ADMINISTRATIVE LAW- CITIZENSHIP- CITIZENSHIP BY OPERATION OF LAW

Legal Updates from YHA Law Firm

I adopted a child that was found outside of a hospital in Kuala Lumpur, Malaysia when the child was 8 years old. I brought Kelvin (the child) to the National Registration Department (NRD) when he turned 12 years old for his MyKad registration. The officer issued a second birth certificate, leaving the parents’ name column blank, stating that such information was not available and that Kelvin’s nationality was “yet to be determined.” When the third birth certificate was issued, Kelvin was labelled as a “non-citizen” and the parents’ information was unobtainable.

Q: What can I do so that Kelvin will officially be a citizen of Malaysia?

A: You can rely on the concept of “jus soli” and “jus sanguinis” when it comes to determining the citizenship of a person (Section 1(a) of Part II of the Second Schedule of the Federal Constitution).

Q: What is “jus soli” and “jus sanguinis”?

A: “Jus soli” is citizenship that is based on the place of birth, while “jus sanguinis” is citizenship based on blood relations.

“Jus sanguinis” has two presumptions:

Any child “found exposed” in any location is a citizen of the country,
Unless this can be proven otherwise. (Section 1(a) of Part II of the Second Schedule of the Federal Constitution)

Q: What does “found exposed” mean?

A: It means that the child is abandoned and discovered by people at any location without the presence of their biological parents.

Q: Who needs to prove Kelvin’s citizenship?

A: The defendant who claims that the child is not abandoned (in this scenario, the NRD) will need to prove Kelvin’s mother’s identity.

Q: In the case whereby Kelvin can be proven that he is abandoned, does that mean that he is a citizen of Malaysia?

A: In that case, Kelvin will be presumed to be born to a mother that is a resident of Malaysia unless the contrary can be shown (Section 19B of Part III of Second Schedule of Federal Constitution). There is no evidence to say that Kelvin is a citizen of another country. This means that Kelvin will be a citizen of Malaysia.

Sorotan Terkini

ADMIRALTY IN REM – WRONGFUL ARREST – POSSESORY RIGHT – ARREST GONE WRONG: WHEN A SHIP ARREST BACKFIRES WITH DAMAGES

In Eletson Holdings Inc & Ors v The Vessel “Paros” [2026] 8 MLJ 80, the High Court set aside an arrest after finding that the plaintiffs had no proprietary or possessory right to the vessel at the time of the writ, as the bareboat charter had already been terminated. The Court held that the claim was in substance a corporate control dispute dressed up as an admiralty action, and emphasised that such disputes do not fall within admiralty jurisdiction. Critically, the plaintiffs’ failure to disclose the termination of the charter when obtaining the arrest warrant amounted to a serious breach, leading the Court to find mala fides or gross negligence and order damages for wrongful arrest. The decision reinforces that ship arrest is a powerful remedy that must be exercised with full disclosure and a proper maritime foundation.

14 Julai ,2026 Tiada Ulasan

GUARANTEE – PERSONAL GUARANTEE ≠ PAY ON DEMAND: COURT DRAWS THE LINE BETWEEN SURETYSHIP AND DEMAND GUARANTEES

In CE Energy DMCC v Bashar [2026] Lloyds’s Rep 267, the Commercial Court clarified that not all guarantees labelled “on demand” will be treated as demand guarantees. On a proper construction, the court held that the personal guarantee in question was a contract of suretyship, requiring proof of the principal debtor’s liability rather than automatic payment upon demand. Crucially, the court found that the debtor’s “irrevocable” admissions of debt in a payment agreement created a binding contractual estoppel, which the guarantor could not challenge. The decision also confirms that, where payment is due on a “day certain”, a seller may still claim the price notwithstanding retention of title. The case underscores the importance of precise drafting and the risks of entering into settlement agreements that conclusively fix liability.

14 Julai ,2026 Tiada Ulasan

MARITIME NEGLIGENCE – PLAINTIFF CLAIMED FOR DAMAGES CAUSED DURING ANCHOR DEPLOYMENT OPERATION – CALDERBANK OFFERS

In Tom Eastwind 365 Sdn Bhd v The Owners of the Vessel “Icon Sophia” [2025] 9 MLJ 397, the High Court held that the doctrine of res ipsa loquitur applied in a maritime collision during an anchor deployment operation, allowing an inference of negligence against the tug owner. The Court clarified that the doctrine is not defeated merely because the defendant adduces evidence explaining the accident – such evidence goes to rebutting the inference, not preventing it. While liability was established due to the tug master’s error of judgment in manoeuvring too close to a stationary barge, the plaintiff failed to properly prove its damages and was awarded only RM50,000. Notably, despite succeeding on liability, the plaintiff was ordered to pay costs after rejecting reasonable Calderbank offers, underscoring the risks of pursuing litigation without properly substantiated claims.

14 Julai ,2026 Tiada Ulasan

JURISDICTION – BILLS OF LADING – BREACH OF HIMALAYA CLAUSE – BREACH OF EXCLUSIVE JURISDICTION CLAUSE – ONEROUS OR UNUSUAL TERMS

In Maersk Guinéa-Bissau SARL v Almar-Hum Bubacar Baldé SARL [2026] 1 Lloyd’s Rep 215, the English Commercial Court held that a shipper was liable for breach of an exclusive jurisdiction clause and a Himalaya clause after commencing proceedings in Guinea-Bissau instead of England. The Court confirmed that such clauses are standard and enforceable, and that commencing foreign proceedings in breach of them can give rise to a claim for damages. Notably, the Court also recognised that Himalaya clauses may be used offensively, allowing subcontractors to recover losses caused by wrongful litigation. The foreign judgment was not recognised due to lack of jurisdiction and denial of natural justice.

14 Julai ,2026 Tiada Ulasan

DELIVERY WITHOUT PRESENTATION OF BILL OF LADING – LOI WON’T SAVE YOU: SHIPOWNER LIABLE FOR MISDELIVERY DESPITE INDEMNITY

In United Overseas Bank Ltd v The “Maersk Katalin” [2026] 1 Lloyd’s Rep 18, the Singapore High Court reaffirmed that delivery of cargo without presentation of original bills of lading remains a fundamental breach, even where carried out against letters of indemnity. The Court held that LOIs merely shift commercial risk but do not authorise misdelivery, and rejected arguments of consent, ratification and causation. Significantly, the Court emphasised that the burden lies on the carrier to prove that the loss would have occurred in any event – a burden not easily discharged. The decision underscores the continued strict liability regime in misdelivery cases, particularly where banks as bill holders are involved.

14 Julai ,2026 Tiada Ulasan

CONTRACT LAW – ‘UK COURTS’ MEANS ENGLAND: COURT UPHOLDS JURISDICTION DESPITE VAGUE CLAUSE

In SMT Global Logistics Ltd v Georgian Airlines LLC [2025] Lloyd’s Rep. Plus 89, the Commercial Court held that a clause referring disputes to “the court in accordance with current legislation of the United Kingdom” was a valid jurisdiction clause in favour of the High Court of England and Wales. The Court also confirmed that the Montreal Convention does not apply to pure contractual claims for non-performance, such as repayment and loss of profits. Emphasising a broad and commercially sensible interpretation, the Court enforced the parties’ choice of forum and refused to stay proceedings, reaffirming that jurisdiction clauses will be upheld unless there are overwhelming reasons to depart.

14 Julai ,2026 Tiada Ulasan