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KKDN:PQ/PP/1505(13829) The articles in this newsletter are also available on our website: www.taypartners.com.my
Contents
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The Malaysian Personal Data Protection Act 2010: A Brief Overview by Oan Suet Yen
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Competition And Intellectual Property by Tepee Phuah
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Overview of Debt Recovery & Civil Procedure in Malaysia by Jasmine Ong
Great deal of information is already gathered about each of us, by private companies as well as government agencies, and we often have no idea how it is used or whether it is accurate
~ Bill Gates, 1996 ~
Over the past decade, with the rapid development of technological advances and in the area of Information and Communication Technology, vast amounts of personal information are being transmitted, collected, stored and used daily. This in turn opens up an opportunity for processing and also mis-processing of personal data resulting in mounting pressure for data protection law to be enacted around the world. Recently, there has been considerable hype in the AsiaPacific region in relation to privacy regulations. Individual countries are particularly careful to align their domestic legislation and policies with international developments on data protection and are more likely to pass data privacy regulations in sync with global or regional standards as personal data protection law is now a trade prerequisite recognized by international communities for initiating bilateral or multilateral trades. As for Malaysia, after waiting for almost a decade, the Personal Data Protection Bill 2009 was finally tabled in Parliament on 19 November 2009 and on 5 April 2010, the Lower House passed the Bill. The Personal Data Protection Act 2010 (PDP) will soon be enforced, after the Royal Assent and gazetting. In introducing the Bill in the Dewan Rakyat, the Deputy Minister of the Ministry of Information, Communication and Culture acknowledged that new technologies and changing market trends have made information in the global economy, especially the personal data of individuals a valuable commodity. Once in force,
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Is A Higher Approval Threshold The Answer? by Tay Beng Chai
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LAW Regional Meeting KL by Ronald Tan
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Tay & Partners Hosted Exclusive Luncheon at Forlino Restaurant in Singapore by Tay Beng Chai
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Announcement and News
for purposes of processing personal data otherwise than for transit through Malaysia. The term establishment covers an individual who is ordinarily a resident in Malaysia, a body incorporated under the Companies Act 1965, a partnership or other unincorporated association formed under Malaysian law and a person maintaining an office, branch, agency or regular practice in Malaysia. The Act only applies to the processing of personal data in respect of commercial transactions. A commercial transaction is widely defined as any transaction of a commercial nature, whether contractual or not which includes any matters relating to the supply or exchange of goods or services, agency, investments, financing, banking and insurance. There must be a commercial element in the processing of the personal data to attract the application of the said Act. There will be significant changes in the way the private sector collects and keeps data and companies and organisations will need to embark on an audit exercise to examine their current policies, processes, contractual rights and obligations and third party notifications in relation to personal data.
EXEMPTIONS
The Act expressly excludes its application to the federal and state governments thus exempting these public authorities, which represent the major data controllers and processors in the country from being subjected to the Act. The Act however does not go further to define federal government and state governments. As such, it is unclear if the local municipal councils and authorities, statutory bodies or state owned corporate entities are bound by the PDP. The law is also not applicable to any data processed wholly outside Malaysia unless that personal data is intended to be further processed in Malaysia. This would mean that the law is not applicable to internet data gatherers, unless it can be shown that the said data is intended for use in Malaysia. For example, a Bruneian data user who gathers personal data from data subjects in Malaysia is not subjected to the PDP, unless it can be shown that the said data is intended to be used in Malaysia. Also, information processed for the purpose of credit reporting business by credit reporting and referencing agencies such as Credit Tip Off Service (CTOS) are not subjected to the law and are regulated separately by other laws, mainly the Credit Reporting Agencies Act 2009. The Act also provides some exemptions, total and partial exemptions. Data which is processed only for the purpose of the individuals personal, household affairs and for recreational purposes is totally exempted. 2
