Legal Updates

Legal Updates for Mar - 2021

Code of Conduct for Leasing of Qualifying Retail Premises

MAS Proposes Exemption Framework for Foreign Offices of Singapore Financial Institutions

Extension of Relief Period for Specified Contracts under the COVID-19 (Temporary Measures) Act

Applying for a Moratorium in Bankruptcy Proceedings: The Requirement of a Serious and Viable Proposal

OJK Introduces Rules on Going Private and Obligation to Identify Controlling Shareholders

Indonesia's Financial Services Authority, or OJK, recently enacted Regulation No. 3/POJK.04/2021 on Implementation of Capital Market Activities. In line with its title, this regulation governs various capital market activities and the actors in it. The two main elements of this regulation are introducing the procedures to go private and identifying a public company's controlling shareholders and its obligations.

In the regulation, OJK identifies three situations where a public company can go private: voluntarily, based on an order from OJK, or based on an order from IDX. Meanwhile, on controlling shareholders, the regulation affirms OJK's policy of requiring public companies to disclose their controlling shareholders, whether direct or indirect.

OJK Introduces Rules on Going Private and Obligation to Identify Controlling Shareholders

Indonesia's Financial Services Authority, or OJK, recently enacted Regulation No. 3/POJK.04/2021 on Implementation of Capital Market Activities. In line with its title, this regulation governs various capital market activities and the actors in it. The two main elements of this regulation are introducing the procedures to go private and identifying a public company's controlling shareholders and its obligations.

In the regulation, OJK identifies three situations where a public company can go private: voluntarily, based on an order from OJK, or based on an order from IDX. Meanwhile, on controlling shareholders, the regulation affirms OJK's policy of requiring public companies to disclose their controlling shareholders, whether direct or indirect.

OJK Introduces Rules on Going Private and Obligation to Identify Controlling Shareholders

Indonesia's Financial Services Authority, or OJK, recently enacted Regulation No. 3/POJK.04/2021 on Implementation of Capital Market Activities. In line with its title, this regulation governs various capital market activities and the actors in it. The two main elements of this regulation are introducing the procedures to go private and identifying a public company's controlling shareholders and its obligations.

In the regulation, OJK identifies three situations where a public company can go private: voluntarily, based on an order from OJK, or based on an order from IDX. Meanwhile, on controlling shareholders, the regulation affirms OJK's policy of requiring public companies to disclose their controlling shareholders, whether direct or indirect.

OJK Introduces Rules on Going Private and Obligation to Identify Controlling Shareholders

Indonesia's Financial Services Authority, or OJK, recently enacted Regulation No. 3/POJK.04/2021 on Implementation of Capital Market Activities. In line with its title, this regulation governs various capital market activities and the actors in it. The two main elements of this regulation are introducing the procedures to go private and identifying a public company's controlling shareholders and its obligations.

In the regulation, OJK identifies three situations where a public company can go private: voluntarily, based on an order from OJK, or based on an order from IDX. Meanwhile, on controlling shareholders, the regulation affirms OJK's policy of requiring public companies to disclose their controlling shareholders, whether direct or indirect.

Hazards in Trade Finance: Court of Appeal Considers Issues of Assignment, Set-Off and Competing Agreements

Regional Guide to Public Mergers & Acquisitions in Southeast Asia

New Notice on Medical Monitoring Devices and COVID-19 Insurance for Foreigners

On 2 March 2021, the National Task Force Committee for Prevention and Control of COVID-19 ("Task Force") issued the Notice on Medical Monitoring Devices and COVID-19 Insurance for Foreigners who wish to Enter Lao PDR ("Notice"). The Notice follows, amongst others, the Instruction of the Task Force No. 3078/NTC dated 26 February 2021. 

The Notice sets out guidelines on the implementation of: (i) the use of medical monitoring devices; and (ii) purchase of COVID-19 insurance for foreigners who wish to enter Lao PDR. 

First Corporate Liability Charge under the Malaysian Anti-Corruption Commission Act 2009 – What Directors Need to Know

The Malaysia Anti-Corruption Commission ("MACC") has charged a company providing ship rental services under Section 17A of the Malaysian Anti-Corruption Commission Act 2009. This is the first charge under Section 17A, which came into force on 1 June 2020. For context, Section 17A imposes liability on a company and its officers holding managerial positions if persons associated with the company offer a bribe to a third party for the company’s benefit. The maximum penalty for this offence is a fine of up to RM1 million or 10 times the value of the bribe (whichever is higher), or up to 20 years imprisonment, or both.

This Update provides a brief background of the case, followed by the key issues directors and management should consider in light of these charges when accepting or performing their role in the company.

