Kuala Lumpur

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Much ado about nothing? Climate change is real and aviation industry must step up its efforts
Malaysia | 18 November 2020

With airline companies rapidly depleting cash reserves and any form of subsidies to ensure survival in the current climate, the unsurprising reality is that efforts to go green have taken a step back. However, the pandemic has in a way allowed relevant industry players to pause and ponder on long-term strategies, including but not limited to the sustainability of both airline companies and, importantly, environmental protection.

Has Top Gun's Maverick lost his appeal? Pilot training enrolments decline amid COVID-19 pandemic
Malaysia | 14 October 2020

The domino effect of airlines' massive lay-offs of pilots is a decrease in pilot training applications in Malaysia. One of the many flight training organisations in Malaysia has seen a 30% fall in enrolment at its eastern Malaysia centre and a 15% decrease in its western Malaysia centre. The reason for this is because the investment does not necessarily guarantee its returns.

No holidays for the sick: functions and powers of aviation regulators during COVID-19 pandemic
Malaysia | 09 September 2020

In the midst of the COVID-19 pandemic and in a move to boost economic activity through medical tourism in Malaysia, the government has announced that it will partially reopen Malaysia's borders to medical tourists from designated green zone countries (eg, Brunei, Singapore, South Korea, Japan, Australia and New Zealand), allowing them to fly in via commercial or chartered flights.

High court dismisses airlines' application for judicial review of penalty imposed by aviation regulator
Malaysia | 12 August 2020

The Kuala Lumpur High Court recently dismissed an application by AirAsia Berhad and its long-haul sister airline, AirAsia X Berhad, for leave to commence judicial review proceedings against a financial penalty imposed by the Malaysian Aviation Commission (MAVCOM). This was the first time that an airline had sought to challenge a penalty imposed by MAVCOM.

Weathering COVID-19: aviation regulators' measures to aid aviation operations
Malaysia | 29 July 2020

On 7 June 2020 the government announced that Malaysia's Movement Control Order would enter a 'recovery phase' beginning on 10 June 2020 and ending on 31 August 2020. As a result, the Malaysian Aviation Commission and the Civil Aviation Authority of Malaysia recently introduced measures to ease the administrative and regulatory challenges faced by the aviation industry during the Recovery Movement Control Order period.

Game of drones
Malaysia | 22 July 2020

Drone technology is developing fast and drone popularity is growing even faster. It is crucial that drone regulations keep up to speed by undergoing periodic updates and amendments. The time is right for a comprehensive update to the rather limited drone rules in the Civil Aviation Regulations. It is also hoped that both the Civil Aviation Authority of Malaysia and the Ministry of Transport will keep a close eye on the development of other aeronautical projects such as the flying car.

High court issues key judgment for aviation service providers
Malaysia | 01 July 2020

In July 2019 the Kuala Lumpur High Court awarded a summary judgment for a combined sum exceeding RM40 million for unpaid passenger service charges in three civil suits brought by Malaysia Airports Sdn Bhd against AirAsia Berhad and AirAsia X Berhad. The recently released written grounds of judgment for this matter have provided welcome clarification on several important issues for providers of aviation services.

Air passenger rights curtailed by COVID-19 pandemic
Malaysia | 13 May 2020

According to the Malaysian Aviation Commission (MAVCOM), the COVID-19 pandemic constitutes 'extraordinary circumstances' under the Malaysian Aviation Consumer Protection Code. As a result, MAVCOM is temporarily providing some leeway in terms of how airlines can respond to passenger refund requests. However, in doing so, it may have inadvertently exposed passengers to the risk of losing their entire ticket cost.

Staying airborne during COVID-19 pandemic
Malaysia | 06 May 2020

The Malaysian Aviation Commission (MAVCOM) recently reported a bleak outlook in 2020 for the Malaysian aviation services market due to the COVID-19 pandemic. MAVCOM foresees that the significant decline in tourist arrivals and receipts, passenger traffic and revenue due to lower air travel demand could be made worse if the pandemic proves hard to contain, leading to prolonged travel restrictions. This article outlines government initiatives to support the aviation industry.