a) General Principle: The Act does not allow a data user to process any personal data unless the data subject has given his consent to the processing of the personal data. The law also provides that any personal data shall not be processed unless the data is processed for a lawful purpose directly related to the activity of the data user. The processing of the data must be necessary for or directly related to that purpose and the data must not be excessive in relation to the purpose. It is regrettably noted that the law does not define consent and whether the consent must be express or can be implied. As such, arguably, consent can be oral or implied from conduct. However, it is important that in obtaining the consent, the data subject has to be clearly informed of the proposed processing and its purpose in advance before such acts can be carried out. The data user must bear in mind that the consent, once granted, may not necessarily endure forever as the data subject may by notice in writing withdraw the said consent to the processing of his personal data in respect of which he is the data subject. Any such processing of personal data must cease upon receipt of the said notice. No time limit for withdrawal of consent is stipulated. As such, the data subject is entitled to withdraw his consent at any time. Consent in this context by the data subject could be express or implied as the PDP provides for clear instances where consent by the data subject must be made explicitly. An instance when the explicit consent of the data subject is required is when the data user is processing sensitive personal data and this includes medical history, political opinions, religious beliefs and commission or alleged commission of any offence. b) Notice and Choice Principle: A data user is duty bound to inform the data subject by way of a written notice, about the processing of his personal data. Such notice must be given to the data subject as soon as practicable by the data user. c) Disclosure Principle: In the absence of consent by the data subject, PDP prohibits the data user from disclosing the personal data. The data user can only disclose the personal data for the purpose or directly related purpose, of which the data was disclosed at the time of collection. Also, the data user can only disclose the personal data to a third party or a class of third parties, whose existence is made aware to the data subject and the data subjects consent had been obtained before the personal data can be processed by the third parties. d) Security Principle: The law requires the data user to protect and safeguard the personal data of the data subject by taking practical steps to implement security measures thereto. The data user must protect the personal data from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction. The data user must take steps that commensurate with the risks of processing the data while having regard to the cost for the implementation of the same. There is thus a balancing act
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to be done between the seriousness of the consequences of a failure to secure the personal data and the costs implications involved in protecting the same. e) Retention Principle: The personal data shall not be kept for longer than is necessary. However, the PDP does not stipulate the time frame allowed for storage of the personal data but leaves it to the discretion of the data user. Once the data is no longer required for the purpose for which it was processed, the same must be destroyed or permanently deleted. f) Data Integrity Principle: The integrity of a data is a crucial element in the law. A data user shall take reasonable steps to ensure that the personal data is accurate, complete, not misleading and kept up to date. The data user must also maintain the data current for the purpose, including any directly related purpose, for which the personal data was collected and further processed. g) Access Principle: A data subject must be given access to his personal data held by the data user and can request for the data to be corrected if the data is inaccurate, incomplete, misleading or not up-to-date.
needs, emoluments and other service requirements for the commission. The commission will be closely linked to the Malaysian Communications and Multimedia Commission (MCMC) as it applied computer forensic knowledge. A Commissioner will be appointed for the purpose of supervising the implementation of the Act. The Commissioner will be responsible for implementing and enforcing the law including the formulation of the operational policies and procedures. The Commissioner will be accountable to the Minister who is empowered to dismiss the Commissioner and who determines the Commissioners remuneration and income, in consultation with the Minister of Finance. An Appeal Tribunal will also be established, which will have powers to review any decision of the Commissioner.
