Papers by Wan Zulhafiz Zahari
UUM journal of legal studies, 2023
In the last few decades, Malaysia has become a global hub for higher education services. Policies... more In the last few decades, Malaysia has become a global hub for higher education services. Policies and programs have been put in place to improve the higher education system in the country and attract more international students. This development needs to be aligned with an effective dispute resolution framework to ensure the continuous development of the Malaysian higher education sector. The methodology employed in this paper is a doctrinal method based on the nature of the discourse. To examine the relevant higher education concepts and dispute resolution framework, research papers pertinent to the subject were analysed. In addition, relevant legislations were consulted to determine the adequacy of the existing legal framework 190
This research aims at determining the feasibility of implementing the Industry of Mutual Hold Har... more This research aims at determining the feasibility of implementing the Industry of Mutual Hold Harmless Deed (“IMHH”) in the ASEAN oil and gas industry legal framework. Currently, the IMHH applies to the UK’s territory of the North Sea and the Irish Sea. It was created to support and effectively manage the inherent risks in offshore activities in the oil and gas industry whereby a company is considerably in a better position will protect its own people and equipment by providing an indemnification. In this regard, companies are more certain of the risks they must insure and could avoid multiple insurance policies on the same risk. However, it is important to note that some modification of the IMHH model should be made to accommodate peculiar circumstances. In doing so, ASEAN policies and practices should be taken into consideration in the discussion. In addition, the local law of the respective ASEAN member states is equally essential to be analysed. Hence, the methodology employed in this research will be a comparative analysis which will be carried out in a descriptive, analytic and prescriptive manner
Many oilfield service contracts in Malaysia contain an imbalanced allocation of liability and unf... more Many oilfield service contracts in Malaysia contain an imbalanced allocation of liability and unfair indemnity and hold harmless clauses. Therefore, the legality of oilfield service contracts, and in particular the risk allocation provisions, will be explored and analysed in this study. It is also expected that the findings from this research will shed light on the problem concerning imbalanced risk allocation provisions and unfair indemnity and hold harmless clauses. Combining empirical evidence with legal doctrinal study, this research will propose a regulatory framework and practical measures to the Malaysian legislative body. Thus, a suitable legal mechanism will be proposed in order to solve this problem. The regulations are designed to address the issue of imbalanced risk allocation and unfair indemnity and hold harmless clauses between the operator and contractor in the oilfield service contracts in Malaysia. This study suggests a specific statutory law designed to regulate unfair risk allocation provisions and imbalanced indemnity and hold harmless clauses. The proposed law would seek to protect the interest of contractors in Malaysia and would be called: the Malaysian Oilfield Anti-Indemnity Act
This research focuses on contractual mechanisms that will help to achieve a fair allocation of ri... more This research focuses on contractual mechanisms that will help to achieve a fair allocation of risk between operators and contractors. Companies that are active in the petroleum industry are exposed to substantial risks and liabilities, since they are dealing with a wide range of activities which engage volatile hydrocarbons. In this regard, most of the petroleum contracts for upstream projects depart from the common law tradition of risk allocation by shifting the risk to another party; this is done to protect commercial interests. To this end, contractual provisions are used in allocating the risks; especially those related to people, property and the environment. Risk allocation provisions deal with hypothetical events – this means that the identity of the person bearing the liability which will accrue if certain events take place is determined in advance. Such clauses are intended to ensure that, where harm arises, oil companies take responsibility for such harm and can meet the costs of mitigating that harm, including requirements for insurance and the allocation of liability. These clauses are also known as risk allocation provisions. Contractual risk allocation is one element of risk management between or among the parties involved in an undertaking. This is particularly challenging in the oil and gas industry where several parties are involved in one project. A range of risk allocations are used in oil and gas contracts, including exclusion of liability and liability caps. The research argues that the fair allocation of risk can be achieved by setting out a knock-for-knock indemnity clause in the oil and gas contracts. The methodology employed in this research will be a comparative analysis which will be carried out in a descriptive, analytic and prescriptive manner.
Oil and gas projects are risky ventures that involve multiple parties, including corporates and s... more Oil and gas projects are risky ventures that involve multiple parties, including corporates and sovereign states to operate complex, expensive and high-risk activities. In this regard, the oil and gas sector is exposed to various types of disputes such as international maritime boundary claims, claims over jurisdiction, expert determination, environmental claims, regulatory issues, and trade restriction. To ensure the smooth running of the projects, the parties in the oil and gas industry prefer to opt for alternative dispute resolution (ADR) processes litigation rather. ADR refers to all means of dispute settlement other than litigation such as negotiation, mediation, adjudication, and arbitration. In Malaysia, the Kuala Lumpur Regional Centre for Arbitration (KLRCA) is the principal institution that administers and resolves all commercial arbitration disputes. However, this paper argues that, due to the complexity and technicalities of operations in the oil and gas sector, there is a need to set up a particular arbitration centre for oil and gas under the KLRCA to handle and resolve the disputes. Moreover, by establishing the special arbitration centre, it will help to promote the KLRCA as the choice of arbitration hub, especially within the Organization of the Petroleum Exporting Countries (OPEC). In doing so, a special legal framework is needed to establish a special centre for oil and gas as a roadmap for the industry key players in solving their dispute. The methodology employed in this research will essentially be a combination of literature review and qualitative study i.e. semi-structured interview, which will be carried out in a prescriptive, comparative and analytic manner.