COVID-19: MAVCOM issues commentary on impact of potential government aid
Malaysia | 29 April 2020

The COVID-19 pandemic's impact on the Malaysian economy during this period of uncertainty and crisis depends on national-level efforts to contain the virus. Until then, the global restrictions imposed on travel will continue to severely undermine the aviation industry, possibly to the extent of necessitating government intervention in the market. It would be prudent for the government to consider the Malaysian Aviation Commission's position when conducting any cost-benefit analysis of measures or aid.

MAVCOM imposes significant financial penalties on AirAsia, AirAsia X and Malaysia Airports (Sepang)
Malaysia | 05 February 2020

The Malaysian Aviation Commission (MAVCOM) recently announced that it had imposed RM2 million fines on AirAsia Berhad and its long-haul sister airline AirAsia X Berhad. MAVCOM further announced that it had imposed an RM856,875 penalty on Malaysia Airports (Sepang) Sdn Bhd, which is the operator of Kuala Lumpur International Airport. The fines come at a time of considerable uncertainty for MAVCOM and the Malaysian aviation industry.

FAA downgrades Malaysia's air safety rating
Malaysia | 27 November 2019

Malaysia's International Aviation Safety Assessment air safety rating was recently downgraded from Category 1 to Category 2 by the US Federal Aviation Administration (FAA). As a result, all Malaysian airlines are now restricted from adding new flights to the United States, although existing flights will be allowed to continue under heightened FAA surveillance and checks. The downgrade also means that reciprocal code-sharing arrangements between US and Malaysian airlines are no longer permitted.

Now everyone can fly… with even fewer headaches! Amendments to MAVCOM Protection Code
Malaysia | 06 November 2019

The Malaysian Aviation Commission Protection Code 2016 was recently amended. The amendments, which considered feedback from consumers and consultations with industry players, aim to promote greater transparency and fairness in dealings between airlines and passengers, which should allow consumers to enjoy monetary savings and make more informed decisions.

MAVCOM imposes fines on airline and airport operators
Malaysia | 30 October 2019

The Malaysian Aviation Commission recently imposed RM200,000 fines on two airline operators for charging credit card, debit card and online banking processing fees separately from their base fares in breach of the Aviation Consumer Protection Code. The commission also issued a RM1.179 million fine to airport operator Malaysian Airports (Sepang) Sdn Bhd for failing to meet several service level requirements regarding airport users under the Implementation of the Airports Quality of Service Framework Directive.

High court clarifies aviation regulator's dispute resolution jurisdiction
Malaysia | 07 August 2019

The Kuala Lumpur High Court recently granted summary judgment for a combined sum exceeding RM40 million for outstanding passenger service charges. In coming to this decision, the court dealt with the jurisdiction of the nation's aviation regulator to resolve disputes between aviation service providers prescribed under the Malaysian Aviation Commission Act 2015.

Judicial review leave principles reaffirmed as high court dismisses AirAsia's leave application
Malaysia | 10 July 2019

The Kuala Lumpur High Court recently dismissed a judicial review leave application brought by AirAsia Berhad and AirAsia X Berhad (collectively, AirAsia) against the Malaysian Aviation Commission, with Malaysia Airports (Sepang) Sdn Bhd being named as the second respondent. AirAsia argued that the passenger service charge rates prescribed in the regulations were ceiling rates rather than fixed rates and, as such, AirAsia was not required to pay the revised amount.

Civil aviation security: new regulations take effect
Malaysia | 19 June 2019

The Civil Aviation (Security) Regulations 2019 (Security Regulations) recently entered into force. Among other things, the regulations have established new aviation security authorities, implemented national security programmes and introduced new security and screening controls. Passengers, operators (including aerodrome operators), ground handlers and other persons who fail to comply with the Security Regulations could face a fine of up to RM200,000 or up to five years' imprisonment (or both).

Lewdness in flight
Malaysia | 08 August 2018

A Bangladeshi man was recently caught committing lewd acts on a flight departing from Kuala Lumpur International Airport. It is unclear whether the criminal laws in Malaysia could apply in this case, as available news reports have not yet provided sufficient information. However, assuming that Malaysian criminal laws apply, the man's curious actions may contravene several Malaysian statutes, including the Penal Code.

