Firm Profile > Azmi & Associates > Kuala Lumpur, Malaysia
Azmi & Associates Offices
14TH FLOOR, MENARA KECK SENG
203 JALAN BUKIT BINTANG
55100 KUALA LUMPUR
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Azmi & Associates > The Legal 500 Rankings
Malaysia > Corporate and M&A Tier 3
The corporate and M&A team at Azmi & Associates provides transactional advice to clients including private companies, listed companies, government-linked entities, multinational conglomerates and high-net-worth individuals. The group is also experienced in regulatory compliance, due diligence, leveraged buyouts and corporate governance, as well as in private equity and venture capital. Azmi Mohd Ali's practice encompasses restructuring and privatisation; he jointly leads the department with Jonathan Ngee Song Law and Norhisham Abd Bahrin .
Other key lawyers:
‘Strong team in relation to advice and the preparation of the Islamic finance documentation and transaction.’
‘NorHisham Abd Bahrin – passionate and willing to go the extra mile in assisting the client in terms of legal advice.’
‘Azmi & Associate provides good legal advice, has excellent service and is punctual in delivering the work. The lawyers are bright and pleasant to work with.’
‘Quality is never compromised despite tight deadlines.’
‘Collectively they work on sharing their experiences into what will be the most applicable to their current client. Exchanging thoughts and ideas, advising appropriate legal practices based on our needs. Very well versed in their field, their willingness to attend to our calls, email etc.’
Turkish Aerospace Industries Inc
Foot Locker Inc
Rock AI Ltd
Ancom Logistic Berhad
Pitahaya (M) Sdn Bhd
National Film Development Corporation Malaysia (FINAS)
Ficus Venture Capital Sdn Bhd
Credit Investment Bank
SME Corporation Malaysia
Duopharma Biotech Berhad
Zikay Resources (M) Sdn Bhd
Terengganu Incorporated Sdn Bhd
UMW Corporation Sdn Bhd
UDA Dayaurus Sdn Bhd
Perbadanan Nasional Berhad
MBI Modal Sdn Bhd
GA Peninsular Capital Ltd
Malaysian Global Innovation & Creativity Centre
Tasik Bayu Sdn Bhd
Intres Capital Partners Sdn Bhd
Pelaburan Hartanah Berhad
Orpheus Capital Sdn Bhd
Dagang Nexchange Berhad
Padiberas Nasional Berhad
MyClass Technologies Sdn Bhd
FWD Takaful Berhad
Ekuitas Sdn Bhd
UMW Industries (1985) Sdn Bhd
Foodle Sdn Bhd
Elmu Education Group Sdn Bhd
ShineWing TY Teoh PLT
Malaysia Venture Capital Management Berhad
Export-Import Bank of Malaysia
Warisan Quantum Management Sdn Bhd
Westfield Star Sdn Bhd
Celcom Axiata Berhad
Icon Consulting – Group Pte Ltd
Sapura Resources Berhad
Sapura Technics Sdn Bhd
Bird & Bird ATMD LLP
Perusahaan Otomobil Kedua Sdn Bhd
Malaysia > Shipping Tier 3
Led by Philip Teoh, Azmi & Associates' shipping team is regularly instructed on contentious and non-contentious matters across admiralty, insurance and reinsurance, transport, and logistics sectors. Teoh also acts as an arbitrator in major shipping disputes.
‘Mr Teoh is an experienced practitioner.’
‘Philip Teoh and his team are extremely effective lawyers, responsive, pro-active and technically superior.’
‘Philip Teoh is an exceptional admiralty and shipping lawyer. To me, he is the leading authority in this area and a highly likeable personality as well.’
Azmi & Associates > Firm Profile
The firm: Azmi & Associates is a fully fledged Malaysian corporate and commercial law firm which has been actively involved in undertaking various legal assignments, including those involving mergers and acquisitions, oil and gas, energy, capital and debt markets, banking and finance transactions (both Islamic and conventional), intellectual property, civil litigation, alternative dispute resolution, corporate conveyancing, compliance, aviation, shipping, maritime, logistics, employment and labour, restructuring and insolvency.
Clients range from small and medium enterprise companies to public listed companies and foreign multinationals. The firm is now in its second decade of service – having grown from 11 lawyers to its current strength of 70 lawyers, comprising 17 partners and 53 associates and assisted by an additional 15 trainee lawyers and 80 qualified and trained support personnel.
The firm is headquartered in Kuala Lumpur and has branch offices in Johor Bahru and Singapore. The firm has expanded to include a China desk, comprising bilingual Mandarin-proficient lawyers. The team is diverse, multi lingual, internationally trained with a modern outlook and proactive approach.
Azmi & Associates’ global reach is further enhanced by its other international alliances, among which is the TerraLex network comprising 17,000 lawyers across more than 100 jurisdictions, Asean Plus Group and First Law International.
The strong support of clients for the innovative work and responsive service of the firm’s commercially savvy lawyers has earned the firm accolades and global recognitions on international legal directory listings and publications, such as Asian Legal Business, The Legal 500, Chambers Global and IFLR1000. The firm is ranked as the eighth largest law firm in Malaysia.
Areas of practice: Azmi & Associates’ starting point is the commercial goals set for each project.
The firm’s pragmatic and outcome-focused lawyers combine strong technical legal skills and sound industry experience with a commercial and innovative approach to clients’ business needs. The firm works closely with clients to assist in all legal aspects of projects, from simple transactions to large, complex development projects.
The firm understands issues from all perspectives, having advised and worked with major private and public sector clients across a wide range of business focuses. Among its significant clients are: developers, construction companies; leading financial institutions and firms, banks and lenders; investors and property agents; major multinational corporations; federal, state and local government bodies.
Azmi & Associates offers deep sector-specific knowledge and a wealth of experience to its clients, in the most cost-effective manner. By providing clients with lawyers equipped with great depth and breadth of industry experience, the firm is able to deliver seamless services quickly and efficiently while focusing on key commercial aspects of the deal and communicating effectively with clients.
Key areas of practice: mergers and acquisitions, Islamic banking, financial services and banking, capital and debt markets, venture capital/private equity, litigation and alternative dispute resolution, inbound and outbound investments, intellectual property, information technology, communication and media, data protection, pharmaceutical/life sciences, energy/renewable energy, oil and gas, mining and natural resources, real estate and property-related ventures, infrastructure, projects and concessions, construction, fundraising and debt restructuring, competition law, project finance, insurance, international trade, admiralty and shipping, transportation and logistics, employment and labour, industrial relations, wealth management/succession planning, trust/endowment, compliance, China-related works, aviation, anti-trust.
|Foreign investment||Dato' Azmi Mohd Ali|
|Foreign investment||Sharizan bin Sarif|
|Foreign investment||Justin Dominic Wong|
|Antitrust and competition||Mohd Rasheed Khan|
|Aviation||Norhisham Abd Bahrin|
|Aviation||Ahmed Ezzedin bin Mohammed|
|Banking and finance||Ahmad Lutfi bin Abdull Mutalip|
|Banking and finance||Farhah Hayati Mamat|
|Capital markets||Serina Abdul Samad|
|Capital markets||Moo Eng Thing|
|Compliance/regulatory||Norhisham Abd Bahrin|
|Islamic finance||Ahmad Lutfi Abdull Mutalip|
|Islamic finance||Farhah Hayati Mamat|
|Islamic finance||Ahmad Syahir Yahya|
|Employment and industrial relations||Melinda Marie D'Angelus|
|Employment and industrial relations||Mohd Rasheed Khan|
|Energy and natural resources||Mohd Rasheed Khan|
|Energy and natural resources||Dato' Azmi Mohd Ali|
|Shipping/insurance||Melinda Marie D'Angelus|
|Intellectual property||Khairul Fazli Abdul Kadir|
|Intellectual property||Azarith Sofia Aziz|
|Arbitration||Azlan bin Sulaiman|
|Arbitration||Raja Ahmad Mohzanuddin Shah|
|Corporate/M&A||Dato' Azmi Mohd Ali|
|Corporate/M&A||Rosinah Mohd Salleh|
|Litigation and dispute resolution||Raja Ahmad Mohzanuddin Shah|
|Litigation and dispute resolution||Abu Daud Abd Rahim|
|Mr Norhisham Abd Bahrin||Partner||View Profile|
|Mr Mohd Farizal Abd Ghafar||Partner||View Profile|
|Mr Abu Daud Abd Rahim||Partner||View Profile|
|Mr Khairul Fazli Abdul Kadir||Partner||View Profile|
|Ms Serina Abdul Samad||Co-Deputy Managing Partner||View Profile|
|Mr Ahmad Lutfi Abdull Mutalip||Managing Partner / Head, Global Financial Services & Islamic Banking||View Profile|
|Mr Mohd Sallahudin Abdullah||View Profile|
|Mrs Melinda Marie D'Angelus||Partner||View Profile|
|Ms Natalia Izra Dato' Nasaruddin||Partner During the tenure of her career, Natalia has acted as counsel…||View Profile|
|Ms Hanizah Huzin||Among the significant work that Hanizah has attended to were the following:…||View Profile|
|Mr Jonathan Law||Partner||View Profile|
|Ms Sheh Ting Lim||Lim Sheh Ting is a Senior Associate 2 at Azmi & Associates. She is…||View Profile|
|Mrs Farhah Hayati Mamat||Partner||View Profile|
|Ms Suhara Mohamad Sidik||Suhara has close to 10 years of experience in corporate and commercial,…||View Profile|
|Dato Azmi Mohd Ali||Prof (A) Dato’ Azmi Mohd Ali is the Senior Partner of Azmi…||View Profile|
|Mr Haji Mohd Rasheed Khan Mohd Idris||Senior Counsel Haji Rasheed also worked in the offices of Shell International,…||View Profile|
|Mr Zuhaidi Mohd Shahari||Partner||View Profile|
|Ms Nur Ajeeerah Mustafa||Senior Associate 2 She has been involved in various assignments, amongst others-…||View Profile|
|Mr Mohd Zam Mustaman||He is currently the Senior Associate 1 cum Senior Advisor for the…||View Profile|
|Mr Muhammad Inamul Hassan Shah Norman Dunsah||Senior Associate 2 Some of Hassan Shah’s notable assignments to date are…||View Profile|
|Mr Shameer Othman||Partner||View Profile|
|Dato' Raja Ahmad Mohzanuddin Shah Raja Mohzan||Co-Deputy Managing Partner and Litigation Partner||View Profile|
|Mr Mohd Ashraf Ramli||Senior Associate 2 He has been involved in various assignments, amongst others:…||View Profile|
|Mr Sharizan Sarif||View Profile|
|Mr Jaswandar Singh||Senior Associate 1||View Profile|
|Mr Azlan Sulaiman||Partner||View Profile|
|Mr Syed Muhammad Ridza Syed Abdullah||Partner||View Profile|
|Mr Philip Teoh||He has more than 25 years’ experience in the shipping & transport,…||View Profile|
|Mrs Moo Eng Thing||Partner. She has been involved in various assignments, amongst others- Involved in…||View Profile|
|Wan Nor Nadia Wan Ramli||Senior Associate 1 She is currently attached to Global Financial Services and…||View Profile|
|Mr Ahmad Syahir Yahya||Partner||View Profile|
Staff FiguresNumber of lawyers : 70
LanguagesBengali Cantonese English Hindi Malay Mandarin Tamil
MembershipsTerralex Network ASEANPlus Group First Law International
OtherContacts : Dato' Azmi Mohd Ali (senior partner; email@example.com) Contacts : Ahmad Lutfi Abdull Mutalip (managing partner; firstname.lastname@example.org)
Client: Ingress Group of Companies
Testimonial: “The relationship between Ingress Group of Companies and Azmi & Associates can be traced back to as early as 2001. Despite the modest set-up, Dato Azmi managed to provide in-depth advisory services and documentations on corporate issues. With his experience and knowledge coupled with a reliable due diligence team, Ingress Group managed to acquire a foreign company without much hassle and the transaction was completed within the agreed time line. This marked the start of beneficial relationship between Ingress and the Firm. Dato Azmi has proven until now that he is easily accessible even with short notices. The quality of advices given and the legal opinions rendered has been, until now, remain the key factor that distinguishes the Firm from other legal firms in Malaysia. Being a member of TerraLex, cross border transactions have become much easier for Ingress where legal or regulatory issues of foreign jurisdiction are adequately addressed in a timely manner. The virtues and traits of the Firm during its early set up have been successfully inculcated to the current partners and lawyers of the Firm. These merits have been the key considerations for Ingress to keep engaging the Firm to be its main legal advisor.”
Client: Abu Bakar Isa Ramat, Vice President/Chief Counsel
Company: Global Ventures Holdings Berhad
Testimonial: “My team and I have had the pleasure of collaborating with Dato Azmi and his team over a number of corporate and commercial transactions these past years. I have discerned that Dato Azmi is a lawyer with deep experience in a broad range of practice areas including joint ventures, project finance, mergers and acquisitions with strategic approaches which are critical to effectively and efficiently handle the many nuances of large and complex transactions. He also leads a very strong team that is focused on client outcomes and has an excellent understanding of M&A market dynamics locally and abroad. The legal advice and support provided by them were always well considered, balanced, pragmatic and unambiguous, based on their wealth of experience in dealing with a broad range of clients and transactions. I applaud the legal firms client-centric approach and responsiveness, and I find that they are easy to deal with whilst adhering to their fee agreement with us. I would highly recommend Messrs. Azmi & Associates for corporate and commercial works”
Press Releases29th January 2019
Azmi & Associates is pleased to announce the promotion and hiring across the firm of fourteen (14) lawyers as mentioned below, five (5) to Senior Associate 1, eight (8) to Senior Associate 2 and one (1) admission as an Associate, with effect from 7th January 2019, as a part of the firm’s recognition and appreciation of the efforts, growth and development of its members.
4th January 2019 Azmi & Associates is pleased to announce the appointment of Sharifah Sazita Syed Hamzah as its new partner of the Firm’s Infrastructure, PPP and Project Finance (IPPF) Practice Group, in line with the Firm’s growth strategy and continued expansion.