DRAWBACKS
The PDP law is a long overdue and much anticipated piece of legislation that is hoped to curb unfair and unethical practices with respect to personal data, far beyond the reaches of common law. The Act unfortunately does not extend to government and public authorities and thus, rendering its narrow application. To exclude the Government from the application of the PDP would be contrary to the objective of the PDP in protecting the personal data of its citizens as massive amounts of personal data are being processed and stored with the government such as the National Registration Department and the Inland Revenue Board. The government seems over-reliant on the Official Secrets Act to protect such information but the Official Secrets Act has a different objective and application, not suited to protecting personal data and integrity of such data generally. Data subjects are given rights under the Act which extend beyond the rights conferred on them under existing legislation or common law, such as right of access and data integrity. The Official Secrets Act empowers the Government, and does not confer rights on individual citizens or persons. Further, the PDP applies only to the processing of personal data in respect of commercial transactions as defined earlier. It is sometimes not easy in certain circumstances to draw the line between commercial and noncommercial transactions. For example, an individual who participates in a census or a non-profit making survey may have also submitted his personal data. The processing of his personal data in this context may not be deemed to be in pursuance of a commercial transaction as it would not include matters relating to the supply or exchange of goods or services, for instance. Thus, a more liberal interpretation will have to be taken of commercial transactions if the intent of the Act to protect personal data is not to be defeated. An otherwise restrictive construction would narrow down the reach of the PDP law to organisations which process personal data in the course of commerce only. The remedies afforded under the Act are also limited, as the Commissioner is not empowered to order compensation for damage to data subjects, and there is no express right of a data subject to pursue a civil claim for noncompliance or breach of the law. This is unlike the law in other jurisdictions such as Britain and Hong Kong where breaches of data protection law are subject to legal action under both criminal and civil law and any individual who suffers any damage or distress by reason of the breach would be entitled to file a civil suit and claim compensation for such damage or distress.
PENALTIES
Failure to comply with the provisions of the law is punishable by a fine not exceeding RM300,000 and/or imprisonment for a term not exceeding two years, or both. Subject to the due diligence defence, directors, managers or other similar officers have joint and several liability for non-compliance by the body corporate.
ENFORCEMENT MECHANISMS
According to the Information, Communication and Culture Minister Datuk Seri Dr Rais Yatim recently, a commission under the PDP will be created by January next year. He also stated that discussions have been conducted with the Public Service Department (PSD) on the issues of manpower
Further, since the Commissioner is only accountable to the Minister, it is arguable that the Commissioners position may not be independent, and there will not be the same level of transparency, compared to data
privacy Commissioners in other jurisdictions. Also, there is no obligation to disclose the Commissioners reports, accounts and other information to
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Parliament or to the public, though the Commissioner is required to furnish such information to public authorities upon the Ministers direction.
(a) Any activity, directly or indirectly in the exercise of governmental authority; (b) Any activity conducted based on the principle of solidarity; and (c) Any purchase of goods or services not for the purposes of offering goods and services as part of an economic activity Generally, the CA prohibits concerted practices between enterprises or association of enterprises from preventing, restricting or distorting competition in Malaysia.
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Competition And Intellectual Property
CONFLICT BETWEEN IP AND COMPETITION?
It has been much debated upon by the intellectual property (IP) right holders if the introduction of competition policies would affect and create conflicts between intellectual property rights (IPRs) and competition. Many have concluded that there are inherent tensions between IPRs and competition. In a market economy, right holders of IPRs do convey some degree of market power and IPRs are seen as a form of monopolistic privilege granted to right holders in recognition of their right to recoup the time and costs invested in the development of the IP. In the area of research and innovation, IPR holders view the monopolistic privileges granted as an important incentive for further innovation. By virtue of the monopolistic rights granted to IPR holders, competition can be restricted (albeit for a limited time period) and there is no limit as to how much right holders can charge in respect of their products which incorporate use of the IP. Since competition policies and laws are designed to restrain the use of market power, prevent excessive or monopoly profits and promote consumer interests and welfare, the monopolistic nature of IPRs can be in conflict with competition policies and laws as monopoly would prevent or deter competition. There is thus a very delicate balance required to be struck between protecting and upholding the monopolistic privileges granted to right holders of IPRs and at the same time, promoting fair competition and safeguarding the interest of consumers. If the balance is tilted excessively towards upholding the monopolistic privileges of IPR holders, such privileges granted will invariably be abused for unfair commercial advantage that will be detrimental to the overall market efficiency. If on the other hand the balance is tilted excessively towards promoting fair competition to the extent IPR holders are deterred from