UUM Journal of Legal Studies
In the last few decades, Malaysia has become a global hub for higher education services. Policies... more In the last few decades, Malaysia has become a global hub for higher education services. Policies and programs have been put in place to improve the higher education system in the country and attract more international students. This development needs to be aligned with an effective dispute resolution framework to ensure the continuous development of the Malaysian higher education sector. The methodology employed in this paper is a doctrinal method based on the nature of the discourse. To examine the relevant higher education concepts and dispute resolution framework, research papers pertinent to the subject were analysed. In addition, relevant legislations were consulted to determine the adequacy of the existing legal framework for dispute resolution in the higher education context in Malaysia. The main objective of this paper is to examine the nature of education services and the existing dispute resolution mechanisms in the Malaysian higher education sector. The paper will explor...
Oil and gas projects are risky undertakings, which may cause severe damage to property and the en... more Oil and gas projects are risky undertakings, which may cause severe damage to property and the environment, not to mention, personal injury and death to personnel. Contractual provision such as an indemnity and mutual hold harmless clause is used as a tool in allocating the risks. However, as a consequence of the private and government litigation arising from the Macondo oil spill in the Gulf of Mexico in 2010 as well as revised perceptions of risk exposure, evidence suggests that operators generally are seeking to modify the established approach to liability allocation through individual contract negotiations with contractors. This scenario has significant and potentially adverse financial implications for the contractors and for the long-term sustainability of the industry. In this respect, there is a tendency that the oil companies will pass a greater share of the risks onto contractors. This problem could lead to financial impairment and unfairness to the contractors. An empiric...
Oil and gas projects are risky ventures that involve multiple parties, including corporates and s... more Oil and gas projects are risky ventures that involve multiple parties, including corporates and sovereign states to operate complex, expensive and high-risk activities. In this regard, the oil and gas sector is exposed to various types of disputes such as international maritime boundary claims, claims over jurisdiction, expert determination, environmental claims, regulatory issues, and trade restriction. To ensure the smooth running of the projects, the parties in the oil and gas industry prefer to opt for alternative dispute resolution (ADR) processes litigation rather. ADR refers to all means of dispute settlement other than litigation such as negotiation, mediation, adjudication, and arbitration. In Malaysia, the Kuala Lumpur Regional Centre for Arbitration (KLRCA) is the principal institution that administers and resolves all commercial arbitration disputes. However, this paper argues that, due to the complexity and technicalities of operations in the oil and gas sector, there is a need to set up a particular arbitration centre for oil and gas under the KLRCA to handle and resolve the disputes. Moreover, by establishing the special arbitration centre, it will help to promote the KLRCA as the choice of arbitration hub, especially within the Organization of the Petroleum Exporting Countries (OPEC). In doing so, a special legal framework is needed to establish a special centre for oil and gas as a roadmap for the industry key players in solving their dispute. The methodology employed in this research will essentially be a combination of literature review and qualitative study i.e. semi-structured interview, which will be carried out in a prescriptive, comparative and analytic manner.
This research focuses on contractual mechanisms that will help to achieve a fair allocation of ri... more This research focuses on contractual mechanisms that will help to achieve a fair allocation of risk between operators and contractors. Companies that are active in the petroleum industry are exposed to substantial risks and liabilities, since they are dealing with a wide range of activities which engage volatile hydrocarbons. In this regard, most of the petroleum contracts for upstream projects depart from the common law tradition of risk allocation by shifting the risk to another party; this is done to protect commercial interests. To this end, contractual provisions are used in allocating the risks; especially those related to people, property and the environment. Risk allocation provisions deal with hypothetical events – this means that the identity of the person bearing the liability which will accrue if certain events take place is determined in advance. Such clauses are intended to ensure that, where harm arises, oil companies take responsibility for such harm and can meet the...
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Papers by Wan Zulhafiz Zahari
restriction. Nevertheless, the IMHH will be subject to the reasonableness test under UCTA. Thus, it could be argued that in spite of the restriction under TUCTA, the IMHH in standard form oilfield service contracts e.g., LOGIC could still be enforceable in Thailand, subject to certain limitations.
Key words: contract law, oil and gas, Malaysia.