Regional Shipping Update: Shipping Law Updates – First Quarter 2021

This is the First Quarter 2021 issue of the Regional Shipping Update of Rajah & Tann Asia’s Shipping & International Trade Practice, a publication that provides a snapshot of the key legal issues in various jurisdictions where our member firms have regional presence.

In this issue, we provide an overview of the procedures for arresting a vessel in Vietnam. We also report the measures that Singapore has recently introduced to ensure safe and responsible practices in the maritime and shipping sector amidst the COVID-19 pandemic.

OMNIBUS LAW 2020: Shift to Risk-Based Licensing Set to Transform Indonesia's Investment Climate

Following the enactment of the Omnibus Law, the government has introduced the necessary implementing regulations to the law. Of the proposed changes under the Omnibus Law, one, in particular, will affect all businesses, namely the shift from a commitment-based licensing regime to a risk-based licensing regime. The new regime is reflected under Government Regulation No. 5 of 2021 on the Implementation of Risk-Based Business Licenses (“Regulation”). The Regulation is aimed at administering a more streamlined and efficient business licensing process, and in some instances, even removing the licensing requirement for certain businesses.

OMNIBUS LAW 2020: Shift to Risk-Based Licensing Set to Transform Indonesia's Investment Climate

Following the enactment of the Omnibus Law, the government has introduced the necessary implementing regulations to the law. Of the proposed changes under the Omnibus Law, one, in particular, will affect all businesses, namely the shift from a commitment-based licensing regime to a risk-based licensing regime. The new regime is reflected under Government Regulation No. 5 of 2021 on the Implementation of Risk-Based Business Licenses (“Regulation”). The Regulation is aimed at administering a more streamlined and efficient business licensing process, and in some instances, even removing the licensing requirement for certain businesses.

A Trial Extraordinaire that Breaches Malaysia’s Legal Frontiers – The SRC Trial

In a landmark decision ruling on 28 July 2020, Justice Mohd Nazlan Mohd Ghazali sitting in the High Court found former premier Datuk Seri Najib Razak (“DS Najib”) guilty of seven charges of abuse of power, criminal breach of trust and money laundering in relation to RM42 million belonging to SRC International Sdn Bhd (“SRC”). DS Najib is the most senior member of the executive branch of the government to be charged in the Malaysian court in history.

This Update discusses the legal position on how the above-mentioned offences are construed, and the key takeaways from this judgment.

Regional Shipping Update: Shipping Law Updates – First Quarter 2021

This is the First Quarter 2021 issue of the Regional Shipping Update of Rajah & Tann Asia’s Shipping & International Trade Practice, a publication that provides a snapshot of the key legal issues in various jurisdictions where our member firms have regional presence.

In this issue, we provide an overview of the procedures for arresting a vessel in Vietnam. We also report the measures that Singapore has recently introduced to ensure safe and responsible practices in the maritime and shipping sector amidst the COVID-19 pandemic.

Regional Shipping Update: Shipping Law Updates – First Quarter 2021

Regional Shipping Update: Shipping Law Updates – First Quarter 2021

This is the First Quarter 2021 issue of the Regional Shipping Update of Rajah & Tann Asia’s Shipping & International Trade Practice, a publication that provides a snapshot of the key legal issues in various jurisdictions where our member firms have regional presence.

In this issue, we provide an overview of the procedures for arresting a vessel in Vietnam. We also report the measures that Singapore has recently introduced to ensure safe and responsible practices in the maritime and shipping sector amidst the COVID-19 pandemic.

OMNIBUS LAW 2020: Just in Time, Indonesia's Priority Investment List is Set to Boost Economic Growth

To implement the relevant provisions of the Omnibus Law (Law No. 11 of 2020) with respect to foreign investment, the government has introduced a new investment list to replace the Negative Investment List under Presidential Regulation No. 44 of 2016 and Presidential Regulation No. 76 of 2007. The new investment list, called the Priority Investment List, is issued under Presidential Regulation No. 10 of 2021 on Investment Business Activities.

The Priority Investment List is a crucial piece of the Omnibus Law puzzle that could increase foreign investment and boost economic growth in the country. Under the Priority Investment List the permitted and restricted sectors have been simplified.

OMNIBUS LAW 2020: Just in Time, Indonesia's Priority Investment List is Set to Boost Economic Growth

To implement the relevant provisions of the Omnibus Law (Law No. 11 of 2020) with respect to foreign investment, the government has introduced a new investment list to replace the Negative Investment List under Presidential Regulation No. 44 of 2016 and Presidential Regulation No. 76 of 2007. The new investment list, called the Priority Investment List, is issued under Presidential Regulation No. 10 of 2021 on Investment Business Activities.