properly exploiting their IPRs and earn sufficient profits to recoup the time and costs invested in the research and innovation, research and innovation will invariably be reduced and dynamic efficiency will decrease as a result of reduced innovation. In Malaysia, the balance is currently very much titled towards protecting the monopolistic privileges of IPR holders. For example, the rights granted to patent owners under the current Patents Act 1983 allow the patent owner the exclusive right to exploit the patent granted and no third party is allowed to exploit the patented invention without the consent of the patent owner. This gives the patent owner the prerogative to allow or refuse grant of licence to a third party to use the patented invention. Whilst the patent owners refusal to grant access or licence to use the patented invention by the third party may be perfectly legitimate under the Patents Act, if the reason for refusing the supply or grant of a licence to the third party is purely to deter competition and the patent owner is unable to objectively justify its conduct (i.e. that the patent owner has behaved in a proportionate way in defending its legitimate commercial interest in refusing to supply or grant the licence), the patent owners conduct can potentially constitute an abuse of a dominant position and be in breach of the provision of the CA. Also, in the area of copyright protection, the current Copyright Act 1987 grants to copyright owners exclusive rights in their creative works which include the right to reproduce and distribute copyrighted works, the right to publicly perform or communicate these works and the right to commercially rent these works to the public. Whilst there are many requirements and qualifications before ones work may be protected under the current copyright regime to maintain the appropriate balance between exclusive control by the copyright owner of its copyrighted work and public access which include amongst others such as the originality requirement, the idea-expression dichotomy, durational limits of copyright protection and the fair dealing privilege, such qualifications or requirements which are currently provided in existing copyright law may not be sufficient in view of the emergence of widespread use of mass-market contracts by copyright owners to enhance their dominance and power in the market. In the widely reported anti-competition case involving Microsoft Corporation, the government of United States has contended, among other claims, that Microsoft has illegally bundled its web browser, Internet Explorer, with its Windows operating system. Although Microsoft did not require computer manufacturers to install Internet Explorer along with its licensed Windows operating system, the licence provisions in respect of use and installation of the Windows operating system by the computer manufacturers prohibit the manufacturers from installing any other web browsers other than Internet Explorer. Whilst use of mass-market contract by copyright owners such as Microsoft to enhance market control may not technically be illegal under current copyright law, however, because such exercise of right by copyright owners is clearly beyond what is permissible in the public interest, the use of mass-market contracts to gain market control and increase sale by copyright owners may potentially constitute an abuse of dominant position which is contrary to the provisions of the CA.
It is clear that there are potential conflicts between our current IP legislation and the CA unless changes are made to existing IP legislation to achieve a compromise with with anti-competitive behavior. In certain jurisdictions such as the United States, the government has introduced compulsory licences to restore competition and remedy anti-competitive practices. The unfair use of patents by patent owners as a basis for price-fixing or entry-restricting cartels as well as the consummation of market-concentrating mergers in which patents played an important role and practices that extended the scope of patent restrictions beyond the bounds of the patented subject matter are some of the grounds for granting compulsory licensing by the US government. In Singapore, amendments to its IP legislation have already been made to safeguard against possible anti-competitive behavior arising from right holders abuse of their IPRs. Section 51(1) of the Singapore Patents Act provides for certain restrictive licensing conditions such as prohibiting the licensee from using a competitors patented product or process whilst Part VII of the Singapore Copyright Act mandates the Copyright Tribunal to arbitrate licensing issues arising between licensors and licensees. Anti-competitive conduct is also dealt with under Section 27(1) of the Layout Designs for Integrated Circuits Act. Under Section 27(1) of the Layout Designs for Integrated Circuits Act, the Court is empowered to
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INTRODUCTION
In debt recovery matter, the most frequently asked question by a client after the issuance of a letter of demand is, What is the next course of action to adopt? What if the debtor fails to respond to my demand? This article is written to provide an insight of debt recovery in Malaysia particularly recovery by way of civil action in the court.
Conclusion
The enactment of the CA by the government is laudable and is consistent with the goal of Association of Southeast Asian National (Asean) of having competition policies by all member countries by 2015. There are however potential conflicts between our current IP laws and the CA unless the present IP system is evaluated and guidelines relating to the treatment of IPRs under the CA are introduced in order to strike a balance in meeting innovation and development needs and at the same time, promote fair competition and safeguarding the welfare and interest of the public. If exceptions, exemptions and limitations are adequately provided for by taking into consideration the development needs as well as the right to access essential goods and services by the consumer, IP and competition laws may not necessarily be inconsistent and incompatible, rather they can work together to develop dynamic efficiency through increased innovation.