Latest amendments to Malaysian Aviation Commission Act 2015
Malaysia | 18 April 2018

The Malaysian Aviation Commission (MAVCOM) Act 2015 enables MAVCOM to serve as the economic regulator for civil aviation in Malaysia, with the goal of promoting a commercially viable, consumer-oriented and resilient civil aviation industry which supports the nation's economic growth. The first amendment to the act recently came into force. Among other things, it makes changes to the definition of 'air traffic right', expands MAVCOM's powers and imposes financial penalties.

Now everyone can fly… with fewer headaches!
Malaysia | 31 January 2018

As air travel becomes more accessible to the public, especially with the proliferation of low-cost travel options, the issue of safeguarding consumers' interests has attracted increasing attention. The government has chosen to regulate airline service standards by introducing the Malaysian Aviation Consumer Protection Code. The code aims to strike the right balance between protecting passengers and industry competitiveness.

Employment & Immigration

COVID-19: legal position of migrant workers in Malaysian construction sector
Malaysia | 27 May 2020

This article sets out the impact of the COVID-19 pandemic on the legal position of migrant workers in Malaysia, particularly in the construction sector, including the risk of deportation of undocumented workers and the current local stigma. This article covers possible restrictions, procedures and challenges faced by documented migrant workers, documented migrant workers with a permit or pass that expired during the Movement Control Order period and undocumented migrant workers in Malaysia.

Projects, Construction & Infrastructure

Construing conditional payment terms beyond pay-when-paid clauses under CIPAA
Malaysia | 26 October 2020

A contractor and claimant, Econpile, has had verdicts delivered by both the Court of Appeal and the High Court on, among other things, the issue of whether an adjudicator has the jurisdiction to decide on a payment claim when the contract has been terminated and whether the contractor is entitled to commence an adjudication proceeding under the Construction Industry Payment and Adjudication Act 2012 after the contract has been terminated.

COVID-19: Ministry of Works FAQs regarding RMCO
Malaysia | 29 June 2020

The Ministry of Works has issued a standard operating procedure for the construction industry (Construction SOP), effective for the duration of the Recovery Movement Control Order (RMCO). The ministry has also published FAQs addressing the common queries arising from the Construction SOP. The Construction SOP previously issued by the Ministry of Works for the Conditional Movement Control Order continues to apply for the duration of the RMCO subject to the amendments highlighted in this article.

COVID-19: government issues SOP for construction sector
Malaysia | 18 May 2020

Following the prime minister's announcement on 1 May 2020 regarding the reopening of the economy, the construction industry is permitted to operate with effect from 4 May 2020. Such operations will be subject to compliance with the standard operating procedure for construction issued by the Ministry of Works.

COVID-19: construction industry players, start your engines!
Malaysia | 11 May 2020

As Malaysia transitions into the third phase of the Movement Control Order (MCO Phase 3), the government has moved to allow additional economic sectors to operate during this period. This includes construction projects and services related to construction works. However, construction industry players that intend to resume operations during MCO Phase 3 should take note that they must comply with the third set of frequently asked questions issued by the Ministry of International Trade and Industry.

COVID-19: Ministry of Works FAQs for construction industry
Malaysia | 04 May 2020

In relation to the Movement Control Order (MCO) regarding COVID-19, the Ministry of Works, among others, issued a series of frequently asked questions to clarify some of the issues affecting the construction industry. The Ministry of Works has since confirmed that all works at construction sites are not permitted under the MCO and must therefore be stopped during the relevant period, except for 'critical works'.

COVID-19 and construction projects – what you need to know and what you can do now
Malaysia | 27 April 2020

In its effort to contain the COVID-19 outbreak, the government has implemented the Movement Control Order (MCO) throughout Malaysia. The MCO has affected the performance of non-essential works, including works at project and construction sites where workers are required to stop work. Questions remain, including does the COVID-19 outbreak or the MCO constitute a force majeure event? And how does the outbreak or the MCO affect parties' rights and obligations in terms of timing and costs?