22nd November 2018
Azmi & Associates is pleased to announce that it is the first law firm in Malaysia to have been granted a licence by the Bar Council of Malaysia to employ Pierre Brochet as Foreign Qualified Lawyer. Pierre is qualified to practice as a Solicitor of the Senior Courts of England and Wales and as an Avocat before the French (Paris) Bar.
13th November 2020 Azmi & Associates is pleased to announce the appointment of Mohd Zam Mustaman as its new Senior Associate cum Senior Advisor for the Johor Bahru office. Mohd Zam has immense experience in the corporate and legal sector. Mohd Zam graduated with LL.B (Hons.) from the University of Wales at Cardiff in 1989 and was called to the Malaysian Bar and admitted to the roll of Advocates and Solicitors in 1993. He is also registered as a Licensed Company Secretary (LS 0009020-2006).
18th November 2020
Azmi & Associates is pleased to announce the appointment of Mahadi Abdullah as the Firm’s Oil & Gas Industry Advisor with effect from 9 November 2020. His appointment is in line with the Firm’s strategic decision to build up our Oil & Gas Practice Group.
6th January 2021 Dear valued clients, business associates and friends, Azmi & Associates is pleased to announce the appointment of Mohd Farizal Farhan Abd Ghapar and Mohd Sallahudin Abdullah as its new partners with effect from 16 December 2020
25th January 2021 Dear valued clients, business associates and friends, Azmi & Associates is pleased to announce that two (2) of our Partners, Zuhaidi Shahari has been appointed as a member of the Audit Committee of InvestKL whilst Philip Teoh has been appointed as a member of the Expert Panel Committee by the Malaysia Competition Commission (“MyCC”).
1st April 2021 Shipping is directly driven by global economic growth and the need to carry goods internationally. Global economic growth directly influences international trade which in turn directly affects shipping and growth in seabourne trade volumes ( which directly measures demand for shipping, port and logistics services). Shipping is the most commonly used mode of transport in international trade, carrying some 85 per cent of the total transport volume1.
9th April 2021
7th May 2021
Azmi & Associates is pleased to announce that our Co-Deputy Managing Partner, YM Raja Dato’ Ahmad Mohzanuddin Shah Raja Mohzan has been appointed as a member of the Asian International Arbitration Centre (AIAC) Advisory Council for a two-year term, effective 1 April 2021.
22nd November 2021 John Vercoe has been granted a registration by the Bar Council of Malaysia to be employed as Foreign Lawyer in Malaysia. Azmi & Associates is the first Malaysian legal firm to be issued with a license to hire Bar Council approved foreign lawyers. To date we have two (2) UK qualified foreign lawyers under this scheme and both are licensed to advise UK law in Malaysia.
Legal Developments3rd November 2020 The recent outbreak of the novel coronavirus, Covid-19, has put much of the world at a standstill, with new cases reported by the day and the death toll rising rapidly. Unsurprisingly, the support services industry, especially the travel, tourism, and hospitality sectors, are a few of the industries which are severely impacted by the Covid-19 outbreak.
3rd November 2020
On 11 March 2020, coronavirus (“COVID-19”) was officially declared a pandemic by the World Health Organisation (“WHO”).1 COVID-19 has, since December 2019, infected more than 167 countries and over 203,000 individuals worldwide. The wide spread of COVID-19 has caused global alarm and in the effort to minimize the threat of this pandemic, many countries have advocated and promoted social distancing. We have also witnessed a few countries announcing and imposing “lockdown” to impede the spreading of COVID-19.
5th November 2020
As the world struggles to combat the COVID-19 (Coronavirus) pandemic, employers around the globe are allowed to collect personal data of employees such as their travel history to prevent the spread of the virus at the workplace. In Malaysia, the Ministry of Human Resources has issued a Frequently Asked Questions (FAQ'S) on Movement Control1 on 24 March 2020. Under the FAQ's, the employers in the essential service sectors are required to provide a body temperature monitoring device and take a daily recording of their employees' body temperature.
5th November 2020
In light of the coronavirus pandemic, millions of people around the globe had been forced to work from home. The use of video conferencing tools such as Zoom and Skype has increased significantly as both businesses and individuals relied on the platform to conduct meetings. In the past few months, the daily users of video conferencing tools such as Zoom surged from 10 million in December 2019 to 200 million in March 20201.
5th November 2020
On 10 April 2020, the Government of Malaysia decided to extend the Movement Control Order ("MCO") by another 14-days to 28 April 2020. This is the second extension to the MCO, which was originally imposed for a two-week period from 18 March 2020 to 31 March 2020, and was extended to 14 April 2020.1
5th November 2020
Shortly after the announcement of the PRIHATIN stimulus package worth RM250 billion, the Government announced today that additional measures will be taken to help Malaysian Small and Medium Enterprises (‘SMEs') cope with the economic effects of the COVID-19 pandemic and Movement Control Order (‘MCO'). The additional measures are as follows: -
5th November 2020
The sudden and deadly COVID-19 pandemic has led to lockdowns across the globe in an effort to stymy the spread of the virus. The unfortunate side effect of this necessary life-saving measure is a near standstill of business activity within affected countries. This article will look at Malaysian tax relief efforts and consider what else might be done to lessen the effects of the impending global recession.
5th November 2020
In recent years, the Malaysian Government has attempted to enhance the utilisation of renewable energy (“RE”) which aims to conserve the non-renewable sources from being depleted and to ensure the sustainability of energy supply. RE is included in the Fifth Fuel Policy which was implemented under the 8th and 9th Malaysia Plan as the fifth component along with hydro, coal, gas and oil.1 Currently, the recognised sources of RE in Malaysia are biogas, biomass, small hydropower and solar photo-voltaic (“PV”).2 Unlike the aforementioned RE, wind energy has yet to be approved as a source of the nation’s RE, as will be elaborated further below.
5th November 2020 In the survey conducted by 500 Startups, a global venture capital firm, on the members of the startup investor community, majority of investors suggested that COVID-19 will have a negative or somewhat negative impact on early-stage investment activity in 2020. Most of the investors also believe that the impact could last between one and two years.
5th November 2020
The world of work is being profoundly affected by the global virus pandemic. In addition to the threat to public health, the economic and social disruption threatens the long-term livelihoods and wellbeing of millions. This unprecedented event has led several business owners to make the critical decision of laying off employees in an effort to ensure sustenance of the business. Low-income workers in the formal and informal sectors are the most vulnerable in this economic shock. In light of the COVID-19 outbreak followed by the implementation of the MCO by the government, employers are now faced with a massive challenge to strike a balance between sustaining the business and providing employees with security of tenure.
9th November 2020 Introduction In the first quarter of 2020, we have witnessed an unprecedented catastrophe that strikes the global economy. The whole nation is now suffering from COVID-19 pandemic which has taken lives of thousands across the world. This great trepidation that is afflicting all of humankind has simply caused an economic downturn for businesses specifically on small and medium-sized enterprises (“SMEs”) and micro businesses/entrepreneurs. Due to this pandemic attack, the Malaysian government via Bank Negara Malaysia (“BNM”) has introduced some bold measures to help, among others, the SMEs and individuals to cushion the aftermath impact of COVID-19 outbreak and in the light of Movement Control Order (“MCO”) that has been imposed from 18 March 2020 until 14 April 2020.
9th November 2020
The COVID-19 Pandemic ("the Pandemic") still rages unabated in April 2020, affecting lives, businesses, individuals and industries worldwide.
9th November 2020
Tesco PLC ("Tesco") recently announced that it has agreed to sell its businesses in Thailand and Malaysia to Charoen Pokphand (CP) Group entities for a value of USD10.6 billion ("Tesco deal"). However, the Tesco deal in Thailand can only be completed once it has obtained prior clearance from the Trade Competition Commission ("Commission"), Thailand's competition authority tasked with enforcing the provisions of the Trade Competition Act (2017) ("TCA").
COVID-19: Rescheduling or Restructuring of Financing/Loan Facilities with Banking & Financial Institutions9th November 2020 Introduction
The current global economic continues to reel from uncertainties over the worsening coronavirus (COVID-19) outbreak. Amidst severity of COVID-19 pandemic in Malaysia, many banking and financial institutions in Malaysia have expanded assistance for their customers to help them ride out the adverse economic effect. The assistance is necessary as many businesses are severely affected especially after the Government of Malaysia (“Government”) has imposed the Movement Control Order (“MCO”) starting from 18 March 2020 until 31 March 2020 (subject to any further extension period by the Government).
11th November 2020 At the time of writing, Malaysia is entering the second phase of lockdown due to the widespread pandemic of COVID-19. Embattled Malaysian Prime Minister Tan Sri Muhyiddin Yasin announced the Restricted Movement Order from 18 March 2020 until 14 April 2020 (“COVID-19 Lockdown Order”). It may be further extended too.
11th November 2020 The coronavirus disease, COVID-19, has taken the world by storm when the outbreak was first discovered in December 2019. In roughly 4 months, COVID-19 has affected almost all countries and territories in the world including Malaysia which is now under a Restriction of Movement Order (“RMO”) until 14 April 2020, following the recent spike in COVID-19 cases in the nation.
12th November 2020 Introduction In an effort to pave the way towards a more sustainable and green future, the Government of Malaysia (“Government”) in 2018 announced a target for the country to increase renewable energy in its energy generation mix to twenty percent (20%) by the year 2025. In carrying out this agenda, one of the key renewable energy sources focused on by the Government is solar energy. In this article, we explore the regulatory framework and the developments surrounding the solar energy industry in Malaysia.
12th November 2020
On 16 March 2020, the Prime Minister of Malaysia, had announced the imposition of a fourteen (14) days movement control order ("MCO") from 18 March to 31 March 2020 nationwide to curb the spread of the COVID-19 infection in Malaysia.1 Subsequently on 25 March 2020, the Prime Minister further announced that the MCO is to be extended to 14 April 2020.2 This MCO is enforced under the Control and Prevention of Infectious Diseases Act 1988 and the Police Act 1967, and encompasses, among others, the closure of all government and private premises except those involved in essential services (water, electricity, energy, telecommunications, post, transportation, irrigation, oil, gas fuel, lubricants, broadcasting, finance, banking, health, pharmacy, fire prevention, prisons, ports, airports, security, defense, cleaning, food supply & retail).
12th November 2020
In October 2019, research and consultancy firm Oxford Economics expected the number of mergers and acquisitions (M&A) transactions in Malaysia to increase up to 221 deals in 2020, from an expected 218 deals in 2019. It was also observed and anticipated that Malaysia may be a beneficiary of the change in supply chains arising from the trade tensions between the US and China due to Malaysia's open trading economy.
12th November 2020 The world is reeling from the on-going effects of the COVID-19 pandemic with the consequential effects of lockdowns and restricted movements choking businesses and economic activities. All of these are likely to have a major impact on target companies and their businesses with more counterparties to the target companies looking to suspend, terminate or even cancel contractual commitments, orders and funding arrangements which pose major challenges to Sellers and Buyers looking to sell, acquire or complete M&A transactions.
12th November 2020 Introduction On 11 March 2020, the World Health Organization (“WHO”) declared the COVID-19 outbreak as a pandemic. Until today, COVID-19 has affected 203 countries and territories around the world and 2 international conveyances (Diamond Princess cruise ship and MS Zaandam cruise ship). In order to stop the spread of COVID-19 virus, a nationwide movement control order has been implemented in Malaysia effective from March 18 to April 14. Notably, not only the government of each country has set up protection measures, many pharmaceutical companies and research laboratories around the world are working at full tilt on vaccine clinical trials. If these clinical trials are successful in other countries, Malaysia may consider to import vaccine from other country(ies) to treat its patients. This article will solely focus on the legal requirements and procedures of vaccine importation into Malaysia.
12th November 2020
The IHS Markit Malaysia Manufacturing Purchasing Managers' Index - a performance indicator of the manufacturing sector - dropped to 48.4 in March 2020 from 48.5 in February 2020, reflecting a decline in the performance of Malaysia's manufacturing sector.1 The COVID-19 global pandemic has placed companies in the manufacturing industry in a precarious position, with government restrictions causing disruptions to operations and the supply chain ecosystem. In this article, we talk about how to navigate the legal risk arising from such disruptions.
12th November 2020
Malaysians were frustrated about the news on several individuals' failure to disclose vital information related to COVID-19 to the relevant authorities during medical examinations.
13th November 2020 1. Introduction 1.1 While the verdict of Dato’ Seri Najib Razak’s (“DSNR”) criminal trial on various charges relating to SRC International was handed down in the last week of July 2020, tax professionals are looking at the tax recovery action against the former Malaysian Premier.
17th November 2020 Introduction
The COVID-19 pandemic is creating significant health, social and economic challenges worldwide. The impact of this outbreak has raised many concerns in Malaysia especially for Small and Medium-sized Enterprises ("SMEs") as there is a real risk of insolvency since business is limited due to the closure of premises during the Movement Control Order imposed by the Malaysian Government. It is vital to ensure the sustainability of SMEs as they play an important role in the development and growth of the Malaysian economy.
In light of the recently announced Economic Stimulus Package as well the Second Stimulus Package, steps were introduced to further alleviate the burden of this pandemic on SMEs. The initiatives taken by the Malaysian Government, among others, are as follows: -
(a) Special Relief Fund in the form of working capital;
(b) Wage Subsidy Programme to employers for the period of three (3) months to retain their employees earning RM4,000.00 and below;
(c) Restructuring and rescheduling of employer's contributions for Employees Provident Fund;
(d) Suspension of income tax payments for a period of 3 months;
(e) An automatic 6-month loan repayment moratorium; and
(f) Tax waiver/discount to assist SMEs with their cash flow issues.
Although a comprehensive package has been introduced by the Government to assist SMEs cope with the crisis, however, SMEs may require a more in-depth survival kit to sustain their businesses in the aftermath of this outbreak in order to avoid facing insolvency proceedings by their creditors.
Corporate Rescue Mechanisms
The Companies Act 2016 ("CA 2016") provides Corporate Rescue Mechanisms in Part 3, Division 8, to rehabilitate the business and finances of distressed companies in order to avoid liquidation, namely, Corporate Voluntary Arrangement and Judicial Management.