LIMITATION PERIOD
Generally, the limitation period in Malaysia is 6 years from the date the cause of action accrues5 for most claims.
Written by Tepee Phuah Tepee Phuah is a partner in the Intellectual Property and Technology Department with focus on IP Protection, Litigation and enforcement. For further information and advice on the article above or any areas of intellectual property and technology work, you may contact: Tepee Phuah (tepee.phuah@taypartners.com.my)
Apart from summary judgment, there are various judgments which can be obtained by the plaintiff against the defendant prior to a full trial as summarized below: (a) Judgment in default of appearance Failure of the defendant to enter appearance after summons or writ has been successfully served on the defendant. (b) Consent judgment The plaintiffs claim is undisputed.
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Overview of Debt Recovery & Civil Procedure in Malaysia
(c) Judgment in default of defence Failure of the defendant to file defence. (d) Judgment on admission The defendant, by his pleading or otherwise in writing, admits the truth of the whole or any part of the action.
ENFORCEMENT OF JUDGMENT
The limitation period for enforcement of judgment is 12 years from the date judgment10. However, if the judgment is enforced after 6 years from the date of the judgment, leave of the court must be obtained and no interest can be claimed prior to enforcement11.There are various methods in enforcing a judgment. Judgment debtor summons12 is available for discovery of information pertaining to assets of judgment debtor and the Court may order payment to be made in lump sum or installment. Failure to obey a court order may result into committal proceeding. The judgment creditor may also enforce the judgment by way of writ of seizure and sale13 which is carried out by sheriff or bailiff by way of selling the judgment debtors movable property. If the judgment debtor has immovable property, the judgment creditor may apply for a prohibitory order14 prohibiting the judgment debtor from transferring, charging or leasing the property. On the other hand, the judgment creditor may also enforce the judgment by way of garnishee proceeding15. The judgment creditor may apply to the court to recover money belonging to the judgment creditor which is in the hand of a third party, for instance the financial institution. If the judgment creditor has assets in the form of securities, a charge may be imposed on securities such as shares, bonds or dividends which the judgment debtor is beneficially entitled to by way of a charging order16. If the judgment debtor does not have assets to satisfy the judgment debt17, the judgment creditor can enforce the judgment against an individual by way of bankruptcy proceeding. Bankruptcy is a proceeding where the State through an appointed officer (Director General of Insolvency) takes possessions of the debtors property, realize it and distribute it equitably among the debtors creditors according to the ranks of creditor. However, as the priority of distribution is given to the secured creditors, there is no guarantee that the judgment creditor will be able to recover the full judgment sum once the judgment debtor is adjudicated a bankrupt because a judgment creditor is an unsecured creditor. Alternatively, if the judgment debtor is a company, the judgment creditor may petition to wind-up the judgment debtor on the basis of disability of the judgment debtor to satisfy the judgment debt18. Once a company is wound up pursuant to a court order, the appointed liquidator will take into custody all the property and things in action to which the company is or appear to be entitled19. In order for the judgment creditor to benefit from any distribution under the winding-up in the form of dividend, the judgment creditor must file the proof of debt. Similarly, there is no guarantee that the judgment creditor will be able to recover the full judgment sum since a judgment creditor is also an unsecured creditor.