Retention sums – are they really yours?
Malaysia | 20 April 2020

Retention sums are usually provided in construction contracts to be withheld by the employer from the sum otherwise certifiable to the contractor. This serves to safeguard employers against possible defects or non-completion of works on the part of contractors. The Federal Court recently decided whether retention sums under a construction contract are held on trust by the employer for the benefit of the contractor.

Prospectivity trumps retrospectivity and, no, it's not fake news
Malaysia | 13 April 2020

Prior to recent Federal Court decisions, there was a cloud of uncertainty arising from conflicting decisions as to whether the Construction Industry Payment and Adjudication Act 2012 (CIPAA) applies prospectively or retrospectively. Based on two recent decisions, it is clear that the CIPAA does not apply to construction contracts made before the CIPAA came into operation on 15 April 2014 and that parties to such contracts cannot resort to statutory adjudication proceedings to resolve payment disputes.

Federal Court rules that CIPAA is prospective
Malaysia | 11 November 2019

The Federal Court recently delivered a landmark ruling in which it clarified points of law on the retrospective application of the Construction Industry Payment and Adjudication Act 2012 (CIPAA) and the application of Section 35 of the CIPAA, which governs the validity of pay-when-paid clauses in construction contracts. The court's decision that the CIPAA has no retrospective effect is far reaching.

2018 developments in statutory adjudication
Malaysia | 09 September 2019

In 2018 Malaysia saw considerable developments in case law on statutory adjudication. Stakeholders' use of this form of dispute resolution mechanism continues to grow exponentially with no sign of abating. This article examines some of the significant decisions that the Malaysian courts handed down in 2018 and their impact on statutory adjudication under the Construction Industry Payment and Adjudication Act.

Developments in statutory adjudication in 2017
Malaysia | 21 May 2018

Malaysia witnessed considerable developments in statutory adjudication case law in 2017, probably due to the increasing use of this form of dispute resolution mechanism by stakeholders in the construction industry. This update examines some of the significant decisions that were handed down by the Malaysian courts in 2017 and their impact on statutory adjudication under the Construction Industry Payment and Adjudication Act.

Statutory adjudication: pay-when-paid clauses remain valid
Malaysia | 19 March 2018

The Court of Appeal recently considered whether a pay-when-paid clause in a construction contract is void under the Construction Industry Payment and Adjudication Act. It found that pay-when-paid clauses under a construction contract drawn up before the enactment of the Construction Industry Payment and Adjudication Act will remain valid and not be affected by the introduction of Section 35, which prohibits any conditional payment clauses in construction contracts.

Federal Court decision changes adjudication practice in Malaysia
Malaysia | 18 December 2017

The Federal Court recently dealt with three broad issues under the Construction Industry Payment and Adjudication Act – namely, jurisdictional challenge, the exclusion of defences and the setting aside and staying of decisions. The decision has broad repercussions for the way that adjudications are conducted in Malaysia.

Development of statutory adjudication
Malaysia | 26 June 2017

The Construction Industry Payment and Adjudication Act 2012 came into effect on April 15 2014. Since then, the Malaysian courts have had the opportunity to consider various aspects of the act on numerous occasions. Some significant decisions have been handed down by the courts in the past two-and-a-half years and although statutory adjudication in Malaysia is still in its infancy, it is evident that a body of local decisions is steadily being built up to assist in the interpretation of the act.

Real Estate

COVID-19: strata SOPs and FAQs relaxed during RMCO
Malaysia | 17 July 2020

The Ministry of Housing and Local Government (KPKT) recently released a circular on the standard operating protocols (SOPs) for the strata management sector, effective during the Recovery Movement Control Order (RMCO) period. A series of FAQs by the KPKT has since been made available on the KPKT's website. This article highlights the KPKT's strata SOPs and FAQs applicable during the Controlled Movement Control Order which continue to apply for the duration of the RMCO.

COVID-19: no running around condominium compound
Malaysia | 01 May 2020

With the implementation of the Movement Control Order (MCO) in Malaysia to combat the COVID-19 pandemic, the movement of Malaysian residents is effectively restricted to their homes unless it is for essential needs. For strata property residents, the foremost question in their minds is whether movements within the common properties are restricted. Can residents jog around the condominium during the relevant period? Can the poolside cafe open for business?