Covid-19: voices from across the globe

In Malaysia, the Government has issued three Movement Control Orders on 16 March 2020, 25 March 2020 and 10 April 2020 pursuant to the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967, which took effect from Wednesday, 18 March and is scheduled to expire on Tuesday, 28 April 2020. As such citizens are to remain at home and all businesses are closed save for essential services.

To this end, one has had to be rooted to one’s home save for going out to purchase basic necessities. It has been a peculiar experience not having the usual routine of having to go to the office, attending court in respect of hearings, engaging with clients as well as enjoying the benefits of daily life be it exercising or socialising with friends or colleagues. As such, on a personal level, like many other Malaysians one has to adjust and come up with a new daily routine to ensure one remains active both physically and mentally.

In terms of access to basic necessities, to date, there have no real issues in that the supermarkets and fresh food markets are relatively well stocked.

The Ministry of Health, the hospitals and medical health practitioners are doing a commendable job as evidenced by the recovery rates of those infected and steps being taken to curtail the spread of Covid-19 in Malaysia. The public health and private health system in Malaysia has performed well during this difficult period.

Generally, the Malaysian public in general has adhered to the protocols put in place by virtue of the Movement Control Orders albeit there have been those that have been arrested and charged for breaching the said protocols.

Malaysians are generally resilient people and we hope to come out of this troubling time stronger and perhaps more unified as a country given our diverse racial, religious and social backgrounds. I envisage that it will be a challenging time for the country as a whole as many seek to rebuild their lives, businesses and the economy post the lifting of the restrictions on movement.

As my practice and that of my firm is principally focused on disputes be it litigation before the national courts or arbitration, the restrictions on movement have created difficulties.

The national courts in Malaysia have been closed since 18 March 2020 save for urgent applications and to deal with bail or remand applications in so far as certain criminal matters are concerned. As such, appeals, trials as well as hearings in respect of various interlocutory applications fixed between 18 March 2020 to 28 April 2020 have had to be adjourned to later dates. Due to the court infrastructure in place, we are still able to e-file documents with the court and serve cause papers electronically on opposing parties. The registrars of the Federal Court, Court of Appeal and High Court have been able to monitor and case manage cases through the e-review case management system that is operational throughout Malaysia. During this period, we have also had a number of decisions delivered by the courts as the judges in respect of cases that had previously concluded.

In so far as arbitration is concerned, due to the Movement Control Orders in place, the Asian International Arbitration Centre based in Kuala Lumpur is closed. As such, the AIAC has been unable to accept new cases in respect of arbitration disputes as well as adjudication disputes during this period. Prospective claims have to put on hold for now. It is envisaged that once the centre re-opens that it will face a busy period. In so far as arbitrations that are afoot, the relevant parties continue to have to comply with the directions issued by the arbitral tribunal in so far as the matters I am involved in.

The longer it takes to combat the Covid-19 epidemic, it is envisaged that the smaller law firms in Malaysia will suffer as they may not necessarily have the financial strength to survive. The larger law firms will likely be able to withstand the present restrictions that have been imposed. Arising from the Covid-19 epidemic there may be a change in the legal landscape in Malaysia.

Moving forward, some of the following issues are likely to arise or have in fact arisen:

(a) Arguments relating to limitation in so far as prospective claims are concerned as time continues to run during the Movement Control Orders;

(b) Arguments relating to non-compliance with the timelines for filing of cause papers and/or notices of appeals under the Rules of Court 2012, the Rules of the Court of Appeal 1994 and the Rules of the Federal Court 1995 as time continues to run during the Movement Control Orders;

(c) Queries relating to the doctrine of frustration and applicability of force-majeure clauses in so far as existing contracts are concerned;

(d) In the context of construction and infrastructure disputes, how extensions of time or late delivery issues will need to be addressed between the employer and main contractor as well as between the main contractor and the sub-contractors; and

(e) In the context of investment treaty disputes, possible claims for expropriation or unfair treatment arising from some of the policies imposed by the Government of Malaysia during this period.

Some of these issues are likely to be exacerbated should the restrictions on movement be extended beyond 28 April 2020 in so far as Malaysia is concerned. Dispute practitioners in Malaysia will need to be ready to address their client’s concerns in respect of some of the above.