Written by Jasmine Ong (jasmine.ong@taypartners.com.my) Leonard Yeoh (leonard.yeoh@taypartners.com.my) Leonard heads the Litigation and Dispute and Resolution Practice Group. For further information and advice on the article above or any areas of corporate and commercial advisory work, you may contact: Leonard Yeoh (leonard.yeoh@taypartners.com.my)
(Footnotes) 1 There is proposed amendment to the Subordinate Courts Act 1948 to increase the monetary jurisdiction of the Magistrate Court (from RM25,000.00 to RM100,000.00) and the Sessions Court (from RM250,000.00 to RM1,000,000.00) 2 Section 90 of the Subordinate Courts Act, 1948 3 Section 65 of the Subordinate Courts Act, 1948 4 Section 65 of the Subordinate Courts Act, 1948 5 Section 6 (1) of the Limitation Act, 1953 6 Magistrate and Sessions Court 7 High Court 8 Order 22A Rules of the High Court, 1980 9 Malaysia has a 2-tiered appeal system 10 11 12 13 14 15 16 17 Section 6 (3) of the Limitation Act 1953 Order 46 rule 2 Rules of the High Court, 1980 Debtors Act 1957 Order 45 and 46 of Rules of the High Court, 1980 Order 47 of the Rules of the High Court, 1980 Order 49 of the Rules of the High Court, 1980 Order 50 Rules of the High Court, 1980 The debt must not be less than RM30,000.00 inclusive of interest (see section 5 of the Bankruptcy Act, 1967) 18 The debt must not be less than RM500.00 (see section 218 of the Companies Act, 1965) 19 Section 233 of the Companies Act, 1965
Injunction
Meanwhile, interim relief in the form of interim injunction can be given by the court before the action is set down for full trial. The Malaysian High Court is empowered to grant various injunctions for instance: (a) Mareva Injunction To restrain the Defendant from removing from the jurisdiction, his/her assets which may be necessary to meet the plaintiffs pending claim (b) Prohibitory Injunction To prevent the Defendant from doing an act for example restraining the defendant from selling or dealing with shares of the company (c) Mandatory Injunction To compel the Defendant to do an act. (d) Anton Piller Order To compel the defendant to permit the plaintiff to enter the defendants premises to search for or seize certain documents or property (danger that the defendant will dispose of destroy all incriminating evidence in his/her possession)
FULL TRIAL
Trials are conducted in open court and witnesses for the plaintiff and defendant will be called to tender oral evidence. The trial involves examination-in-chief, cross-examination, re-examination and finally, submission by the plaintiff and defendant. Upon hearing and considering the evidence and submission by both parties, the judge will deliver a decision. An order or judgment takes effect from the day it is pronounced and parties to the action are bound by it unless an appeal9 is lodged against the decision of the judge.
The debate on Securities Commission and Bursa Malaysias proposal to review the present simple majority requirement when companies sell their business
When it comes to audacious acquisitions, Malaysians prefer to buy the targets business rather than purchase the shares of the target. Included in this list are the RM 6.7bil acquisition of Southern Banks business by Bumiputra-Commerce Holdings Berhad in August 2007 which gave birth to CIMB Bank in its present day structure, the acquisition of Malakoff Bhds business by MMC Corp Bhd for RM 9.3 bil in May 2007 and the Synergy Drive Bhd RM 35 bil acquisition of several listed companies plantation business to emerge as the worlds largest plantation company in November 2007.
Equality of Treatment
One would not blame minority shareholders in an Asset Disposal if they are sometimes left wondering whether substantial shareholders are being offered deals not available to them. Equality of treatment is a key feature in the Code. It is conspicuously missing from the Asset Disposal approach. Can the gap between the two camps be narrowed by requiring all substantial shareholders ( and not just major shareholders ) who are not prohibited from voting and who wish to vote to first declare they do not have special arrangements with the purchaser in the Asset Disposal?
Information to Shareholders
A prospective purchaser must not give information to some and not all shareholders of the vendor company in the same way this principle is respected in a share offer under the Code. This point is related to the first point on equality of treatment. A level playing field must exist at all times before the deal is closed.
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Conclusion
Vendors Board in an Asset Disposal should embark on price discovery and create conditions which open up price possibilities. Ultimately, it comes down to a price as the clich goes - every shareholder has a price. Price discovery works better if regulatory and foreign equity restrictions are kept to the minimum. This will open up the field to more bidders. Fortunately for Malaysia, the regulatory landscape is heading in that direction with gradual but certain liberalization in the recent years. Finally, the necessary safeguards needed in Section 132C CA are not necessarily numbers or percentages but provisions for a level playing field managed by a vigilant and efficient Board.
competitive price tension. It must be prepared to open its books to another serious and credible vendor for due diligence if this has been afforded to the first offeror. ( In the Malaysian context, this is not always possible, for example in the banking sector where prior approval of the Central Bank is needed even before parties can talk of a deal. ) The Board must equally ensure that it does not frustrate the offers and prevent them from being brought to shareholders for consideration unless the business is not for sale or if the offers are not credible.