A. Corporate Voluntary Arrangement ("CVA")
The CVA mechanism provides an option for companies to enter into a restructuring agreement with its creditors. This mechanism is encouraged for companies that prefer minimal Court intervention as it is cost-effective and time-saving. However, Section 395 of the CA 2016 provides that this mechanism is only limited to private companies with no secured debt. This would mean that the CVA mechanism is not an option for SMEs who have loans which carries a charge over its property.
CVA requires the company to appoint a Nominee, who is a qualified insolvency practitioner to assess the company's statement of affairs. The Nominee will then give his opinion on whether the proposed voluntary arrangement has a reasonable prospect of being approved and implemented, whether the company is likely to have sufficient funds available during the moratorium period and whether meetings should be held to consider the proposal.
Although the Court is not involved in this mechanism, but an interested company is required to file forms and documents in Court after they receive a positive opinion from the Nominee. Upon filing of the application and relevant documents, the company enjoys 28 days of automatic moratorium which can be further extended for a total of 32 days (maximum period of 60 days in total).
The CVA mechanism requires more than 50% of members' approval and the approval of 75% in value of creditors present and voting, wherein the said meeting must be done within the period of 28 days of the moratorium. Once the proposal is approved, it is binding on all the creditors and its members, regardless of their vote.
B. Judicial Management ("JM")
The JM mechanism is supervised by the Court and essentially places the management of the company's business, affairs and property into the hands of an appointed ‘Judicial Manager'. The Judicial Manager has the responsibility to prepare a potentially successful restructuring scheme for the financially distressed company.
JM is available to companies who are insolvent or facing insolvency. However, this rescue mechanism is not applicable to a company which is subject to the Capital Markets and Services Act 2007, otherwise known as public listed companies, as provided in Section 403 of the CA 2016.
In order to successfully obtain a JM order, the Court must be satisfied that the scheme presented assures there are viable prospects of rehabilitating the company's finances and operations and that the interests of the creditors are met. Upon filing of the JM application in Court, an automatic moratorium takes place on all legal proceedings filed against the company.
If the JM order is granted, the said order shall remain in force for a period of six (6) months and further extended for another six (6) months. The Judicial Manager then has to put forward statement of proposals to the company creditors within 60 days or a longer period as allowed by the Court.
The proposal requires the consent of 75% of the total creditors present and voting at the creditors meeting. If the proposed plan has been approved, it becomes binding on all the creditors, whether or not they have voted in favour of the proposal. If it is rejected by the creditors, the Court may discharge the JM order and revert the original status of the company.
SMEs will benefit from using this rescue mechanism because every party involved is safeguarded. Employers do not have to wind up their company, employees are able to keep their jobs and receive their salaries and creditors are able to recover their debt from the company.
Other Available Options
One of the other available options is a pre-bankruptcy rescue mechanism, otherwise known as a ‘voluntary arrangement' which is an option for the owner of the small business to rearrange his debts with his creditors before he becomes bankrupt. This is pursuant to the Insolvency Act 1967 ("IA 1967"). However, Section 2B of the IA 1967 provides that this arrangement is not applicable to an undischarged bankrupt and a limited liability partnership.
In order for the debtor to initiate this mechanism, he must appoint a Nominee to supervise the implementation of the arrangement and must apply to the Court for an interim order. If satisfied, the debtor shall use the order as a moratorium against all legal proceedings, including bankruptcy proceeding. The interim order is valid for a period of 90 days only from the date of the order and shall not be extended.
This mechanism still requires the creditors to approve the debtor's proposal for a voluntary arrangement during the 90 days period and if the proposal is rejected by the creditors, the Court may set aside the interim order.
Another option available to SMEs is to restructure the companies by way of Scheme of Arrangement (SOA) based on section 366 of the CA 2016, which is a Court facilitated process. The Court may appoint an approved liquidator to assess the genuineness of the scheme proposed by the company. Similar to the other mechanisms, it requires 75% approval from the creditors and members of the company. Subject to meeting all the requirements for an order, a Court order restraining the creditors from taking any legal proceedings can be obtained while the proposal is being discussed.
SMEs and other companies may also opt the platform provided by Bank Negara Malaysia, known as Corporate Debt Restructuring Committee, wherein the Committee will assist the company to enter into a debt restructuring agreement or any other debt resolutions with its financier (but not with other creditors), without having to proceed with legal proceedings against the company.
With a rise in the number of SMEs seeking government assistance to stay afloat amidst the outbreak, the demand for more legal solutions to address SMEs cash flow issues has increased. We hope the abovementioned options would benefit and assist SMEs during this difficult time and please reach out to the team if there is any way we can assist on this.
Prepared by: Melinda Marie D'Angelus, Hanani Hayati Mohd Adhan & Dimetria Rinesha Samuel
17th November 2020
The COVID-19 pandemic still rages unabated in April 2020, ravaging and affecting lives, businesses, individuals and industries worldwide in many ways that will change the world forever1. The International Labour Organization predicts that as many as 25 million jobs worldwide could be wiped out by a worldwide recession brought about by the pandemic2.
In many countries, governments imposed "lockdown" to restrict the movements of its citizens and to control the rapid spread of the pandemic. The lockdown was implemented throughout the countries in South East Asia countries in stages:
(a) Malaysia: The Malaysia Government announced a national lockdown on Mar 18, 2020, by issuing the Movement of Control Order (Restricted Movement) initially until 31st Mar 2020, but extended to 14th Apr 20203. Specific exceptions have been given to transportation and some other essential service sectors4.
(b) Indonesia: The Indonesia Government on 15th March 2020 formed the National Disaster Relieve Agency (BPNP) and declared National Disaster - Non-Natural situation until 29th May 2020 and request all citizen to work, study and pray from home with all government official work from home effectively5.
(c) Singapore: On 3rd April 2020, Singapore announced ‘circuit breaking' measures an euphemism for lockdown6. Earlier measures implemented included trade measures such as7 the Maritime and Port Authority of Singapore has started temperature screening at all sea checkpoints, including ferry and cruise terminals, PSA terminals and Jurong Port for inbound travellers. It has also taken additional precautionary measures such as prohibiting shore leave for personnel in Chinese ports, mandatory temperature checks, keeping a log of crew movements and restricting staff travel to China, among others8.
(d) Thailand: Thailand's lockdown operates until 30 April 20209.
(e) Philippines: President Rodrigo Duterte's lockdown came five weeks after the first case was discovered, and the declaration of a State of Emergency on March 25, bestowed on him extraordinary powers10.
As the pandemic raged worldwide, the plight of the passengers and crew on board Cruise Ships and the Cruise Industry came into stark focus.
The Cruise Ships, with large numbers of passengers and crew and emphasis on communal dining and group activities, became incubators of the COVID-19 virus and infections on ships like the Diamond Princess with over 600 infections have been described as floating nightmares11.
The Diamond Princess operated by Princess Cruise Lines departed from Yokohama on 4 February 2020 for a round trip cruise. On 20 January 2020, an 80-year-old passenger from Hong Kong, embarked in Yokohama, and disembarked in Hong Kong on 25 January. On 1 February, six days after leaving the ship, he visited a Hong Kong hospital, where he tested positive for COVID-19.
The ship was due to depart Yokohama for its next cruise on 4 February, but announced a delay the same day to allow Japanese authorities to screen and test passengers and crew still on board. On 4 February, the authorities announced positive test results for SARS-CoV-2 for ten people on board, the cancellation of the cruise, and that the ship was entering quarantine, affecting a total of 3,700 passengers and crew. By late March it was stated that 712 of 3,711 people on the Diamond Princess, or 19.2% had been infected by COVID-1912.
From 15 March 2020, Australia banned cruise ships arriving from foreign ports. However, exemptions were granted to allow four ships, already en route to Australia, to dock and disembark its passengers. On 19 March 2020, the Ruby Princess, which was one of the four ships given the exemption, docked in Sydney, after a cruise to New Zealand. The cruise ship was forced to return to Sydney early after a passenger reported a respiratory problem, but when disembarking passengers were not told that anyone on board presented any symptoms during the voyage.
Many countries in Southeast Asia banned the Cruise Ships from disembarking their passengers for fear of importing the virus through infected passengers and crew13. The Cruise Ships are often registered under Flags of Convenience e.g. Panama, the Bahamas and other countries chosen for their low wages, cheap fees and lenient health and safety regulations, and, more often than not, non existent tax regimes14.
At the time of writing there are still cruise ships with passengers and crew infected by COVID-19 seeking safe harbor. These ships often find difficulty to find countries and ports willing to receive them to disembark passengers15. Even the disembarking of passengers and crew from the infected vessels could not proceed without problem16. Each country can set conditions for entry into their Ports and many have denied entry to these ships seeking safe harbor. Many of the ships disembarked their passengers at Port Everglades, Florida after arduous attempts to call and disembark elsewhere17.
These incidents involving Cruise Ships pose the question whether the Cruise Industry can survive or recover from the effects of the pandemic18.
Many countries have responded to the pandemic by imposing lockdown or restricted movement. Retailers and manufacturers fail to pick up their cargo and containers because their warehouses are full or closed due to not being deemed essential service providers. Some ports remain open but have reduced workforce which exacerbate the cargo congestion. This causes disruption of the supply chain including movement of essential goods and foodstuffs19. The cargo and containers lying uncollected at the ports creating congestion and takes up space and capacity and hinders capacity for incoming cargo and containers20.
Some Ports have taken the precaution to declare ‘force majeure' to pre-empt claims and legal liability21. The closure of Ports and Port congestion have caused disruptions in the supply chain and import and exports.
The pandemic has exposed the fragility of the global supply chains and brought into acute focus the shortages of critical medical components needed in the fight against the pandemic22.
Wuhan and China in general were important manufacturing bases for manufacturing of key components for companies like Apple23. The pandemic lockdown and measures taken stopped manufacturing of crucial component items and disruption of supply chain24. When the manufacturing Countries ravaged by the pandemic find it hard to provide adequate medical care due to shortages of critical medical equipment such as ventilators, protective masks and other gear25. This has caused the rise of infections and spread of the COVID-19 virus.
In the US which is now one of the Centres of the pandemic, President Trump has asked American manufacturers to manufacture ventilators to make up the acute shortages faced by the American hospitals26.
The U.S. shortage has multiple causes, including problems with the global supply chain. Before this pandemic, for instance, China produced approximately half the world's face masks. As the infection spread across China, their exports came to a halt. Now, as the infection spreads globally and transmission in China slows, China is shipping masks to other countries as part of goodwill packages. The United States has not been a major recipient27.
The Philippines, China, India, Indonesia are among the biggest suppliers of crew members. According to one report, the pandemic has caused some 40,000 Indian crew serving on merchant and cruise ships to be stranded worldwide28.
Airline and port restrictions in most of these countries have made it nearly impossible for crew members to get home if the governments do not make special arrangements. Even if a ship reaches an open port, the crew members may still be out of luck because most international air traffic is grounded29.
The safe repatriation of the crew from the vessels will require the joint efforts of the governmental agencies, the crew manning agency and the owners30.
The Insurance implications arise from the disruption of shipping, logistics due to the pandemic.
Cargo owners, importers, risk managers and insurers need to monitor closely: (a) Accumulation of Cargo; (b) Delay; (c) Delay Clause; (d) Demurrage Charges; (e) Deviation; (f) Force Majeure; and (g) Interruptions in Transit.
The insurance implications of the disruption include31: -
(a) Cargo and stock throughput - expected limited workforce being available at all key points of the supply chain will reduce capacity to distribute and handle goods. Cargo is also envisaged to be held for a longer duration at ports and for storage locations to see a volume increase whilst stocks await their next destination.
(b) These areas raise the limitations of cover of the normal marine cover:
- Delay – although many will want to keep their cargo moving to prevent any obstacles on trading, delay during the ordinary course of transit or whilst the goods are in storage could soon be inevitable. Most cargo and stock throughput policies exclude loss or damage solely caused by delay.
- Additional costs/charges – hold-ups or re-routing goods to an alternative destination due to government prohibition will incur an additional cost. Although these costs are usually sub-limited, the additional forwarding costs clause; or similar, will provide extra financial support should you experience added expenses on top of the usual outgoings.
- Vulnerable goods – perishable items such as pharmaceutical products and food produce operate on a stringent and well-monitored time schedule. The normal cover for marine insurance does not cater to the characteristics of these cargo, as insurance cover is excluded by the exclusions of inherent vice and delay, both will operate when ports are congested and cargo clearance are delayed in the current pandemic outbreak.
The disruption caused by pandemic has legal effects.
The cargo owner who charters vessels to ports to load or to discharge cargo is required to nominate a ‘safe port' i.e. a port which the vessel can safely call at, conduct cargo operations and safely leave32. When the intended port is closed, the cargo owner/charterer would be obliged to nominate an alternative port. This is often not possible as there will not be any alternative destination the cargo can be discharged at.
If the cargo is non-essential cargo, it cannot be moved to the ports during a national lockdown. This may result in the Vessel arriving at the Port and finding no cargo to be shipped, causing incurring of costly demurrage.
Before the Vessel can take on cargo, the Vessel must be cleared by the health authorities of the port, a process of obtaining ‘free pratique', i.e. that the Vessel is free of infectious disease33. In the pandemic affected countries the process of vetting the crew may take time and this delay will fall on the shipowner, rather than on the Charterer.
The effects of the pandemic may possibly be covered in the Force Majeure Clauses in some contracts but these are not uniform and will not be always be available. The disruptive effects of the pandemic will cause losses and the result in the most part will be to determine who will bear or share these losses.
