TML co-founder Marcus van Geyzel is on the latest episode of the Actsplore This podcast. It’s a casual and wide-ranging conversation, touching on honing your craft, overcoming fear, adopting the right mindset, and — above all — enjoying the ride.
Case Update: Priority of An Admiralty Claim Versus Insolvency
Wong Chee Chien writes a case update on when an admiralty claim trumps insolvency.
More often than not, a creditor with an admiralty claim would take steps to arrest a ship or vessel of the debtor, for the purposes of selling it so that the proceeds of sale will be held as pre-judgment security for the creditor.
However, if the debtor subsequently goes into liquidation, what happens to the proceeds of sale from the arrested vessel? Should the proceeds be paid to the creditor, or should they be distributed to all unsecured creditors pari passu? These issues were dealt with by the High Court in Dan Bunkering (Singapore) Pte Ltd v The Owners of the Ship or Vessel “PDZ Mewah” & Anor (see grounds of judgment dated 9 August 2021).
Although this decision deals with several issues, this case update focuses on the question of whether the creditor’s admiralty claim trumps the insolvency regime of pari passu distribution among unsecured creditors. Continue reading
Case Update: Potential pitfalls where an employee is engaged by a Malaysian service provider for a foreign employer
In this Case Update series, I share summaries of recent Malaysian court decisions to explore the current approach taken by the courts when deciding on employment-related issues. You can find all the posts in the series by clicking here, including case updates on other legal areas by TheMalaysianLawyer co-founder Lee Shih.
Technology has facilitated the increasingly global reach of many businesses, and now even small businesses find it easy to establish a multi-jurisdictional presence. This global footprint, plus the increasing popularity of remote-working arrangements which has been further accelerated by the COVID-19 pandemic has made it even more common for employers to hire employees in countries where they do not have a physical presence or legal entity.
Foreign companies use several options to engage individuals in Malaysia, broadly falling under the direct or indirect methods (or a combination). With the direct method, a foreign company would engage an individual directly, either as an employee or a contractor, using a contract either — (a) governed by Malaysian law; or (b) governed by the laws of the company’s home jurisdiction.
The indirect method is commonly known as “business process outsourcing” or “professional employer services” but also goes by many other names, and there are various interchangeable terminologies used. Essentially, this is a “third party employment” arrangement, whereby a foreign employer would engage a “local host employer” as a service provider, and this service provider would then engage the employees directly to perform services for the foreign employer. These local “professional employer organisations” would be responsible for arranging the payroll and statutory contributions and deductions for these “leased employees”, and would be the official “employer of record”. Using a local entity is unavoidable where the employee needs to apply for a work permit/visa.
I’ve advised employer clients on the engagement of employees using all of these options, and each of them have their respective advantages and disadvantages, and potential pitfalls for both employers and employees.
This article reviews the Industrial Court decision in Wong Wai Che vs. Quest BPO Sdn Bhd (Award No. 201 of 2021), involving an employee engaged by a foreign employer entity via a Malaysian service provider.
Is it legal for Malaysian employers to make vaccinations mandatory for employees?
The COVID-19 pandemic has brought up seemingly endless unique legal challenges for businesses and employers for the past 18 months, and counting. Beginning with lockdown and restrictions, remote working, paycuts, retrenchments and reorganisations, businesses in Malaysia and many other jurisdictions are now focusing on reopening, and hopefully moving into a post-pandemic future.
In recent weeks, we have been reading about the issue of mandating vaccines for employees. The legality of so-called “no jab no job” policies continues to be debated in major jurisdictions such as the UK, US, and Europe, where the reopening of the economy is at a more advanced stage than Malaysia, and where many companies have been implementing mandatory vaccination policies. Multinational companies with a Malaysian presence are now looking to roll out those policies in their Malaysian offices too. However, the law can be very different across jurisdictions, and employers will need to tread with caution and consider not just the legal but practical repercussions before making vaccinations mandatory for their employees.
In this article, I set out the legal position on this issue, and the key issues employers need to consider. I’ve also previously shared some of my views on this with The Malay Mail in their piece earlier this month — “Can Malaysian employers make Covid-19 vaccinations mandatory for their staff? Lawyers explain.”
Chasing the Intangible: Cryptocurrency Fraud and Disputes
Lee Shih and Cheryl Yee write about the rise of cryptocurrency fraud and disputes.
With the rise in the value of Bitcoin and other cryptocurrencies, there is also a significant rise in fraud and disputes relating to cryptocurrency. We highlight some of the recent legal developments.
Bar Council finally reverses its own ban; allows law firms to use virtual offices
Malaysia’s Bar Council (“BC”) today announced, via Circular 324/2021 to its members, that after more than six years, it is finally reversing its own ban on law firms operating via virtual offices.
This issue first arose in March 2015, when the BC suddenly issued a Circular immediately banning lawyers from practising through virtual offices. The BC asked lawyers to “cease such operations with immediate effect” and warned that “the Bar Council may take disciplinary action against lawyers who are reported to be operating through virtual offices”. The ban was put on hold temporarily as a group of lawyers requested a discussion with the Legal Practice Committee, but in August 2015 the BC made a firm decision to ban the practice.