Tay & Partners Played Host in March 2010 to the LAW Asia Pacific Regional Meeting in Kuala Lumpur
Tay & Partners played host to the Lawyers Associated Worldwides (LAW) Asia Pacific Regional Meeting in Kuala Lumpur during the 25th -27th March 2010, which was held at the Mandarin Oriental Hotel.
LAW is an association of independent law firms located in over 145 major commercial centers throughout the world, spanning six continents. Each member firm has local expertise and firsthand knowledge of the customs and practices in its own jurisdictions. LAW affords national and global coverage to each member firms clients with responsive, accessible and accountable legal representation wherever it is required. Clients with cross-border needs are discovering that a well run association of independent law firms like LAW, having in-depth local expertise and situated in major commercial centres, is indeed a viable and cost effective alternative to the rate structures of the global law firms with far fewer offices. The March 2010 Kuala Lumpur meeting was set out not only to have its members discuss issues relating to LAW business matters but the meet also provided a platform to its attending members to share their respective experiences. Mr. Gaeme McFadyen, CEO of Trilby Misso spoke on creating the right working culture to drive high performance in a legal firm; Lavan Legals Special Counsel, Mr. John Garvey provided the attendees with an overview of mining and oil and gas projects in Western Australia; and Mr. Rajiv Maharaj, founder of Sunline Public Relations, Melbourne, Australia spoke on public relations and media engagement strategies for legal firms. Being in Malaysia, the meeting gave Tay & Partners, the opportunity, as host, to invite local industry experts to give a talk. Over the course of the 10
day sessions, the attending members were treated to a broad overview of the Malaysian economic landscape by the Chief Economist of the Malaysian Rating Corporation Berhad (MARC), Mr. Nor Zahidi Alias; then, they were presented with a comparison study of the Malaysian Equities Market and regional bourses by OSK Investment Banks Head of Equity Capital Markets, Mr. Gan Kim Khoon. The highlight came in the form of a double feature presentation on Malaysia being a hub of International Islamic Finance. The session was conducted by our Islamic Finance specialist, Partner Ronald Tan and the very distinguished Assistant Governor Gopal Sundaram, from the Malaysias Central Bank. Assistant Governor Gopal Sundaram spoke in great depth and provided an excellent insight into how Malaysias Central Banks Islamic Finance promotions unit, MIFC, with their comprehensive range of Islamic fund management products and the infrastructure in place showcases that Malaysia has the right and necessary tools in positioning itself as an international Islamic finance hub.
Written by Ronald Tan Ronald heads the Debt Capital Markets Practice Group For further information and advice on the article above or any areas of corporate and commercial advisory work, you may contact: Ronald Tan (ronald.tan@taypartners.com.my)
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Tay & Partners Hosted Exclusive Luncheon at Forlino Restaurant in Singapore
Tay & Partners hosted an exclusive luncheon on the 4th May 2010 in conjunction with the Inter-Pacific Bar Association 20th Annual Conference week held in Singapore. The luncheon was held at Forlino, a fine dining Italian restaurant located at the Fullerton Road, with views of the Marina Bay, including the Fullerton Hotel, The Merlion, City Hall, Suntec City, The Esplanade and the Marina Bay Sands. This luncheon was mainly intended to bring togheter our close network of legal firms regionally and internationally. Mr. Tay Beng Chai our Managing Partner and Head of Corporate & Commercial Practise was the main host, he discussed the value and appreciation he has for the success they have achieved by working togheter. The attendees were from reputed law firms from around Singapore, the United Kingdom, India, Japan, South Korea, Indonesia etc. In the past, these firms have worked individually with Tay and Partners on various matters and this was a perfect opportunity for everyone to meet in person and exchange ideas. We would like to thank everybody who attended this event.