The Priority Investment List is a crucial piece of the Omnibus Law puzzle that could increase foreign investment and boost economic growth in the country. Under the Priority Investment List the permitted and restricted sectors have been simplified.

OMNIBUS LAW 2020: Just in Time, Indonesia's Priority Investment List is Set to Boost Economic Growth

To implement the relevant provisions of the Omnibus Law (Law No. 11 of 2020) with respect to foreign investment, the government has introduced a new investment list to replace the Negative Investment List under Presidential Regulation No. 44 of 2016 and Presidential Regulation No. 76 of 2007. The new investment list, called the Priority Investment List, is issued under Presidential Regulation No. 10 of 2021 on Investment Business Activities.

The Priority Investment List is a crucial piece of the Omnibus Law puzzle that could increase foreign investment and boost economic growth in the country. Under the Priority Investment List the permitted and restricted sectors have been simplified.

The Malaysiakini Case: Liability of Online Intermediary Platforms as the Presumed Publisher for Third-Party Content – A Further Analysis

Last month, the Federal Court in the case of Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Another (Case No. 08(L)-4-06/2020) found Mkini Dot Com Sdn Bhd, the owner and operator of the Malaysian online news portal ‘Malaysiakini’ ("Malaysiakini"), guilty of contempt of court in relation to third-party comments that were posted on Malaysiakini’s website. In our previous Update issued last month, we provided an interim analysis on the Federal Court’s summary grounds of decision for both the majority and minority decisions. Essentially, the majority decision found Malaysiakini liable based on section 114A of the Evidence Act 1950 ("EA 1950") which raises the legal presumption that Malaysiakini, as the news portal owner, was the publisher of the said comments.

The recent issuance of the full grounds of judgment for both the majority and minority decisions has provided a clearer picture of the reasoning adopted by the Federal Court in arriving at its decision. Based on the full grounds of both judgments, this Update seeks to provide a further analysis on the Federal Court’s finding in relation to the liability of online intermediary platforms as the presumed publisher under section 114A of the EA 1950 and examine its potential impact on content regulation in Malaysia

OMNIBUS LAW 2020: A New Age in Employment: Part 1

As discussed in AHP’s October 2020 Client Update, the Omnibus Law (Law No. 11 of 2020) gave the employment sector a significant overhaul. But the large-scale change also created gaps. Now, the Indonesian Government seeks to fill in these gaps by enacting the following four regulations: 

(i)        Government Regulation No. 35 of 2021 on Fixed-Term Employment Agreement, Outsourcing, Working Hours and Time-off, and Termination of Employment ("Regulation 35");

(ii)      Government Regulation No. 34 of 2021 on Manpower Utilisation;

(iii)     Government Regulation No. 36 of 2021 on Wages; and

(iv)     Government Regulation No. 37 of 2021 on the Administration of Loss of Employment Security Program. 

This Update focuses on Regulation 35, which addresses areas of the Labour Law (Law No. 13 of 2003) that required further clarification after the Omnibus Law's issuance: fixed-term employment agreement, termination of employment, termination payment, and outsourcing.

OMNIBUS LAW 2020: A New Age in Employment: Part 1

As discussed in AHP’s October 2020 Client Update, the Omnibus Law (Law No. 11 of 2020) gave the employment sector a significant overhaul. But the large-scale change also created gaps. Now, the Indonesian Government seeks to fill in these gaps by enacting the following four regulations: 

(i)        Government Regulation No. 35 of 2021 on Fixed-Term Employment Agreement, Outsourcing, Working Hours and Time-off, and Termination of Employment ("Regulation 35");

(ii)      Government Regulation No. 34 of 2021 on Manpower Utilisation;

(iii)     Government Regulation No. 36 of 2021 on Wages; and

(iv)     Government Regulation No. 37 of 2021 on the Administration of Loss of Employment Security Program. 

This Update focuses on Regulation 35, which addresses areas of the Labour Law (Law No. 13 of 2003) that required further clarification after the Omnibus Law's issuance: fixed-term employment agreement, termination of employment, termination payment, and outsourcing.

OMNIBUS LAW 2020: A New Age in Employment: Part 1

As discussed in AHP’s October 2020 Client Update, the Omnibus Law (Law No. 11 of 2020) gave the employment sector a significant overhaul. But the large-scale change also created gaps. Now, the Indonesian Government seeks to fill in these gaps by enacting the following four regulations: 

(i)        Government Regulation No. 35 of 2021 on Fixed-Term Employment Agreement, Outsourcing, Working Hours and Time-off, and Termination of Employment ("Regulation 35");

(ii)      Government Regulation No. 34 of 2021 on Manpower Utilisation;

(iii)     Government Regulation No. 36 of 2021 on Wages; and

(iv)     Government Regulation No. 37 of 2021 on the Administration of Loss of Employment Security Program. 