While these legal issues and disputes do not immediately arise, they will certainly surface once the countries recover from the immediate effects of the pandemic.----------
1. See How the Coronavirus is reshaping Asia's borders, business and trade https://asia.nikkei.com/Spotlight/Cover-Story/How-the-coronavirus-is-reshaping-Asia-s-borders-business-and-trade
2. See Jobs Destroyed Worldwide as Coronavirus Sparks Recession: https://www.bloomberg.com/news/articles/2020-04-03/jobs-destroyed-worldwide-as-coronavirus-sparks-recession
3. Under the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967. Specific exceptions have been given to transportation and some other essential service sectors see: https://www.straitstimes.com/asia/se-asia/coronavirus-malaysia-seeks-to-clear-congested-ports-to-move-essentials-amid-curbs
7. Stefania Plama, "How Singapore Waged War On Coronavirus," The Financial Times, March 2020. https://www.ft.com/content/ca4e0db0-6aaa-11ea-800d-da70cff6e4d3
9. https://www.channelnewsasia.com/news/commentary/coronavirus-lockdown-malaysia-philippines-thailand-indonesia-sea-12589898; the lockdown had caught the migrant workforce unprepared and stranded see: https://www.aljazeera.com/news/2020/03/coronavirus-lockdown-leaves-migrant-workers-stranded-thailand-200328060111830.html
10. https://www.channelnewsasia.com/news/commentary/coronavirus-lockdown-malaysia-philippines-thailand-indonesia-sea-12589898' ;see also : https://edition.cnn.com/2020/03/17/asia/coronavirus-covid-19-update-intl-hnk/index.html
12. See McFall-Johnsen, Morgan (28 February 2020). "How the 'failed' quarantine of the Diamond Princess cruise ship started with 10 coronavirus cases and ended with more than 700". Business Insider.
13. See : https://www.thestar.com.my/news/nation/2020/03/08/malaysia-bans-cruise-ships . In the case of the Holland America Line Cruise Ship Westerdam, the Cruise Vessel allowed to call and disembark in Cambodia, there is evidence of evidence of infection in passengers who disembarked see: https://www.cnbc.com/2020/02/22/malaysia-says-american-coronavirus-case-now-tests-negative-for-virus.html
14. See Bridie Nolan writing on the case of the Ruby Princess https://www.linkedin.com/pulse/save-our-souls-catastrophe-cruising-under-flag-bridie-nolan/?trackingId=fPiSuASRD1A9LFDc7iQEfA%3D%3D
15. See Costa Fortuna, accepted by Singapore after rejected by Thailand and Malaysia: https://www.thesundaily.my/world/singapore-to-allow-ship-barred-by-malaysia-and-thailand-to-dock-AF2106002 ,
16. In the case of MS Amadea Phoenix Resen, only European crew was allowed to disembark at its port of registry at Bremerhaven : https://www.thestar.com.my/news/nation/2020/04/04/msian-duo-not-allowed-to-disembark-at-ships-port
17. As many as 120 ships carrying some 120,000 passengers were allowed to disembark, see Maritime Executive Report: https://www.maritime-executive.com/article/250-000-cruise-passengers-disembarked-in-u-s
18.See the Video Feature, Can Cruise Lines recover from Coronavirus? https://youtu.be/uDiR4Qm4O-w
19. See the disruption at the Philippines Ports see: https://www.scmp.com/week-asia/economics/article/3078166/coronavirus-philippines-cargo-containers-packed-food-pile-ports; also https://www.bloomberg.com/news/articles/2020-03-30/lockdown-leaves-thousands-of-containers-piling-up-in-manila-port
20. See the Federal Maritime Commission to address port congestion : https://www.thompsonhine.com/publications/fmc-to-address-covid-19-port-congestion-by-engaging-industry-stakeholders; directive by Malaysia's Ministry of Transport see : https://www.thestar.com.my/news/nation/2020/03/28/container-congestion-at-ports-being-eased-off; also https://www.thestar.com.my/news/nation/2020/04/03/dr-wee-freight-forwarders-hauliers-given-another-four-days-to-move-essential-goods
21. Standard P & I Club has usefully collated the Indian Position and these notices : https://www.standard-club.com/risk-management/knowledge-centre/news-and-commentary/2020/03/news-indian-ports-declare-force-majeure-due-to-the-covid-19-outbreak.aspx
22. See : https://www.weforum.org/agenda/2020/03/covid-19-coronavirus-lessons-past-supply-chain-disruptions/ ; On the factors needed for the recovery of the Supply Chain see : https://www.greenbiz.com/article/what-it-will-take-china-rebuild-global-supply-chain-resilience-after-covid-19
23. The manufacturing of components of IPhone were disrupted by the Wuhan Virus lockdown. This and the earlier imposition of tariffs on China manufactured goods due to trade war has caused manufacturers like Apple to consider moving their supply chain to other countries or to move back manufacturing to home countries see: https://www.businessinsider.my/wuhan-coronavirus-apple-reliance-china-iphone-production-foxconn-supply-chain-2020-2?r=US&IR=T
25. See The New England Journal of Medicine Report: https://www.nejm.org/doi/full/10.1056/NEJMp2006141 ; also World Economic Forum : https://www.weforum.org/agenda/2020/04/covid-19-ventilator-shortage-manufacturing-solution/
27. See The New England Journal of Medicine Report: https://www.nejm.org/doi/full/10.1056/NEJMp2006141
28. The Economic Times 5 April 2020 : https://economictimes.indiatimes.com/news/politics-and-nation/about-40000-indian-seafarers-stranded-across-globe-on-account-of-lockdown-maritime-bodies/articleshow/74991612.cms?from=mdr
29. New York Times 25 March 2020 : https://www.nytimes.com/2020/03/25/world/europe/coronavirus-ship-crews-trapped.html
30. As in the case of the coordinated repatriation of the Philippines crew see Inquirer Net 5 April 2020: https://globalnation.inquirer.net/186493/nearly-1000-stranded-filipino-cruise-ship-workers-arrive-in-ph-dfa; see also https://gulfnews.com/uae/coronavirus-philippine-embassy-to-send-stranded-filipino-seafarers-back-1.70788463
31. Alert: The Impact of COVID-19 on Marine Insurance at https://www.aon.com/getmedia/0c251378-6888-4df1-82d1-062e3c11cdde/COVID-19-Impact-on-Marine-Cargo-Insurance-March-2020.aspx
33. See eg the Port Regulations of the Maritime and Port Authority of Singapore Circular No 11 of 2014 : https://www.mpa.gov.sg/web/wcm/connect/www/9755aabc-24b7-410a-9706-975f44675953/pc14-11.pdf?MOD=AJPERES
Prepared by: Philip Teoh
23rd November 2020 Introduction With the rapid development of technology and the widespread usage of the Internet over the last decade, anyone can have access to almost anything including the personal information of others. Today, the usage of the Internet is no longer confined to connecting people and conducting research, but it has become a platform for many to store information and advertise themselves and their businesses.
23rd November 2020 The New Normal: CMCO 5 On 1st of May 2020, Prime Minister Tan Sri Muhyiddin Yassin announced the implementation of the Conditional Movement Control Order ("CMCO"), with the aim of restarting a large portion of the economic sector following the Movement Control Order ("MCO"). This was subsequently gazetted under the Prevention and Control of Infectious Diseases Act 1988 ("PCIDA"). Beginning 4th of May 2020, companies/businesses from almost all sectors of the economy are allowed to operate subject to conditions under the CMCO.
23rd November 2020
Section 42 of the Income Tax Act (“ITA 1967”) allows businesses to lower their tax burdens by claiming allowances for capital expenditures incurred for the purpose of business – the Initial Allowance (“IA”)1 and Annual Allowance (“AA”)2 are perhaps the most widely applied of such allowances.
23rd November 2020
The International Labour Organization (“ILO”) Forced Labour Convention (No. 29) defines forced labour as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. According to ILO, various indicators can be used to determine whether a situation constitutes forced labour e.g. restrictions on workers’ freedom of movement, withholding of wages or identity documents, physical or sexual violence, threats and intimidation or fraudulent debt from which workers cannot escape.1 This article will give a brief overview of the legislative and regulatory environment relating to forced labour in different countries, especially in the context of business operations and supply chains.
23rd November 2020
In an effort to pave the way towards a more sustainable and green future, the Government of Malaysia (“Government”) in 2018 announced a target for the country to increase renewable energy in its energy generation mix to twenty percent (20%) by the year 2025. In carrying out this agenda, one of the key renewable energy sources focused on by the Government is solar energy. In this article, we explore the regulatory framework and the developments surrounding the solar energy industry in Malaysia.
The main statutory legislations that govern the renewable energy sector in Malaysia are as follows:
- Electricity Supply Act 1990 which regulates, amongst others, the electricity supply industry;
- Energy Commission Act 2001 which provides for the establishment of the Energy Commission of Malaysia;
- Renewable Energy Act 2011 which provides for the establishment and implementation of a special tariff system to catalyse the generation of renewable energy and to provide for related matters; and
- Sustainable Energy Development Authority Act 2011 ("SEDA Act") which provides for the establishment of the Sustainable Energy Development Authority Malaysia and to provide for its functions and powers and for related matters.
The authorities and bodies involved in the regulation of the renewable energy industry in Malaysia are:
- Ministry of Science, Technology and Innovation ("MOSTI") - Following the 14th General Election, the entire component of MOSTI, the energy and green technology components of the Ministry of Energy, Green Technology and Water ("KeTTHA") and the related components of Environment and Climate Change from the Ministry of Natural Resources and Environment ("NRE") were restructured and formed the Ministry of Energy, Science, Technology, Environment & Climate Change ("MESTECC"). Following the formation of the new Cabinet on 9th March 2020, MESTECC has been restructured and its name has been changed to MOSTI.
- Energy Commission of Malaysia ("EC") - EC is a statutory body responsible for regulating the energy sector in Peninsular Malaysia and Sabah with powers to regulate the energy supply activities in Malaysia.
- Sustainable Energy Development Authority Malaysia ("SEDA") - SEDA is a statutory body established pursuant to the SEDA Act. SEDA's functions include promoting and implementing national policy objectives for renewable energy and promoting, facilitating and developing sustainable energy.
Renewable Energy Policies
The main government policies driving the growth of the renewable energy sector are:
- National Renewable Energy Policy ("National RE Policy") - The National RE Policy was approved by the Cabinet in 2010 with the objectives of increasing the renewable energy contribution in the generation mix, facilitating growth of the renewable energy industry, ensuring reasonable renewable energy generation costs, conserving the environment for future generation and enhancing awareness on the role and importance of renewable energy.1
- Malaysia Energy Supply Industry 2.0 ("MESI 2.0") - In September 2019, the Cabinet approved MESI 2.0, a 10-year masterplan to transform and liberalise the energy sector. MESI 2.0 sets out to increase industry efficiency in the industry, to future-proof key processes, regulations and structure in the industry, and to empower consumers by democratising and decentralising the electricity supply industry.2 Some of the key planned reforms include doing away with Power Purchase Agreements ("PPAs") which offer guaranteed capacity and energy payments, issuing future PPAs via capacity auction and a quota of combined 100MW for renewable energy plants to sell electricity directly to consumers.
- Renewable Energy Transition Roadmap ("RETR") 2035 - RETR 2035 is a strategic roadmap developed by SEDA along with industry stakeholders which outlines, amongst others, the strategies and action plans to support and achieve the key renewable energy policies and targets in Malaysia.3 The roadmap will form part of Malaysia's 12th Malaysian Plan (2021-2025).4
Fiscal Incentives in Relation to Solar in Malaysia
With the object of promoting green technology, the Government had during the announcement of Budget 2014 introduced Green Technology Tax Incentives for the purchase and use of green technology which includes solar power and energy from the year assessment 2013 until 31st December 2020.
Further, in the announcement of the Budget 2020, the Government announced the extension of the Green Technology Tax Incentives until 2023 and introduced income tax exemption of up to seventy percent (70%) for a period of up to ten (10) years for companies which undertake solar leasing activities5. The incentives related to solar energy are respectively described below.
Green Investment Tax Allowance (GITA) for Assets
Applicable to companies that acquire qualifying green technology assets listed under the MyHIJAU Directory, the GITA for Assets incentive provides investment tax allowance for one hundred percent (100%) of qualifying capital expenditure incurred on green technology asset from the year of assessment 2013 (date on which the first qualifying capital expenditure incurred must not be earlier than 25th October 2013) until the year of assessment 2023. Under this incentive, the allowance can be offset against seventy percent (70%) of statutory income of the company(ies) in the year of assessment and the unutilised allowances can be carried forward until they are fully absorbed.6
Green Investment Tax Allowance (GITA) for Projects
The GITA for Projects is applicable to companies carrying out qualifying green technology projects for their business or for self-consumption. It provides one hundred percent (100%) income tax allowance on qualifying capital expenditure for a project from the year of assessment from the year of assessment 2013 (date on which the first qualifying capital expenditure incurred is not earlier than 25 October 2013) until 2023.
Similar to the GITA for Assets, the allowance can be offset against seventy percent (70%) of the statutory income in the year of assessment and any unutilized allowance can be carried forward until they are fully absorbed. However, projects which have been approved with Feed-in-Tariff ("FiT") for solar by SEDA are not eligible for GITA for Projects.7
Green Income Tax Exemption (GITE) for Services
Green Income Tax Exemption is granted to qualifying companies which provides green technology services which have been verified by GreenTech Malaysia and listed under the MyHIJAU Directory. The list of activities which qualify as green technology services include services related to renewable energy project such as system design and feasibility study, advisory and consultancy, testing and commissioning of renewable energy.8
This incentive provides for income tax exemption of one hundred percent (100%) of statutory income for the year assessment from the date the application was received by the Malaysian Investment Development Authority ("MIDA") until 2023. Note that applications made from 1st January 2020 will be eligible for income tax exemption of seventy percent (70%) of the statutory income for the year of assessment.
Green Income Tax Exemption (Solar Leasing)
This is a new incentive introduced through Budget 2020. It provides for a seventy percent (70%) income tax exemption of the statutory income of the company for the year of assessment for applications received by MIDA from 1st January 2020. This income tax exemption is applicable for a period of up to ten (10) years for companies undertaking solar leasing activities.
Green Technology Financing Scheme 2.0
In addition to the abovementioned tax incentives, the Ministry of Finance had, with the recommendation proposed by MESTECC, agreed to introduce the Green Technology Financing Scheme 2.0 ("GTFS 2.0"). The GTFS 2.0 is an enhanced version of the Green Technology Financing Scheme ("GTFS") which was first introduced back in 2010 to encourage the supply and usage of green technologies.
