Bankruptcy Amendments: The New Insolvency Rules and Voluntary Arrangement Rules

Lee Shih5 Comments

As I have updated in my earlier article, the amendments to the Bankruptcy Act have now all come into force on 6 October 2017. We should now all be referring to it as the Insolvency Act 1967, instead of the old Bankruptcy Act 1967.

As a reminder, the new term Insolvency Act 1967 still merely refers to individual insolvency or individual bankruptcy. It does not involve corporate insolvency. Further, even under the Insolvency Act 1967, it continues to refer to the act of bankruptcy and the bankruptcy order.

Going hand in hand with the renamed Insolvency Act 1967, there are now a host of new rules that come along with the Act. Continue reading →

Case Update: Court of Appeal considers whether an employer can dismiss an employee for insubordination

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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.

Insubordination is where an employee wilfully disobeys or ignores an employer’s legitimate instructions. Malaysia’s Industrial Court has established via many previous decisions that insubordination is capable of being a serious misconduct which is sufficient to destroy the employment relationship and justify a dismissal.

However, as is the case for employee misconduct in general, not all instances of insubordination will amount to just cause for an employer to dismiss an employee. The Court of Appeal considered this issue in Ngiam Geok Mooi v. Pacific World Destination East Sdn Bhd [2016] 6 CLJ 395.

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LexTech Conference 2017: “The Future of Law” to prepare regional lawyers for change

The Malaysian Lawyer5 Comments

We would love to invite to you to join us at #LexTech17, a legal technology conference themed “The Future of Law” organised by Brickfields Asia College and CanLaw, happening in MaGIC Cyberjaya, Malaysia on 4-5 November 2017.

TheMalaysianLawyer.com is a media partner of this conference.

LexTech Poster

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Auditors Face Greater Risk of Conflict under Companies Act 2016

Lee ShihLeave a comment

Under the Companies Act 2016 (CA 2016), there has now been a change in the law which may cause auditors to be conflicted or disqualified from a wider range of audit jobs. In particular, this may affect the larger audit firms.

Where an audit firm is appointed as the auditor of the company, every audit partner and now, with change in the law, every audit partner’s spouse cannot be an officer of the company. The CA 2016 defines an officer as including any director, secretary or employee of the company. Hence, an audit firm would appear to be conflicted from acting for a company where the spouse of an audit partner is merely an employee of the company. Continue reading →

Case Update: When an employee transfer can amount to a constructive dismissal

Marcus van Geyzel7 Comments

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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.

It is a well-established principle in employment and industrial relations law in Malaysia that the right to transfer an employee is a prerogative of the management which the Industrial Court would rarely interfere with. However, there are factors which may affect an employer’s ability to transfer an employee without consent, including the following:

  • Whether the transfer is between different roles or departments within the same location, or from one branch or location to another, or between different companies within the same Group.
  • Whether the transfer is brought about by bona fide or genuine business reasons.
  • In some cases, the practical effect of the transfer may also be relevant (eg the impact of a change in work location or job functions).

In short, employee transfers are not always straightforward. Transferring an employee without consent may result in a breach of contract or constructive dismissal.

The Industrial Court considered these issues in Ng Bee Yoong v. Capital Development Sdn Bhd (Award No. 186 of 2016).

Continue reading →

SSM National Insolvency Conference 2017: Corporate Restructuring & Insolvency under the Companies Act 2015

Lee ShihLeave a comment

On 3 October 2017, the Companies Commission of Malaysia (SSM) is holding the SSM National Insolvency Conference 2017 entitled ‘Corporate Restructuring & Insolvency under Companies Act 2016: A Paradigm Change’. I have been involved in the organising of the sessions and it promises to be a very interesting conference. The registration fee is RM700.

I will be speaking and moderating Session 2 on ‘Corporate Rescue Mechanism: How It Will Work’. Joining me will be Mohamed Sufyan Mohamed Mokhtar from SSM and  Victor Saw of PwC.

Under the Companies Act 2016, the corporate rescue mechanism is made up of corporate voluntary arrangement and judicial management. Although the corporate rescue mechanism provisions have not been brought into force yet, it is anticipated that these provisions will come into effect by May 2018. In the meantime, the new draft Corporate Rescue Mechanism Rules are close to being finalised as well.

In our Session 2, the speakers will be fleshing out the application of the corporate voluntary arrangement and judicial management through factual scenarios. That should assist in seeing the practical implementation of these new mechanisms.

The other topics covered at the National Insolvency Conference are:

  • The World Bank’s Perspective on Debtors’ and Creditors’ Rights.
  • New Guidelines in Striking Off of Companies and Asset Management of Dissolved Companies.
  • Impact of the Companies Act 2016 on Winding Up.
  • What It Takes to Become an Insolvency Practitioner.

The full brochure and registration form can be found here.