This Update focuses on Regulation 35, which addresses areas of the Labour Law (Law No. 13 of 2003) that required further clarification after the Omnibus Law's issuance: fixed-term employment agreement, termination of employment, termination payment, and outsourcing.

OMNIBUS LAW 2020: Shift to Risk-Based Licensing Set to Transform Indonesia's Investment Climate

Following the enactment of the Omnibus Law, the government has introduced the necessary implementing regulations to the law. Of the proposed changes under the Omnibus Law, one, in particular, will affect all businesses, namely the shift from a commitment-based licensing regime to a risk-based licensing regime. The new regime is reflected under Government Regulation No. 5 of 2021 on the Implementation of Risk-Based Business Licenses (“Regulation”). The Regulation is aimed at administering a more streamlined and efficient business licensing process, and in some instances, even removing the licensing requirement for certain businesses.

Malaysia’s Large Scale Solar 4/LSS@MEnTARI: Analysis of Results

The Energy Commission of Malaysia has, on 12 March 2021, announced the list of shortlisted bidders (i.e. winners) of its fourth competitive bidding programme for development of large scale solar power plants (dubbed the LSS@MEnTARI and generally referred to by the industry as LSS4). The LSS4 was launched in May 2020 in the midst of the COVID-19 pandemic with a stated aim of stimulating the recovery of the economy. It was largely seen as an opportunity for those who were unsuccessful in LSS3 to repurpose their submission packages, and also as a move to placate grouses from local players that the outcome of the LSS3 programme did not result in enough jobs for local contractors and that the LSS3 programme was not favourable to local players.

The LSS4 was not without its own set of issues. For instance, there was confusion as to whether foreign participation would be allowed as the Energy Commission had issued conflicting views on this. Further, eyebrows were also raised when the LSS4 results were not released by the end of 2020 as results are traditionally announced at the end of the year in which the bidding round is held to allow shortlisted bidders sufficient time achieve Energy Commission-prescribed project milestones.

This article breaks down and analyses the results of the LSS4.

Whistleblower Protection Act 2010: Sustainable a Decade on?

Environmental, Social & Governance (“ESG”) is increasingly gaining traction as the buzzword in 2021 and more stakeholders are sitting up and taking notice when corporate governance matters are discussed. Stakeholders understand that good corporate governance has a real impact on the sustainability and long-term prospects of businesses, and are receptive to methods of improving corporate governance.

To this end, a good whistleblowing policy is no longer just “nice to have”, but is an integral part of a business’ long-term strategy. This article seeks to shed light on the efficacy of the Whistleblower Protection Act 2010 in Malaysia in improving corporate governance.

A New Year, A New Registration Regime for Private Electronic System Operators

2019 was a pivotal year in Indonesia's digital business landscape as the government issued, among others, Government Regulation No. 71 of 2019 on Electronic Systems and Transactions (“2019 Regulation”).  The 2019 Regulation mandates all electronic system operators to register with the Ministry of Communications and Informatics ("Ministry"). 

The 2019 Regulation only contains the broad principles on the registration obligation, but mandates that this obligation be further regulated in a Ministerial-level regulation. As a follow-up to such mandate, towards the end of 2020, the Ministry issued a new regulation, Minister of Communications and Informatics Regulation No. 5 of 2020 on the Operation of Private Electronic System Operators (“New Regulation”),  to provide more details on the registration obligation, specifically for private electronic system operators.

New Decree guiding the Labour Code 2019

On 14 December 2020, the Government issued Decree No. 145/2020/ND-CP which elaborates the implementation of the current Labour Code 2019 (“Labour Code”) on working conditions and labour relations (“Decree 145”). Decree 145 came into effect from 01 February 2021 . Notable changes introduced in Decree 145 include the following: 

• Prevention of sexual harassment at the workplace;
• Organisation of dialogue at the workplace & employee representation;
• Notice period for unilateral termination of employment contracts; and
• Overtime.

Keeping Time in Maritime Claims: Limitation Periods and the Single Liability Principle

Key Aspects of Cambodia's New Sub-Decree on National Internet Gateway

On 16 February 2021, the Royal Government of Cambodia issued Sub-Decree No. 23 on the Establishment of National Internet Gateway ("Sub-Decree"). The Sub-Decree aims to facilitate and manage internet connections for the enhancement of effective and efficient national revenue collection, protection of national security, and assurance of social order, culture, and tradition.

This Update highlights the significant aspects of the Sub-Decree.

Rajah & Tann Singapore Sustainability Update: In Conversation with Seth Tan, Infrastructure Asia, on ESG in Infrastructure Projects