The GTFS offers financial aid to producers of green technology, users of green technology and Energy Services Companies ("ESCOs"). The Scheme is made available until 31 December 2020 or upon reaching a total financing/funding approval amount of RM2.0 billion. Further, the GTFS 2.0 scheme offers rebate of two percent (2%) per annum on interest and/or profit rate for the first seven (7) years for each financing with sixty percent (60%) government guarantee on green technology cost.
The financing amount and tenure for the respective eligible parties are as follows:
|Parties||Financing Amount (RM)||Financing Tenure|
|Producer of Green Technology||RM100 million per each group of company||Up to 15 years|
|User of Green Technology||RM50 million per each group of company||Up to 10 years|
|ESCOs||RM25 million per each group of company||Up to 5 years|
Solar Energy Programmes in Malaysia
There are various programmes and incentives introduced to promote solar energy in Malaysia. The details of each programme are elaborated below.
National Solar Photovoltaic Monitoring System ("PVMS")
First launched by SEDA in 2018, the PVMS is a real-time monitoring system of the performance and reliability of key components such as PV modules and inverters of grid-connected solar photovoltaic (PV) systems in Malaysia. The data and information derived from the PVMS also allows for the identification and analysis of any technical problems related to PV systems.9 From the valuable data extracted from PVMS, informative reports and analysis could be produced which are available upon subscription. The types of reports available for purchase are summary of energy generation, plant performance, meteorological data and irradiation data.10
PV system owners can voluntarily participate in this programme and monitor their own PV systems - PVMS devices will be installed, the cost of which will be borne by SEDA subject to fund availability, and PV owners will have full access to the PVMS webportal displaying the real-time and historical data of their PV systems.
Supply Agreement for Renewable Energy ("SARE") Programme
SARE is a tripartite agreement entered into between customer, investor/owner and the distribution licensee i.e. Tenaga Nasional Berhad ("TNB") aimed at increasing the accessibility and affordability of adopting solar PV systems by customers. Under SARE programme, the investor/owner leases the solar PV system to the customer whilst the solar energy purchase by the customer will be billed by TNB. In this arrangement, TNB's assumes the role of a contracting and billing agent. Customers pay a leasing fee to the investor/owner via TNB and in return, consumers do not have to pay the upfront cost to install the solar PV systems which makes investing in solar PV systems more affordable for customers. SARE supports and covers PPAs and Solar Leasing arrangements. To participate in the SARE programme, the investor/owner must be registered with SEDA.
Large Scale Solar ("LSS")
In an effort to reduce the Levelized Cost of Energy ("LCOE") for the development of large scale solar PV ("LSSPV") plants, the LSS, a competitive bidding programme, was introduced in 2016. The LSS programme is implemented by the EC who would invite bidders to submit their bids to build, own and operate LSSPV plants. The shortlisted bidders will subsequently enter into PPAs with TNB or Sabah Electricity Sdn Bhd ("SESB").
The bidding for the third and latest LSS round was opened in 2019 for the development of LSSPV Plants in Peninsular Malaysia for commercial operation in 2021. The third LSS round had one hundred and twelve (112) bidders offering an export capacity ranging from 5MW to 100MW.11 The announcement of the shortlisted bidders saw EC awarding a total of slightly less than 500MW in capacity to five (5) bidders which include foreign solar developers from Germany and France in consortium with local companies.
According to EC's requirements, participants intending to participate in LSS must be a local company with a Malaysian equity interest of at least fifty-one percent (51%) or a consortium of legal entities consisting of at least one local company and which has Malaysian equity interest in the consortium of at least fifty-one percent (51%). This effectively restricts foreign equity shareholding of a participant to forty-nine percent (49%).12
Feed-in Tariff ("FiT") for Solar Photovoltaic
FiT is a scheme which obliges the Distribution Licensees to buy the electricity produced from renewable resources (i.e. biomass, biogass, small hydropower and solar photovoltaic) from Feed-in Approval Holders at a prescribed FiT rate and for a specific period. Distribution Licensees ("DLs") refer to companies holding the licence to distribute electricity in Malaysia such as TNB, SESB and NUR Power Sdn Bhd ("NUR") while Feed-in Approval Holders ("FIAHs") refer to an individual or company who holds a feed-in approval certificate issued by SEDA and entitled to sell renewable energy at the FiT rate.
Through the FIT scheme, the FIAHs are entitled to various benefits such as the generation tariff payment where the producer of the electricity will be paid for the electricity produced, export tariff payment where the producer will be paid for the electricity generated and other incentives offered under the green technology and/or renewable energy programmes. The Feed-in Tariff for Solar Photovoltaic which was introduced in 2011 is however closed for registration since 2016 and the Net Energy Metering mechanism was introduced to replace the FiT for Solar Photovoltaic.
Net Energy Metering ("NEM")
NEM is a scheme whereby the energy produced from the solar PV installed will first be consumed by the consumer for his own consumption and any excess energy produced will be exported to the grid and sold to the Distribution Licensees at the prevailing displaced cost prescribed by the EC and the credit received can be rolled over for a maximum of twenty-four (24) months and net-off at the prevailing displaced cost.
Effective 1st January 2019, the displaced cost is replaced by a "one-on-one" offset basis whereby every 1kWh of exported to the grid will be offset against 1kWh consumed from the grid to manifest the true net energy metering concept ("NEM 2.0") and improve the return of investment of solar PV under the NEM. NEM is available in Peninsular Malaysia and Sabah. However, the New NEM Scheme is only applicable to TNB's customers in Peninsular Malaysia.
Generally, consumers who are registered with TNB in Peninsular Malaysia and SESB in Sabah and the Federal Territory of Labuan are eligible to apply for NEM. There is no equity restriction for any companies wishing to undertake the NEM scheme and the scheme is applicable to all domestic, commercial, industrial and agricultural sectors.13 The eligible consumers may participate in NEM through financing and third party ownership, subject to the mutual agreement between the NEM consumer and the investor.
The capacity limits for the PV system installed are as follows14:
|Sectors||Maximum Capacity of the PV System|
|Domestic/ Residential (single phase system)||12kW|
|Domestic/ Residential (three (3) phase system)||72kW|
|Commercial, Industrial and Agricultural||75% of Maximum Demand of the consumer's current installation: (a) based on the past 1 year average of the recorded Maximum Demand of the consumer's installation; or (b) the declared Maximum Demand for consumers with less than 1 year.|
A quota of 500 MW has been allocated for NEM for the period of 2016 to 2020. According to the SEDA Malaysia's 2019 Report Card issued on 4th January 2020, SEDA has approved a total of cumulative NEM programme quota of 108MW as at end of November 2019. This portrays a growth of 7.8 times increment of approved NEM quota as compared to the previous three years and is believed to be largely contributed by the NEM 2.0 programme. The Cumulative NEM approved from 2016 to 2019 is as tabulated below:
|Year||NEM Quota Approved by SEDA (MW)|
Peer-to-Peer Solar Energy Trading ("P2P")
Introduced by SEDA in 2019, the P2P energy trading programme provides a platform for producers of solar PV power ("prosumers") to sell excess power generated by them to other consumers through a retailer/grid operator (i.e. TNB), at a rate competitive to the retailer's tariff. The participating consumers under this programme would have the option of purchasing solar electricity either from the P2P or from the retailer. Under this programme, the grid operator is compensated with grid fee while the retailer operating the energy trading platform is compensated with retailer's fee.
The P2P energy trading programme is in line with the new MESI 2.0 initiative which aims at empowering customers with choices, encouraging more solar PV prosumers and enhancing customer experience through digital innovation. One can become a prosumer so long as he is a NEM holder registered with SEDA Malaysia and holds a generation license for system capacity of more than 72kW with the Energy Commission.
To test the viability of the P2P energy trading project, SEDA had in late 2019 launched the first pilot run for the P2P energy trading project for electricity across TNB's grid under the RETR 2035. Through a collaboration with Australia's Power Ledger Pty Ltd, the eight (8) month pilot which uses blockchain technology will run in two phases. The alpha phase which will commence for a period of two (2) months will test the technical operability of the programme while the beta phase which will run for a period of (6) months will witness the conclusion of commercial transactions under the P2P programme as the same will be enabled among solar prosumers and electricity consumers.
The P2P programme operates based on energy arbitrage opportunities and SEDA has recommended for a maximum arbitrage opportunity of ten percent (10%) as the margin. Based on the TNB tariff, it costs an average of 35.5sen for a prosumer to generate one kilo watt hour of energy and the prosumer is allowed to sell the energy at 39.05 sen per kWh. The consumer will bear the cost for purchasing the energy from the prosumer and the sandbox network charges of 6.3 sen per kWh. In light of the above, the P2P programme provides for a win-win situation for both the prosumer and consumer whereby the prosumer will earn a profit of 10% from selling the energy and the consumer will experience an eleven percent (11%) savings on the costs. By purchasing energy from a prosumer, the consumer will only have to bear a total cost of 45.35 sen per kWh instead of 50.9 sen per kWh as set by the TNB tariff.
Solar energy is a great alternative energy source which is the cleanest and most abundant renewable energy source available. Thanks to the various incentives and cost-reducing stimulus introduced in respect of solar and/or renewable energy, Malaysia has in the recent years witnessed the rise in the solar energy industry with growing investor confidence. However, we still have a long way before achieving the twenty percent (20%) targeted use of renewable energy in our generation mix by 2025. Although the current trend seems to be positive, continuous efforts must be made to boost the renewable energy sector in Malaysia.
2 Energy Commission, Energy Malaysia, Volume 17 (2018) Page 9
3 Energy Commission, Energy Malaysia, Volume 18 (2019), Page 16
5 Budget 2020 Speech, Driving Growth and Equitable Outcomes Towards, Shared Prosperity, Paragraph 67, Page 25
6 Ibid., Paragraph 4.1, Page 12
7 Ibid., Paragraph 5.2, Page 23
8 Ibid., Paragraph 6.2, Page 29
9 SEDA, About PVMS <https://pvms.seda.gov.my/pvportal/about/> accessed 9 April 2020
10 SEDA, PV Portal, Types of Reports <https://pvms.seda.gov.my/pvportal/purchase-report/> accessed 9 April 2020
11 Energy Commission, Submission of Bids - Large Scale Solar (LSS) Photovoltaic Plant <https://www.st.gov.my/contents/2019/LSS/Bid-Price-Opening-Final_26-August-2019.pdf>
12 Energy Commission, Guidelines on Large Scale Solar Photovoltaic Plant For Connection to Electricity Network, Page 6
13 Energy Commission, Guidelines for Solar Photovoltaic Installation on Net Energy Metering Scheme Paragraph 10, Page 7 .
14 Ibid., Paragraphs 19 and 20, Pages 8 to 9
Prepared by: Fozi Addina Mohamad Fozi & Shazana Abd Hapiz
25th November 2020
On 30th July 2020, the Securities Commission Malaysia (“SC”) issued new Guidelines on Conduct of Directors of Listed Corporations and Their Subsidiaries (“Guidelines”) to strengthen board governance and oversight in listed issuers and their subsidiaries.
25th November 2020
Legislative Framework of Occupational Safety and Health in Malaysia
The legislative structure of occupational safety and health in Malaysia is governed by the Constitution. The main legislations the Occupational Safety and Health Act 1994 (“OSHA 1994”), the Factories and Machinery Act 1967 (“FMA 1967”) and the Petroleum (Safety Measures) Act 1984. This article will focus on the legislations in relation to safety and health at work and initiatives taken by the Government to reduce the occupational accidents in Malaysia.
25th November 2020
With the recent announcement from Boustead Holdings Bhd that it had file a suit against its former managements for negligence; breach of fiduciary duties under the Companies Act 1965 and is seeking a sum of £6.4 million (RM35.37 million current value)1, this article will provide an insight as to directors’ duties and principle of exercise of business judgement by exploring the Federal Court case of Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd and another appeal  2 MLJ 177 (“Petra”).
25th November 2020
A business entity in Malaysia is subject to the Income Tax Act 1967 (‘ITA 1967’) to pay taxes for any income generated through its operations. Pursuant to section 2 of the ITA 1967, most business entities are generally taxable given the wide definition of a taxable person. Nevertheless, Malaysia offers tax exemptions to a certain number of entities which are not for profit in character such as companies limited by guarantee, foundations and non-profit organisations.
25th November 2020
In light of the Conditional Movement Control Order (‘CMCO’) government offices, including the Inland Revenue Board (‘IRB’ or ‘the Revenue’) are beginning to resume operations. It’s only a matter of time before the taxman comes knocking. If you are dissatisfied with Notices of Assessment or Additional Assessment served upon you, the law provides a number of ways to dispute them.
25th November 2020
The Future Today
The digital marketplace has steadily grown in popularity over the last couple of years. As of January 2020, Malaysia's 6% digital service tax was implemented to levy taxes on popular online services like Netflix and Spotify. However, the “new normal” arising from the outbreak of COVID-19 has driven more transactions online and there is plenty of untapped revenue to be taxed. The Malaysian e-commerce market is projected to reach US$4.46 billion (approximately RM18.7 billion) in 2020 and revenue is expected to show an annual growth rate of 16.0% by 2024.
25th November 2020
Malaysia’s tax season is back with businesses preparing to file their income tax returns. As such, there’s no better time for a refresher course on how to lower your chargeable income. Generally, you are only taxed for the profit that you or your business earns.
25th November 2020
Online trade transaction, or in its current and commonly-used term, e-commerce, broadly refers to commercial activity conducted with the aid of electronic devices. E-commerce generally refers to electronic business transactions or trades which are wholly or partially conducted over the internet.1 As e-commerce grows and becomes a more viable and, to a certain extent, safer medium of shopping/trading, it is an industry that requires a strong regulatory framework in order to ensure, among others, accountability and consumer protection. This article intends to explore the legislative framework surrounding e-commerce in Malaysia and the extent to which it regulates online businesses and protects consumers’ interests.
25th November 2020
Virtual general meetings are gaining wider acceptance in many parts of the world in light of the COVID-19 pandemic where more listed companies have begun conducting meetings virtually.
