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COMPETITION LAW & ANTITRUST
Finding of Non-Infringement under Section 39 of the Competition Act 2010 ("CA") of Avery Dennison Materials Sdn Bhd ("Avery Dennison") and UPM Raflatac Sdn Bhd ("UPM Raflatac")
Avery Dennison and UPM Raflatac announced a price increase between 7% and 16% for all orders placed or goods delivered from 13 April 2016 (for UPM Raflatac) and 16 April 2015 (for Avery Dennison) respectively. The Malaysian Competition Commission ("MyCC") found that the increase in price was caused by the weakened exchange rates of the Malaysian Ringgit against the US Dollar by 13% since August 2014. This in turn had a direct impact on the components and raw materials purchased by the two companies. The MyCC concluded that there was no infringement of section 4(1) of the CA as there was no price fixing between the two companies.
For further information regarding competition law and antitrust, please contact
Dato' Johari Razak
jorazak@shearndelamore.com
K Shanti Mogan
shanti@shearndelamore.com
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Datin Paduka Phang Oi Choo v Tan Sri Datuk G Gnanalingam &
Other Appeals [2017] 5 CLJ 1
The appellant was sued by the Port Kelang Authority ("PKA") in the High Court for breach of fiduciary duties in her capacity as a general manager and Board member of the PKA in relation to the Port Kelang Free Zone Project ("Project"). The appellant initiated third party proceedings against 26 Board members of the PKA ("third parties") in the High Court. This was disallowed and the matter went on appeal.
In allowing the appeal and the third party proceedings, the Court of Appeal held that the appellant was required to show that the third parties were joint tortfeasors and participated in the procurement of a tort causing loss and damage to PKA, if proven. The Court found that the third parties had jointly participated and/or were responsible for the decisions taken on behalf of PKA in relation to the Project.
Nor Azlina Abdul Aziz v Expert Project Management Sdn Bhd [2017] 5 CLJ 58
An agreement pertaining to the development and construction of the plaintiff’s land had as conditions precedent the requirement for the defendant to obtain approvals, consents, permits and licenses required from the relevant authorities for development of the land within one year from the date of the agreement. The defendant obtained the approval for conversion of the said land from agricultural to residential land after the expiry of the one-year period. The Court of Appeal held that if the conditions precedent were not fulfilled within the stipulated period, the contract became null and void and the parties were then relieved from performing the rest of the obligations.
For further information regarding dispute resolution, please contact
Datin Jeyanthini Kannaperan
jeyanthini@shearndelamore.com
Robert Lazar
rlazar@shearndelamore.com
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EMPLOYMENT & ADMINISTRATIVE LAW
Employment Injury Scheme to cover more informal jobs
The Employment Injury Scheme which comes under the Self Employment Social Security Bill 2017 was passed by Parliament last month. The scheme which will be implemented on 1 June will cover some 100,000 self-employed taxi drivers and drivers of e-hailing services such as Uber and GrabCar. Prime Minister Datuk Seri Najib Tun Razak said the Government is looking to extend the social security scheme in stages, to cover informal jobs such as fishermen, farmers, smallholders, hawkers and artists.
Companies should provide data on accidents and safety at the workplace to promote a safer working environment
National Institute of Occupational Safety and Health ("NIOSH") executive director Zahrim Osman said that the collection of data is very important to identify new risks and potential hazardous areas at the workplace. He also added that with the data, NIOSH would be able to take preventive measures including implementing policies and programmes.
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FINANCIAL SERVICES
1. New Regulated Activity of Clearing Securities or Derivatives
With effect from 18 May 2017, a new regulated activity termed as "clearing for securities or derivatives" was introduced. "Clearing for securities or derivatives" means
"whether as principal or agent, carrying on the business of assuming obligations for the delivery and payment of a person’s transaction relating to listed securities or standardized derivatives as set out in the rules of the approves clearing house."
The Securities Commission Malaysia had indicated in its 2016 Annual Report that the new regulated activity would enable a person/entity to be licensed to carry out the regulated activity of only clearing securities or derivatives without having to provide trading and execution services. This segregation seeks to promote business efficacy and reduce operational cost, thereby enabling intermediaries to focus on their niche services.
2. Amendments to the Guidelines for the Offering, Marketing and Distribution of Foreign Funds
A summary of the amendments made to the Securities Commission Malaysia’s Guidelines for the Offering, Marketing and Distribution of Foreign Funds, which came into effect 9 May 2017, is as follows:
- the introduction of two (2) new categories of permitted foreign funds:
- a one-time offering to sophisticated investors of a fund investing in income-generating real estate; and
- certain funds offered by Islamic Corporation for the Development of the Private Sector, declared as an international organisation under the International Organizations (Privileges and Immunities) Act 1992 and any regulation issued under it.
- references to Shariah compliant funds are replaced with Islamic funds.
- references to specific guidelines of the Securities Commission Malaysia and the Main Market Listing Requirements of Bursa Securities Malaysia Berhad are incorporated under specific requirements for clarity purposes.
3. Introduction to new regulatory framework to facilitate Digital Investment Management Services
A regulatory framework has been introduced by the Securities Commission Malaysia to facilitate digital investment management services in Malaysia. Digital investment management is a fund management business which incorporates innovative technologies into discretionary portfolio management services.
The new framework sets out the licensing and conduct requirements for the offering of automated discretionary portfolio management services to investors.
Consequential to the introduction of the new framework, the Licensing Handbook and the Guidelines on Compliance Function for Fund Management Companies were amended. Only licensed portfolio management companies which satisfy the criteria and requirements set out in the respective guidelines and the Licensing Handbook may provide digital investment management services to investors.
For further information regarding financial services matters, please contact
Christina S C Kow
christina@shearndelamore.com
Pamela Kung Chin Woon
pamela@shearndelamore.com
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TAX & REVENUE
Income tax
The Inland Revenue Board of Malaysia has recently issued the Tax Audit Framework 2017 to replace the Tax Audit Framework 2015.
Goods and Services Tax (GST)
The revised versions of the following Industry Guides have been published on the Royal Malaysian Customs Department's GST website:
i. Islamic Banking (revised as at 26 April 2017); and
ii. Tourist Refund Scheme (revised as at 8 May 2017).
Labuan
The Labuan Business Activity Tax (Amendment) Act 2017 has been gazetted on 18 May 2017 and has come into effect.
For further information regarding tax and revenue law matters, please contact
Goh Ka Im
kgoh@shearndelamore.com
Anand Raj
anand@shearndelamore.com
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