hand, for example, marital status, number of children or even school graduation dates.

– Summary section
This is a brief description of why you are a perfect fit for the job and your legal background.  For a chambering position for instance, a short introductory paragraph could be “I graduated from… with a First Class Honours. Given my interest in criminal litigation and human rights advocacy, I am keen to pursue a chambering position in your esteemed organisation which
specialises in such areas of practice.”

– Degree classification and marks for subjects taken in law school
Failing to provide your degree classification and marks for subjects taken in your undergraduate level points to one of two things – the classification is either low or you are probably embarrassed to even mention it.

– Technical skills
Include in bullet point form your full range of technical skills (other than MS Word) including specialised ones relevant to the job which gives you an edge over other job applicants.

– Achievements
Be mindful to include any special achievements such as published articles or landmark cases won, etc or awards won during your tenure at a previous company that proves your dedication and commitment as an employee or a legal professional.

– Work history and references
Include the job title, name of company, nature of work done and duration. Brief information and contact details of your references are sufficient. Generally, a prospective employer can gauge an applicant’s commitment by looking at their work history, in particular the years of service in a company. Despite good academic results, employers tend to be put off by job hoppers.

2. Keep it concise and clear

Although working in a legal environment would necessarily mean having to deal with loads of paperwork and documentation, your resume should not resemble a legal brief.

A rule of thumb for a legal resume would be 2 pages. Even if you have vast working experience and other achievements/skills (eg published articles or even technical skills which are highly in demand), the point is to ensure your resume is not too wordy. Why? To avoid your strengths and capabilities going unnoticed. Every word in your resume should highlight your strengths and preferably demonstrate why you are a good fit for the preferred position in a particular law firm.

3. Font size and formatting makes a good first impression

As a general rule, stick to standard fonts such as Times New Roman or Calibri with an average font size 11/12. Using bullet points and short paragraphs with legible font/font size as well as adequate spacing will not only be easy on the eye of your prospective employer; it undoubtedly makes a good first impression!

4. Proofread (several times, if necessary!)

Legal professionals are perceived as having a good command of the English language and an eye for detail. Be mindful to edit and proofread your resume several times or better still get another pair of eyes to proofread your resume for typos and grammatical errors.

DON’TS

1. Flashy colours and graphics

Include a corporate image of yourself as the profile photograph on your resume instead of casual shots taken from Facebook or social media. Avoid using bright-coloured fonts or fancy headings in your resume. Always keep it professional.

2. Sending a soft copy of one standard resume to multiple employers

Always tailor your resume for different job applications/employers. The worst thing to do which kills your chances of being considered is sending a resume to the wrong employer or one standard resume to 20 employers. The email/cover letter should state clearly the subject of your contents, for e.g. ‘Application for the position of an Associate’.

Be mindful of your e-mail etiquette!

3. Specific reasons why you left your previous organisation

Don’t state the specific reasons for leaving your previous employment as this will be dealt with during the job interview stage.

4. Salary information from previous employment

Be mindful not to include salary information from previous employment unless it is a specific requirement of the prospective employer. Salary negotiations would usually take place once you have successfully secured an interview appointment.

5. Avoid using cliché terms

Using terms such as “people person”, “think out-of-the-box” or even “team player” usually points to the contrary. Instead, state specific accomplishments that display these qualities. Be prepared to elaborate on these accomplishments, if asked during the interview stage.

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Pre-University

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Learning Lab-Law Archives - Schlobal

Conflict of Laws

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The Law of Evidence

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Common Law Reasoning

Common Law Reasoning is a subject which explores the components of the English legal system and the distinctiveness of the common law tradition, as a legal methodology and characteristics applicable to the civil and criminal justice system.

Relevance of Common Law Reasoning

Behind English Property Law

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‘Life-Changing’ Public Law

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How To Stand Out In The Chambering Pool

Deciding Your Area Of Practice

CLP vs. BPTC: Making a Choice

Legal Tech: 3 Things Every Law Student/Graduate Should Know

Do’s & Don’ts For a Good Legal Resume