26th November 2020 PART 1: INTRODUCTION The Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”) has been amended to introduce corporate liability provision for bribery and corruption under section 17A of the MACC Act, which came into effect on 1st June 2020. Prior to the introduction of section 17A, the MACC Act had only primarily focused on the prosecution of natural persons who were involved in corruption. However, with this latest introduction, the MACC is now able to directly impose corporate liability on commercial organisations including public and private limited companies whose employees or associated persons are involved in corrupted practices and dishonest commercial misconducts.
26th November 2020 PART 1: INTRODUCTION In addressing the impact and aftermath of the COVID-19 pandemic in Malaysia, the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Bill 2020 (“the COVID-19 Bill”) was tabled for its first reading on the 12th August 2020 and was passed by the Dewan Rakyat (House of Representatives) of Malaysia on the 25th August 2020. Subsequently on 22nd September 2020, the COVID-19 Bill was finally passed by the Dewan Negara (Senate). On 23rd October 2020, it received Royal Assent and is now fully effective.
26th November 2020
1.1 While the verdict of Dato’ Seri Najib Razak’s (“DSNR”) criminal trial on various charges relating to SRC International was handed down in the last week of July 2020, tax professionals are looking at the tax recovery action against the former Malaysian Premier.
COVID-19 Real Estate Legal Updates: The Malaysian Government Introduces Special Measures to Revitali30th November 2020 The COVID-19 pandemic has dramatic consequences for the Malaysian economy and financial markets, and the real estate market is no exception with mounting pressure on the supply and demand. On 07 June 2020, Prime Minister Tan Sri Muhyiddin Yassin announced that the Conditional Movement Control Order (CMCO) will be replaced with the Recovery Movement Control Order (RMCO) for a phased recovery from coronavirus, commencing with a gradual easing of restrictions and the introduction of new measures to help re-build the Malaysian economy. Since then, the Malaysian government has introduced various economy initiatives to support this move. These include initiatives that are designed to revitalise the real estate market, which are much welcomed by developers, investors, property owners, potential home buyers and landlords. Without further ado, let us take a closer look at these initiatives which are meant to “revitalizing” the real estate market.
30th November 2020 The following article is the first of our two-part series on the topic of Digital Securities Offerings in Malaysia.
30th November 2020 Malaysia Lawyer's Perspective on Digital Assets1 Offering The following Q&A is between Ian Fong, Director of Marketing & PR, Propine Technologies Pte. Ltd. and our Serina Abdul Samad, Partner and Head of Capital & Debt Market practice group, Azmi & Associates, in Q1 2020 and is the second of our two-part series on the topic of Digital Assets Offerings (“DAO”) in Malaysia. Some parts of the answer have been updated.
4th January 2021 Introduction Article 5(1) of the Federal Constitution on Liberty of the Person provides as follows: ‘(1) No person shall be deprived of his life or personal liberty save in accordance with law.’
4th January 2021
Land fraud has been common in the last 15 years in Malaysia. It was an unforeseen consequence of the Federal Court’s decision in Adorna Properties. The crux of this particular case was that a property was fraudulently transferred using a forged instrument without the knowledge of the real owner. A third-party bona fide purchaser for value acquired the property.
4th January 2021
Legally, an ownership can be classified into two; (1) legal and (2) beneficial ownership. A legal owner is a person who holds the legal title under his name, whereas a beneficial owner is a person who enjoys the benefits of ownership even though the title is in another name.
4th January 2021
Expropriation is an act wherein the government or prosecuting body can seize or deprive an individual or entity of their properties or accessible assets for the benefit of the public at large. The term formerly applied to any compulsory deprivation of property, particularly by a public agency, but now pertains primarily to government takings where compensation is rendered, as in exercising the right of eminent domain.
A clear example expropriation can be seen when we look at the United States and how properties are expropriated to build public infrastructures such as highways, railroads, airports, and so on. Similarly, in Malaysia the government is looking to commence negotiations with selected highway operators on the expropriation value of their concessions.
Types of Expropriation
There are two ways in which expropriation can be carried out in common law, they are as follows:
Direct expropriation is a mandatory legal transfer of the title to the property or its outright physical seizure. Usually, the expropriation benefits the State or Nation itself.
In cases of direct expropriation, there is an open and deliberate intent, as reflected in a formal law or decree or physical act, to deprive the owner of their property through the transfer of title or outright seizure. An example of this is the expropriation by the Venezuelan government of four heavy oil upgrading projects in 2007.
Alternatively, governments may expropriate property indirectly by depriving private sector property owners of the value of their interests. In practice, indirect expropriation is difficult to identify.
Indirect expropriation involves total or near-total deprivation of an investment but without a formal transfer of title or outright seizure. The notion was recognized in international law long before the appearance of investment treaties.
Legal position on Expropriation
The ‘UNCTAD Series on Issues in International Investment Agreements II (By the United Nations)' stated that:
States have a sovereign right under international law to take property held by nationals or aliens through nationalization or expropriation for economic, political, social or other reasons. In order to be lawful, the exercise of this sovereign right requires, under international law, that the following conditions be met:
- a) Property has to be taken for a public purpose;
- b) On a non-discriminatory basis;
- c) In accordance with due process of law;
- d) Accompanied by compensation.
As stated above, expropriation of property or assets can only be taken for a ‘public purpose'. Most arbitral decisions, including the Amoco case support the view that for expropriation to be lawful it must be in the interest of the public at large and with the popularity of Bilateral Investment Agreements, it further be seen that the requirement of ‘public purpose' is an established one.
With regards to expropriation being on a ‘non-discriminatory basis' the Amoco case also touches on the requirement and suggests that it is a condition of lawful expropriation.
However, the General Assembly Resolution 1803 and the 1974 Charter do not mention that non-discrimination is a requirement as such though it may be held to be a condition within UNCTAD it is not reflected as customary in international law.
Another important condition which must be met for expropriation to be considered lawful is ‘compensation'. The previous views between developed nations with regards to compensation can be found in the Hull Formula of "adequate, effective and prompt compensation".
In the Mexican oil expropriation of 1938, the US Government stated that the lawfulness of expropriation of property or assets depended on the payment of compensation.
This point was stated by the US Secretary of State in a note of April 3, 1940, to the Mexican Ambassador at Washington. Hull said:
The Government of the United States readily recognizes the right of a sovereign state to expropriate ... however '" the right to expropriate property is coupled with and conditioned on the obligation to make adequate, effective and prompt compensation.
The legality of an expropriation is in fact dependent upon the observance of this requirement.
Depending if the expropriation was direct or indirect and carried out in compliance with the conditions for legality, it will be lawful or unlawful in international law. One also must consider the dual status of compensation.
As both lawful and wrongful expropriation are given the right to compensation, the question arises on how to differentiate between the compensation to be awarded for lawful expropriation and for wrongful expropriation.
The response of customary international law to the question above was developed in the Chorzów Factory Case which, despite controversial views, remains the decision on this matter.
In this case, the Permanent Court of International Justice (PCIJ) stated that in the case of a wrongful act (wrongful expropriation in this case):
Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.
Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by the restitution in kind or payment in place of it-such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.
In conclusion, from the case studies and analysis above it can be seen that there are some opposing views between nations regarding the requirements for lawful expropriation in international and common law.
From the complications the act of expropriation carries, it is an act that is rarely carried out by the government or prosecuting body in developed nations. Many nations have entered into ‘Bilateral Investment Treaties' which generally go against the act of expropriation.
1 Expropriation (Law), by The Editors of Encyclopaedia Britannica
2 Amoco International Finance Corp v Iran (1987) 15 Iran-US CTR 189
3 Public International Law 2nd Edition, Abdul Ghafur Hamid @ Khin Maung Sein
4 The Chorzów Factory Case (Germany/Poland), September 13, 1928, Series A, No. 17 (substantive issue).
Prepared by: Abu Daud Abd Rahim & Loni Lee
4th January 2021
A liquidator is appointed for the winding up of a company, whether it is a compulsory winding up by the court, or a winding up commenced by its members or creditors. A liquidator acts as a key figure in the winding up process and his main role is to wind up the business of the company, realize the assets to pay off the creditors and other dues and ultimately, in a solvent company to return the balance to the members and bring an end to the liquidation process. Hence, various duties are imposed on a liquidator to ensure the fairness of the liquidation process and breach of such duties, may expose the liquidator to criminal liability, professional negligence, contempt of court, or/and an order of court removing him as the liquidator.
4th January 2021
Assets are often purchased by companies as part of its corporate exercise. The seller and buyer (“Parties”) to a sale and purchase of assets would enter into a sale and purchase agreement mutually negotiated and agreed by the Parties. A sale and purchase agreement sets out all the details, terms and conditions of the sale including the rights and obligations of the Parties.
4th January 2021 Overview Of Artificial Intelligence In Malaysia Introduction The Fourth Industrial Revolution is upon us! It is described as the current and developing environment in which disruptive technologies and trends such as robotics, virtual reality (VR) and artificial intelligence (AI) are changing the way we live and work. AI may seem like a futuristic concept, however, it is already heavily implemented in our lives. A clear example of AI are ‘virtual assistants’ such as Alexa, Siri, and Cortana, all of which are already household names. This article explores the incorporation of AI in various industries in Malaysia and compares the growth of AI in Malaysia to that of the growth in the UK and US.
4th January 2021
Being a trustee is not merely having the powers to administer the property of a trust fund, but it comes with a wider scope of duties and responsibilities. As much as directors have fiduciary duties in exercising their directorship in managing a company, similarly, trustees also owe fiduciary duties towards the beneficiaries of the trust fund.
6th January 2021 Introduction Today, businesses are blooming in line with the globalization of trade. However, let’s face it. The advancement and expansion of business opportunities have triggered greater competition, forcing the players in the industry to be more innovative to survive and remain as competent players in the industry. More often than not, business engagements and corporate transactions are entered into with the ultimate goal of generating proceeds and profits. However, reality may not be as what you want it to be.
7th January 2021 Introduction A company director is appointed to manage the day-to-day business activities and finances and to ensure all statutory obligations are met. As a director, the appointed person shall manage all the business affairs of the company, with a view to promote, not his own interests, but to give his best judgment in the interests of the corporation in all matters in which he acts for it, untrammelled by any hostile interest in himself or others. Hence, it can be said that a director is required to act in good faith and discharge his duties by exercising reasonable care and skill.
7th January 2021 The Malaysian Anti-Corruption Commission Act 2009 (MACC Act) has been amended, among others, to introduce corporate liability provision for bribery and corruption under Section 17A, which will come into effect on 1st June 2020.
7th January 2021 Introduction One of the most heavily negotiated clauses in a share sale agreement (“SSA”) is indemnity clause. The parties to the SSA can agree on the most fundamental thing, including the purchase price, from day one but a clause that seems like just a boilerplate to an agreement – indemnity clause - may take months of the negotiation time.
7th January 2021 Each citizen deserves to enjoy a private life where one can freely converse with another person without interference or fear that the conversation might be heard by any 3rd party. In the modern days of today, it is not foreign for anyone to communicate with each other through telephone calls and instant messaging applications. Although the various means of communications that we have today seem to make life much easier compared to before where we are able to have an uninterrupted conversation with someone from across the world, the convenience comes with a risk that the conversation has the possibility of being tapped by another party, legally or illegally.
7th January 2021 Often there are times where an important document is no-where to be found and all that is left are copies made by the photocopy machine. While in some cases a new original document may be issued such as certificate of shares, this may not necessarily be the case in some other situations. In times like this, copies are usually what anyone would want to rely on.
14th January 2021 Introduction The COVID-19 pandemic is creating significant health, social and economic challenges worldwide. The impact of this outbreak has raised many concerns in Malaysia especially for Small and Medium-sized Enterprises (“SMEs”) as there is a real risk of insolvency since business is limited due to the closure of premises during the Movement Control Order imposed by the Malaysian Government. It is vital to ensure the sustainability of SMEs as they play an important role in the development and growth of the Malaysian economy. In light of the recently announced Economic Stimulus Package as well the Second Stimulus Package, steps were introduced to further alleviate the burden of this pandemic on SMEs. The initiatives taken by the Malaysian Government, among others, are as follows: -
14th January 2021 Coronavirus has taken Wuhan by storm when the outbreak was first discovered in one of central China’s most important industrial cities in December 2019. In less than three months as at the time of writing, the coronavirus disease COVID-19 has affected numerous countries and territories around the world which resulted in the quarantine of hundreds of millions of people and resulted in a death toll of over 60,000, and rising.
14th January 2021 Introduction On 11 March 2020, the World Health Organization (“WHO”) declared the COVID-19 outbreak as a pandemic. Until today, COVID-19 has affected 203 countries and territories around the world and 2 international conveyances (Diamond Princess cruise ship and MS Zaandam cruise ship). In order to stop the spread of COVID-19 virus, a nationwide movement control order has been implemented in Malaysia effective from March 18 to April 14. Notably, not only the government of each country has set up protection measures, many pharmaceutical companies and research laboratories around the world are working at full tilt on vaccine clinical trials. If these clinical trials are successful in other countries, Malaysia may consider to import vaccine from other country(ies) to treat its patients. This article will solely focus on the legal requirements and procedures of vaccine importation into Malaysia.
22nd January 2021 On 27 December 2019, the Trademarks Act 2019 (“the TA 2019”) has officially come into force in Malaysia, repealing the previous Trade Marks Act 1976 (“the TA 1976”). Trademarks Regulations 2019 is also now in force, repealing the previous Trade Mark Regulations 1997. Prior to the introduction of the TA 2019, on 27 September 2019, the Government of Malaysia deposited its instrument of accession to the Madrid Protocol with WIPO’s Director General, making Malaysia the 106th member of the Madrid System.
22nd January 2021 COVID-19 is a new strain of coronavirus that first emerged in central China at the end of 2019 and continues to spread around the globe. On 11 March 2020, the COVID-19 outbreak has been declared a pandemic by the World Health Organization (WHO) and is already having a major effect on international commerce. As the outbreak expands in Malaysia, all industry stakeholders should be well prepared to monitor and address concerns impacting the industry. In this article, we will share the key impacts of COVID-19 on the real estate industry and back to work considerations as we prepare for reopening the economy.