A Message from: Tay Beng Chai Beng Chai is the Managing Partner and he heads the Corporate Commercial Practice Group For further information and advice on the article above or any areas of corporate and commercial advisory work, you may contact: Tay Beng Chai (bengchai@taypartners.com.my)
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Legal TAPs is a collective effort of the firm to bring relevant legal updates and information to you.
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T&P ANNOUNCEMENTS AND NEWS
TAY BENG CHAI, our Managing Partner and Head of the Corporate & Commercial Practise Group attended the Inter-Pacific Bar Association (IPBA) 20th Annual Conference, which was held in Singapore from 2 to 5 May 2010. He also attended the inaugural Capital Raising for South East Asian Companies Forum held on 23 March 2010. In April, he attended the Trowers & Hamlins organized seminar titled Trade and Investment in the Middle East at the The British High commissioners Residence. He also attended the The Securities Commission Malaysia and Bursa Malaysia hosted the annual Corporate Governance Week (CG Week) from 28 June to 2 July 2010 to further promote good corporate governance practices among public listed companies (PLCs). Most recently in June 2010 he attended the Competition Act 2010 Forum at the Sime Darby Convention Center organized by MICCI. SU SIEW LING, our Partner in the IP & Technology Practice group attended the INTA Annual Conference in Boston in May this year. She recently presented a paper on Basics of IP and Licensing in a seminar held on 28 July 2010 at the Le Meridien Hotel organized jointly by Malaysian Biotech Corporation Sdn Bhd and Licensing Executive Society Malaysia aimed at Bionexus companies.
Editorial Committee Neoh Lay Choo Jeffrey Ershad Ali Su Siew Ling Ronald Tan Leonard Yeoh
This publication provides a summary only of the subject matter covered and is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.
INTERNAL MOVEMENT
TEPEE PHUAH, has been promoted from a Senior Associate to a Junior Partner with immediate effect. She graduated from the University of Wales, Cardiff with an LL.B (Hons) in 2000. She was admitted as a Barrister to the Bar of England & Wales in 2001 and is a member of the Honourable Society of Grays Inn, London. Tepee was admitted as an Advocate & Solicitor of the High Court of Malaya in 2002. She practises in the areas of intellectual property and information technology laws.
ON BOARD
SEAN CHUA, graduated from the Multimedia University with an LL.B (Hons) in 2009. He was admitted as an Advocate and Solicitor of the High Court of Malaya in 2010. He practices in area of general litigation, land & tenancy disputes and in the area of trusts and administration of estates.
NOTEWORTHY TRANSACTIONS
Tay & Partners advised in the recent acquisition of Natural Oleochemicals Sdn. Bhd. by Wilmar International. Wilmar will buy 91.38% of Natural Oleochemicals Sdn from Kulim (Malaysia) Bhd., Wilmar said in a statement to the Singapore Stock Exchange on 21 July 2010. Funding for the acquisition will be from internal resources and bank borrowings, it said. Malaysia, the second-largest producer of palm oil, also represented 25% of the global production capacity of fatty acids last year. Purchasing Natural Oleochemicals would give Wilmar control over a company that accounted for 20% of Malaysias fatty acids production capacity. The agreement is to buy a majority stake in a Malaysian producer of oleo-chemicals used in soaps for 450 million ringgit ($192 million). Tay & Partners advised Etika International Holdings Limited (Etika or the Group) on the conditional sale and purchase agreement for the proposed acquisition of 100% equity interest in Susu Lembu Asli (Johore) Sdn. Bhd. (SLAJ) and Susu Lembu Asli Marketing Sdn. Bhd. (SLAM) for a cash consideration of RM89.5 million (approximately S$38.5 million), The announcement was made on 20 July 2010 and the takeover of SLAJ and SLAM will enable Etika to expand to wider ready-to-drink dairy segment. [source : SBR.com.sg]
6th Floor, Plaza See Hoy Chan Jalan Raja Chulan 50200 Kuala Lumpur Tel: 603 - 2050 1888 Fax: 603 - 2031 8618 Email: mail@taypartners.com.my
We would like to take this opportunity to wish our Muslim friends and readers