22nd January 2021 Who can convene an extraordinary general meeting?
22nd January 2021 Introduction In order to export, tranship or bring in transit a strategic item, a permit is required. This is in accordance with section 9(1) of the Strategic Trade Act 2010 (“STA 2010”), where it states that “no person shall export, tranship or bring in transit strategic items unless he obtains a permit issued under this Act”. This article will look at what constitutes a strategic item and the ability and manner to request a technical review on an item that might be wrongly classified as a strategic item.
22nd January 2021 What is a civil conspiracy in law? According to the Court of Appeal in Renault SA v Inokom Corp Sdn Bhd & Anor , the main elements of tort of conspiracy that need to be satisfied are as follows:
25th January 2021 Chapter 15 of the Listing Requirement sets out the requirements that must be complied with by a listed issuer and its directors of listed issuers and their subsidiaries in relation to corporate governance.
25th January 2021 Introduction Online trade transaction, or in its current and commonly-used term, e-commerce, broadly refers to commercial activity conducted with the aid of electronic devices. E-commerce generally refers to electronic business transactions or trades which are wholly or partially conducted over the internet. As e-commerce grows and becomes a more viable and, to a certain extent, safer medium of shopping/trading, it is an industry that requires a strong regulatory framework in order to ensure, among others, accountability and consumer protection. This article intends to explore the legislative framework surrounding e-commerce in Malaysia and the extent to which it regulates online businesses and protects consumers’ interests.
25th January 2021 [A] INTRODUCTION With the recent announcement from Boustead Holdings Bhd that it had file a suit against its former managements for negligence; breach of fiduciary duties under the Companies Act 1965 and is seeking a sum of £6.4 million (RM35.37 million current value)1, this article will provide an insight as to directors’ duties and principle of exercise of business judgement by exploring the Federal Court case of Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd and another appeal  2 MLJ 177 (“Petra”).
1st February 2021 INTRODUCTION The guiding principles of Judicial Review were clearly pronounced in the Federal Court case of Ketua Pengarah Hasil Dalam Negeri v Alcatel – Lucent Malaysia Sdn. Bhd. & Anor. “A judicial review is a court proceeding where a challenge is made on the decision of the relevant authority or entity by challenging the lawfulness of the decision-making process.” Generally, the court dealing with the judicial review has the power to strike down the law, quash the decision of the relevant authority or under a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society. Grounds for Judicial Review It is trite law that the principles of unreasonableness, or irrationality,which is also known as the "Wednesbury principle", derived from the celebrated case of Associated Provincial Picture Houses Ltd v Wednesbury corp ("Wednesbury"). In short, it is a situation where the public authority has acted so unreasonably that no reasonable authority would have made such a decision. Lord Greene in the case of Wednesbury explained that the court cannot set up its own view as to what is reasonable and what is not. The court can only interfere if it is shown that the authority has contravened the law. And the authority is said to be contravening the law if it has taken into account matters which it ought not to take into account, or it has not taken into account matters which it ought to take into account. In other words, the court can also interfere if, the public authority, despite conforming to the requirements of the law, has become to a decision unreasonable that not reasonable authority could ever have come to it. In Sheila Sangar v. Proton Edar Sdn Bhd & Anor the principles governing judicial review was neatly encapsulated as follows: "The first principle of judicial review concerned the decision making process and not the merits, substance or justification. The second principle is that there can be an exception to the first principle where the court could examine the substance or justification to satisfy itself that the decision maker had not transgressed the principles of procedural impropriety, illegality or irrationality". The House of Lords in R (Daly) v. Secretary of State for the Home Department demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria for proportionality are more precise and more sophisticated than traditional grounds of review. Therefore, judicial review can be initiated in accordance to the basis of necessity of the issue and proportionality on the acts of the government. This article will provide an insight as to the growing trend of Judicial Review against the government by exploring the Federal Court case of Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal  3 MLJ 443 ("PNM v CCK") and two (2) recent news article. JUDICIAL REVIEW AGAINST GOVERNMENT Case Study: Peguam Negara Malaysia v Chin Chee Kow  3 MLJ 443 Brief facts of PNM v CCK A testator had willed funds and lands to trustees under a public charitable trust to build a pagoda for worshippers of a particular Buddhist deity. a) When, after many years, nothing was done by the trustees to carry out the testator's wishes and all funds that were allocated for that purpose were spent, the association representing the followers of the deity sought public funding to build the pagoda. b) As interested donors wanted the association to become a trustee of the funds to ensure the project was well-managed, the association sought the attorney general's ("AG") consent under section 9(1) of the Government Proceedings Act 1965 ("GPA") to its proposed application to the High Court to be made a trustee. However, the AG refused to give his consent. c) The respondent sought leave of court to file proceedings to quash the AG's refusal and order him to grant the consent. The AG objected to the leave application on the ground his refusal was non-justiciable. d) The High Court disagreed with the AG and granted the association leave to file for judicial review. The Court of Appeal upheld the decision. e) Aggrieved with the decision of the Court of Appeal, the AG had applied for and obtained leave to appeal from the Federal Court. Federal Court's decision The Federal Court in its judgment had mentioned the English case of Brown v Executors of the Estate of Her Majesty Queen Elizabeth the Queen Mother, which stated that: a) "The conclusion (of the House of Lords in Gouriet's case) that, in the absence of the consent of the Attorney-General, Mr Gouriet was barred from pursuing the proceeding was based the analysis of the statutory provisions in issue. By contract, there is nothing on the face of section 124 of the Supreme Court Act 1981 to suggest that the court may only exercise its powers under it on an application by the Attorney-General. The general effect of section 124 may be relied on by any person." Furthermore, the Federal Court also mentioned and referred to a Singapore case affirming the position that all AG's powers are subject to legal limits as: a) the Singapore Court of Appeal in Tan Seet Eng v Attorney-General stated "under the law, the AG'S discretionary power is not absolute and he must act according to law, as his prosecutorial power is subject to legal limits. Prosecutorial discretion cannot be exercised in bad faith, or in a manner contrary to the quality guaranteed under Article 12 of the Constitution". The Federal Court, keeping in mind the principles of law on the subject as propounded by the courts in other jurisdiction, found that the Court of Appeal had no flaw in its reasoning in holding that the power of the AG to give or refuse consent under section9(1) GPA 1965 is amendable to judicial review. Lastly, before delivery its judgement, the Federal Court reiterate the important pronouncement in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case  in which the court declared that the power of judicial review ‘cannot be changed or altered by Parliament by way of a constitutional amendment'  and ‘the power of judicial review is essential to the constitutional role of the courts, and inherent in basic structure of the constitution'. In summary, the Federal Court held that unfettered discretion is contradictory to the rule of law and hereby dismissed the AG's appeal as the AG's power to give consent or otherwise under section 9(1) GPA 1965 is not absolute and is subject to legal limits which is amenable to judicial review. News Article 1: High Court grants Petronas, TNB interim stay against IRB for multi-billion tax claims Petroliam Nasional Berhad ("Petronas") On the 10th August 2020, the High Court granted Petronas an interim stay against the Inland Revenue Board (LHDN) for imposing additional tax assessments amounting to RM3.6 billion on the national oil company. Petronas and three of its subsidiaries have filled three judicial review proceedings against LHDN alleging that LHDN's action was ‘ultre vires, illegal, void, in excess of authority and irrational in making the additional tax assessments of RM3.6 billion'. As of the date of writing this article, the date has fixed for 19th September 2020 to hear Petronas' leave application for the judicial review. Tenaga Nasional Berhad ("TNB") In another court, a similar stay order against LHDN's assessment of RM1.8 billion on similar grounds concerning its reinvestment tax allowance was granted to TNB pending the outcome of a judicial review. The legal representative for TNB told the media that "the judge accepted our submission that the judicial review must be heard and disposed of before a decision on payment is made". As of the date of writing this article, the court will hear the leave for judicial review on the 21st September 2020. News Article 2: High Court allows construction company to move judicial review Wabina Construction & Engineering Sdn Bhd ("Wabina") Wabina filed the legal suit in May 2020 against the Malaysian government, Domestic Trade and Consumer Affairs, the Companies Commission of Malaysia and its debtor Seal Properties (KL) Sdn Bhd, challenging the government's decision to gazette the Companies (Exemption) Order 2020 during the Movement Control Order (MCO) that effectively exempted companies from having to pay their creditors for six months. Wabina alleged that the ministry had acted beyond their powers in issuing the 2020 Order, which it claimed is illogical and void  to the extent of being inconsistent with the Companies Act because it was gazetted without going through the Dewan Rakyat for debate. On the 29th June 2020, the Penang High Court has granted leave to Wabina to have the full merits of its judicial review application heard. This is the first such challenge by a company over the government's directive, which was gazetted as an order on 23rd April without having been passed by Parliament.  Wabina said it had, since 27th March, a statutory right to serve a winding-up notice on Seal Properties. However, due to the gazetted order from the government, it has been prevented from doing so. Thus, its constitutional right as a creditor to recover the sum it was owed has been violated. CONCLUSION Judicial review against the Government is recognised as a basic structure of the Malaysian constitution where under Article 121 (1) the civil courts constitutional role is as a check and balance mechanism. Therefore, the judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Hence the concept of the independence of the judiciary is the foundation of the principles of the separation of powers. As held by Justice Zainun FC in the Federal Court's decision of Indira Gandhi's case. "This is essentially the basis upon which rests the edifice of judicial power. The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework." To conclude, judicial review against the Government is the ultimate solution in preventing blatant misuse of powers by the Government in dealing with their actions and accountability. ------- 1 Ketua Pengarah Hasil Dalam Negeri v Alcatel - Lucent Malaysia Sdn. Bhd. & Anor  1MLJ 563 2 [Para 29] Ketua Pengarah Hasil Dalam Negeri v Alcatel - Lucent Malaysia Sdn. Bhd. & Anor  1 MLJ 563 3 Associated Provincial Picture Houses Ltd v Wednesbury Corp  1 KB 223 4 [Para 233], Wednesbury  1 KB 223 5 [Para 32], Ketua Pengarah Hasil Dalam Negeri v Alcatel - Lucent Malaysia Sdn. Bhd. & Anor  1 MLJ 563 6 [Para 33], Ketua Pengarah Hasil Dalam Negeri v Alcatel - Lucent Malaysia Sdn. Bhd. & Anor  1 MLJ 563 7 Sheila Sangar v. Proton Edar Sdn Bhd & Anor 4 MLJ 285 (2009) 8 R (Daly) v. Secretary of State for the Home Department 2 AC 532 (2001) 9 Brown v Executors of the Estate of Her Majesty Queen Elizabeth the Queen Mother  1 WLR 2327 10 [Para 38], Brown  1 WLR 2327 11 Tan Seet Eng v Attorney-General  1 SLR 779 12 [Para 1-2] Tan Seet Eng v Attorney-General  1 SLR 779 13 PNM v CCK  1 MLJ 307 14 [Para 77], PNM v CCK  3 MLJ 443 15 Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case  3 MLJ 561 16 [Para 81], PNM v CCK  3 MLJ 443 17 [Para 81], PNM v CCK  3 MLJ 443 18 [Para 83], PNM v CCK  3 MLJ 443 19 https://www.theedgemarkets.com/article/high-court-grants-petronas-tnb-interim-stayagainst-irb-multibillion-tax-claims 20 https://www.theedgemarkets.com/article/high-court-grants-petronas-tnb-interim-stayagainst-irb-multibillion-tax-claims 21 https://www.freemalaysiatoday.com/category/nation/2020/08/10/petronas-tnbobtain-interim-stay-from-paying-rm5-4-bil-intaxes/ 22 https://www.nst.com.my/news/crime-courts/2020/06/604381/high-court-allows-construction-company-move-judicial-review-nsttv 23 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 24 https://www.thestar.com.my/news/nation/2020/06/29/court-allows-company-tochallenge-mco-order-granting-six-monthdebt-extension 25 https://www.nst.com.my/news/crime-courts/2020/06/604381/high-court-allows-construction-company-move-judicial-review-nsttv 26 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 27 https://www.theedgemarkets.com/article/court-allows-merits-companys-challengegovts-move-allowing-deferred-payments 28 Article 121 (1) of the Federal Constitution 29 Indira Gandhi v. Pengarah Jabatan AgamaIslam Negeri Perak and 2 Ors. (2018) 1 MLJ 545. Prepared By: Adly Zulfadhly Zulkefly & Gabriel Yee Full Yek
1st February 2021 While businesses and companies may be valued by the relative worth of their physical assets, what is often overlooked are the equally valuable Intellectual Property (IP) rights they own. It is a misconception that the run-of-the-mill company which merely deals in trade and does not engage in creative output or ground-breaking innovation has little to do with IP. In fact, IP can be as mundane as the very logo of the company or even the packaging or design of the company’s products. Thus, in the modern economy, it is essential that savvy business owners take cognizance of what rights they may own which extend far beyond the physical assets in their possession and how they may enforce those rights.
1st March 2021
INTRODUCTIONZschimmer & Schwarz GmbH & Co KG Chemische Fabriken v Persons Unknown & Anor  7 MLJ 178 is Malaysia’s first legal action against “Persons Unknown” in light of a push payment fraud. The judgment has provided important clarification on the remedies against “Persons Unknown”. The Malaysian High Court granted a Mareva Injunction and a Proprietary Injunction against the fraudsters including the “Persons Unknown”.
9th March 2021
Part 1: IntroductionIn Malaysia, collection, processing, storage, transfer and retention of individuals’ personal data are governed under the Personal Data Protection Act 2010 (the “Act”). In short, the Act regulates the processing of personal data in commercial transactions in Malaysia.
23rd April 2021 In international trade goods are often bought and sold by traders and they often do not produce the goods. The trader earns on the price differential between his supplier and buyer. Often the trader will want to protect the identity of the supplier / shipper and may ask the carrier to switch bills of lading to another bill of lading which does not name the actual supplier. The original of bill of lading must be returned before a switch bill of lading will be issued. The carrier and/or freight forwarder must make sure that the original set of bills of lading are taken out of circulation and cancelled before the switch bill of lading can be released. This is important as it ensures that there is only one set of documents in force to prevent problems. Other reasons why switch bills are issued: -
- the original bill names a discharge port which is subsequently changed (e.g., because the receiver has an option or the good are resold) and new bills are required naming the new discharge port:
- a seller of the goods in a chain of contracts does not wish the name of the original shipper to appear on the bill of lading, and so a new set is issued, sometimes naming the seller as the shipper. A variation on this is where party does not wish the true port of loading to be named on the bill;
- the first set of bills may be held up in the country of shipment, or the ship may arrive at the discharge port in advance of the first set of bills. A second set may therefore be issued in order to expedite payment, or to ensure that delivery can take place against an original bill;
- shipment of goods may originally have been in small parcels, and the buyer of those goods may require one bill of lading covering all of the parcels to facilitate his on sale. The converse may also happen i.e., one bill is issued for a bulk shipment which is then to be split.
‘... We the undersigned request that the master of the above vessel deliver the cargo consisting of crude palm oil in bulk and 3998.421 mt and shipped by Kantor Pemasaran Bersama and Pt. Ivo Mas Tunngal at the Port of Dumai, Indonesia on 23rd October 2003 to the Port of Yantai China notwithstanding the original bills of lading having been issued, we Summerwind Trading Pte. Ltd. request the vessel to deviate her discharging port of calling for delivery at the port of Port Klang (West) Malaysia and consigned to ‘To Order' and ‘Notify Mewah Oils Sdn. Bhd.' and without prior production of the original bills of lading.' In the same global bill of lading Summerwind provided the defendant with an indemnity in return for compliance with its directions above. This included the following:
... In consideration of your complying with our above request, we hereby agree as follows: DW1, Dhiyana Triadi who testified for the shipowner, was cross-examined on the documents above as well as the email relating to the request by Summerwind that the defendant state a destination other than that which was planned and agreed between the parties to ‘assist' Summerwind. He testified as follows:
- 1)To indemnify you, your servants and agents and to hold all of you harmless in respect of any liability loss, damage or expense of whatsoever nature which you may sustain by reason to the ship proceeding and giving delivering of the cargo in accordance with our request.
- 2)In the event of any proceedings being commenced against you or any of your servants or agents in connection with the ship proceeding and giving delivery of the cargo as aforesaid, to provide you or them on demand with sufficient funds to defend the same.
- 3)If the place at which we have asked you to make delivery is a bulk liquid or gas terminal or facility or another ship, lighter or barge then delivery to such terminal, facility, ship, fighter or barge shall be deemed to be delivery to the party to whom we have requested you to make such delivery.
- 4)As soon as all original bills of lading for the above cargo shall have come into our possession, to deliver the same to you or otherwise to cause all original bills of lading to be delivered to you whereupon our liability hereunder shall cease ...
Q: Refer to page 26. Can you explain to us what is the purpose of this e-mail? (the e-mail of 19 October 2003) A: Pak Wino is one of the employees of the Defendant based in the Jakarta office. The e-mail mentions that the charterers are finding difficulty to buy cargo. And they have converted some of the cargo bought for China for this shipment. Q: What do you understand by that? A: Converted means change. Then they say that the discharging port as Yantai and then as per standard shipping procedure the charterers will provide the owners with change of destination. Q: Change of discharging port - from which port to which port? A: It is not stated. Only states that the discharging port in the b/l to be changed to Yantai. Q: What is the real port of discharge? A: Port Klang or Pasir Gudang. Q: You mean Yantai is a false discharging port? A: I can't say that. It is just to be mentioned in the b/l. Q: So, this e-mail of 19 October 2003 you agree that neither Summerwind nor the Defendant had any intention to go to Yantai? A: Yes. Q: Do you agree that following this the Defendant agreed to state a false port of discharge? A: We just follow the instructions of the charterers to make the b/l. Q: I put it to you that in agreeing with this request, the Defendant did not care whether the b/l holder would suffer loss. A: I do not agree. Q: I put it to you that the Defendant could easily have refused Summerwind's request? A: We don't have reason for that. Not necessary to refuse. Q: Do you agree that the proper shipping practice is that the Defendant must state the actual destination on the b/l? A: No. Q: Are you saying that the Defendant can state a false destination? A: The b/l is according to the charterparty It states that shipment is carried pursuant to the terms of the charterparty. Q: Refer to page 4. It says Pasir Gudang. In accordance with proper shipping practice the owner should only issue a b/l in accordance with the real port of discharge? A: There is an LOI (Letter of Indemnity) from the charterers that they require b/l to be issued to Yantai, China. Q: So, the Defendant was heavily reliant on this LOI in complying with this request? A: Yes. It follows from the foregoing and the e-mail dated 19 October that the defendant understood and had agreed to Summerwind's proposal:
- To issue local bills of lading to the shipper, KPB (which would be passed on to the lawful endorsees in due course) specifying the destination of KPB's cargo as Yantai, China when at all times the voyage to be undertaken was to Port Klang, Malaysia. In short, the statements and representations on the bills of lading relating to the destination of the cargo were false;
- To deviate from the discharge port stated on the bills of lading to be Yantai, China, to Port Klang, Malaysia; and
- To notify Mewah Oils Sdn Bhd without requiring the production of the original bills of lading, in other words to discharge the cargo without the production of the original bills of lading.
25th May 2021
IntroductionA director owes fiduciary duties to a company to prevent the assets of the company from being depleted illicitly, especially when the company is insolvent. This is regardless of whether or not the director is a de jure, de facto or shadow director. The duty of a director includes taking action or intervening when it is required. A director’s inaction can amount to a breach of fiduciary duty to the company as highlighted in the decision of the Privy Council in Byers and others (Appellants) v Chen Ningning (Respondent) (British Virgin Islands)1 (“Privy Council decision”). In this article, we will look into the Privy Council decision and the corresponding position in Malaysia.
Privy Council Decision
- Miss Chen Ningning ("Miss Chen") was a director of Pioneer Freight Futures Ltd ("PFF"), a company incorporated in the British Virgin Islands. In May 2009, PFF had entered into a loan agreement with Zenato Investments Ltd ("Zenato") under which Zenato was to advance a loan to PFF totalling USD13 million. In November 2009, PFF repaid its indebtedness to Zenato in three tranches ("Zenato payments"). When the Zenato payments were made, PFF was insolvent.
- Joint provisional liquidators were subsequently appointed and brought proceedings against Miss Chen for her breach of fiduciary duties in 2014 as a director of PFF, or as someone whose role in the affairs of PFF justified the imposition of fiduciary duties, for causing and procuring the Zenato payments at a time when the company was insolvent.
- The trial judge found that Miss Chen had not acted in breach of her fiduciary duty as she was not a director at the time of the Zenato payments. The judge also found that the Chief Operating Officer ("COO") was responsible for the Zenato payments. The liquidators appealed to the Court of Appeal, which was subsequently dismissed. The case was then appealed to the UK Privy Council.
- The Privy Council held that Miss Chen was a director at the time of the Zenato payments. Privy Council stated that Miss Chen, as a director of an insolvent company:
- had a fiduciary duty to act honestly and in good faith in what she believed to be the best interests of PFF and in the best interests of its creditors; and
- had a duty to exercise her powers as director for proper purposes - in this case, once PFF became insolvent, Miss Chen had a duty to exercise her powers for purposes which would further the interests of PFF's creditors.
- The Zenato payments were made for an improper purpose at the time of the Zenato payments, PFF was insolvent and the Zenato payments had been made for no proper reason. Miss Chen was the director of PFF and the sole authorised signatory of the account from which the Zenato payments were made. Thus, the Privy Council held that Miss Chen was in breach of her fiduciary duties by failing to intervene and prevent the Zenato payments from being made.
- The Privy Council further held that Miss Chen could not evade these duties by delegating to an employee or a de facto director her authority to make payments from PFF's account. By delegating to the COO the ability to make the payments and failing to reasonably prevent the Zenato payments, Miss Chen had authorised and caused the Zenato payments.
The Malaysian PerspectiveIn Malaysia, Section 213 of the Malaysian Companies Act ("the Act") provides that a director of a company shall at all times exercise his powers in accordance with the Act for a proper purpose, in good faith and in the best interest of the company. He must also exercise reasonable care, skill and diligence with the knowledge, skill and experience, which may reasonably be expected of a director having the same responsibilities and any additional knowledge, skill and experience which he possesses. In CIMB Bank Berhad v Jaring Communications Sdn Bhd2, the company was wound up by the petitioner and the issue was whether the director was guilty of misfeasance and breach of fiduciary duty. The director had made advances of money and loans using the company's money when the company was already insolvent. The court stated that by doing so, the director had violated the statutory duties as well as fiduciary duties. The court also agreed with the English case of West Mercia Safetywear Ltd (in Liquidation) v Dodd3 which states that when a company becomes insolvent, the interest of the creditors would override the interest of the shareholders because, at this point, the company's assets would be reserved for the creditors. The case of Dan-Bunkering (Singapore) Pte Ltd v The Owners of The Ship or Vessel ‘Pdz Mewah' (IMO No.: 9064009) of Port Klang & Anor4 states that it is settled law that when a company is insolvent, the interests of the creditors become the dominant factor in what constitutes the "benefit of the company as a whole". In this case, the court stated that the director had breached his fiduciary duty to act in the best interest of the company and its creditors as a whole when they sold a vessel at an undervalue at a point that the company was already insolvent. This transaction was unlawful because it deprived the creditors of their rights. This case also cites the textbook authority of Chan & Koh on Malaysian Company Law, Principles & Practice, Second Edition, pp. 586-587 which provides the following: "In recent years, there is an emergent principle that the directors in discharging their duty in good faith for the benefit of the company as a whole, must have regard to the interests of creditors especially in a situation where the company is insolvent or nearing insolvency. It is said that where a company is insolvent or is nearing insolvency, the creditors are to be seen as having a direct interest in the company and that interest cannot be overridden by the members of the company. In such a case, the duty of the directors to consider the best interests of the company concerns not exclusively those of the members but may also include those of its creditors." Similarly, in Ng Pak Cheong v Global Insurance Co Sdn Bhd5, the issue was whether there was a breach of fiduciary duty when the directors masked the true accounts of their company and when they transferred property during a time that the company was likely to become insolvent. The court referred to the Australian case of Spedley Securities Ltd (In Liquidation) v Greater Pacific Investments Pty Ltd (In Liquidation)6, which provides that a director owes a duty to the company to act honestly and with a reasonable degree of care in the performance of his functions as a director. The Australian court averred that it is dishonest of the director to seek to disguise the true state of accounts of a company. To do so, it has misled shareholders, creditors and regulatory authorities. These Malaysian cases share the same sentiments as the Privy Council decision in that directors' fiduciary duties extend not only to the company but also to the company's creditors when the company is insolvent. However, the Privy Council decision shed light on the ability to sanction the directors' inaction rather than action as part of the directors' fiduciary duties in the context of insolvency.
ConclusionIt is trite law that directors of a company have a duty to act in the best interest of the company. However, when a company becomes insolvent or is about to become insolvent, this duty extends to the creditors of the company. The director must take all reasonable steps to prevent the assets of the company from being misapplied. As the Privy Council put it, a director may not knowingly stand by idly and allow a company's assets to be depleted improperly. A director must play an active role and intervene when the best interest of the company or creditors of the company is being jeopardised. Against the backdrop of statutory duties, the directors should always keep abreast of the company's situation and discharge their duties according to different circumstances.
1.  UKPC 4 2.  MLJU 920 3.  BCLC 250 4.  MLJU 1574 5.  1 MLJ 64 6.  7 ACSR 155 Prepared by: Hezelyn Ng Sze Hui & Chong Han Jie
18th November 2021 As COP26 ends in Glasgow, there could be growing pressure on companies to review their objects and for joint ventures to review their goals. Malaysian regulators such as the Securities Commission and Bursa Malaysia are already thinking of setting higher standards of disclosures in relation to ESG and sustainability for listed companies.
24th November 2021 There are many ways goods can be shipped by sea. Many exporters who sell abroad regularly will ship their goods in containers. If their volumes are sufficient to fill a container then the container will contain only their goods, this is a Full Container Load [FCL] shipment. If the goods are insufficient or consists of only a small quantity then the goods are consolidated with other parties/shippers goods and shipped in a Less Container Load [LCL] form. Whilst the container themselves are carried by Shipping Lines1 with fixed schedules and voyages, often the shipments are arranged by freight forwarders2. The contracts of carriage are often bills of lading or seawaybills.
24th November 2021
IntroductionCosmetic products in Malaysia are generally regulated under Sale of Drugs Act 1952 to be read together with Control of Drugs and Cosmetic Regulations 1984 (“CDCR”)1 and Guidelines for Control of Cosmetic Products in Malaysia (“Guidelines”). Under CDCR, a company which intends to manufacture, sell, supply, import and possess any cosmetic product must ensure that the cosmetic product is a notified cosmetic by obtaining the appropriate approval from National Pharmaceutical Regulatory Agency (“NPRA”)2 under the purview of the Ministry of Health. Failing which, it shall be considered as an offence which liable to a fine not exceeding Ringgit Malaysia Twenty-Five Thousand Only (RM25,000.00) or to imprisonment for a term not exceeding three (3) years or to both.3
24th November 2021
“There is a strong need for good corporate governance and board leadership, especially as companies navigate the prolonged post pandemic recovery period.” Datuk Syed Zaid Albar Executive Chairman, Securities Commission Malaysia
24th November 2021 The principle of wilful blindness has often been contested in courts. In criminal law, Wilful Blindness or ignorance of law refers to the ‘deliberate avoidance of knowledge of the facts’; that is, a person avoids gaining knowledge as a means of avoiding self-incrimination1. In its purest form, wilful blindness (also known as Nelsonian Blindness) refers to the act of intentionally shutting one’s eyes to an obviously unlawful situation. An example of this can be seen when an accused individual has deliberately shut their eyes to the knowledge of possession and or knowledge of use of illicit illegal substances, the law can deem this as the equivalent of actual knowledge.