The Malaysian legal system is based on the English common law system in which sources of law consist of legislation and case law precedents. Many Malaysian statutes draw upon equivalent legislation from common law counterparts, and English law continues to be strongly persuasive in cases argued in Malaysian courts.

There are five layers to the Malaysian civil court structure, namely the magistrates’ courts, sessions courts, high courts, the Court of Appeal and the Federal Court. Where civil claims are filed depends upon the subject matter and quantum of the claim. The magistrates’ courts and sessions courts are categorised as “subordinate courts‟, while the high courts, Court of Appeal and Federal Court are categorised as “superior courts‟.

The high courts have two separate co-ordinate jurisdictions, with the High Court of Malaya having jurisdiction to hear cases in Peninsular Malaysia and the High Court of Sabah and Sarawak having jurisdiction to hear cases in Sabah, Sarawak and the Federal Territory of Labuan.

Decisions of cases filed at the high courts in the first instance may be appealed to the Court of Appeal, and the decision of the Court of Appeal may be appealed to the Federal Court (subject to the Federal Court granting leave to appeal). The Federal Court is the final court of appeal for matters originating from the High Court.

The High Court has original jurisdiction to hear disputes where the amount claimed, or the value of the subject matter in dispute is greater than that which the subordinate courts have jurisdiction to hear. The thresholds are as follows:

• first class magistrates’ courts – up to MYR100,000;
• sessions courts – up to MYR1,000,000 (except for civil suits in relation to motor vehicle accidents, landlord and tenant, and distress, over which a sessions court has unlimited jurisdiction); and
• high courts – above MYR1,000,000.

In Malaysia, there is no blanket legislation specifically regulating foreign investment. Restrictions vary on an industry-by-industry basis. Whether approval is required, therefore, depends on the nature of the particular investment.

Background

The Malaysian government previously administered national policies aimed generally at securing the involvement of the Bumiputeras (ie, the indigenous population of Malaysia) in the economic life of the nation. A Malaysian body known as the Foreign Investment Committee (FIC) implemented guidelines limiting, among other things, foreign participation in acquisitions of equity interests, mergers and takeovers (the FIC Guidelines). However, as part of the Malaysian government's efforts to liberalise foreign investments in Malaysia, the FIC was abolished, and the FIC Guidelines were repealed in June 2009. Nevertheless, various government ministries and agencies continue to restrict foreign acquisitions of equity interests in Malaysian companies in certain sectors pursuant to statutes, regulations or guidelines. In such industries, foreign investment is subject to the approval of the particular sectoral regulator.

Examples

For example, under the Distributive Trade Guidelines 2020 (DTG), proposals for foreign involvement in distributive trade in Malaysia require approval from the Ministry of Domestic Trade and Consumer Affairs. The foreign equity restrictions vary according to the distributive format (eg, a minimum of 30% Bumiputera ownership for hypermarkets and no foreign involvement allowed for mini markets and fuel stations). Similarly, the Malaysian Communications and Multimedia Commission restricts foreign equity participation in the telecommunications sector (permitted foreign equity ownership ranges from 30% to 100%, depending on the type of licence required).

Need for Clarification

However, as regulations and policies on foreign equity investments are subject to policy changes, foreign investment restrictions do change from time to time and, in certain cases, require clarification.

Obtaining approval for foreign investment is generally a matter of consulting with and submitting an application to the relevant regulator. The consequences of investing without approval differ depending on what has been contravened and may result in administrative or legal sanctions.

Enforcement of Local Equity Participation

Local equity participation requirements are applied on a sectoral basis, depending on the activities carried out by the company. These requirements are enforced in a myriad of ways. Some are enforced through powers conferred under legislation or guidelines issued pursuant to legislation, and others through terms and conditions set out in licences and permits required for businesses to operate. For example, under the Industrial Co-ordination Act 1975, the Ministry of International Trade and Industry acts as the licensing authority for the manufacturing industry and has historically imposed, amongst others, minimum equity conditions and/or notification requirements for changes in shareholding and/or board composition as part of the conditions of manufacturing licences. Failure to comply with these conditions may lead to fines and/or revocation of licences, permits or approvals.

Sourcing Requirements

Due to sectoral regulation, the commitments required by the authorities depend on the particular foreign investment. While there is no overarching legal requirement, the authorities may condition their regulatory approvals or licences on local sourcing requirements. For instance, under the DTG, a foreign equity-held trade company is expected to, among other things, implement hiring policies to reflect Malaysia′s racial composition, formulate clear policies and plans to assist Bumiputera participation in the distributive trade sector, increase the utilisation of local airports and ports in the export and import of goods, and utilise local companies for legal and other professional services.

Equity Requirements

Foreign investment is also commonly regulated by the imposition of Bumiputera or Malaysian equity requirements or local vendor or sourcing requirements. For example, to obtain a Petronas licence to carry out upstream oil activities, applicants must comply with certain equity participation requirements depending on the category of upstream activity. It is common for upstream activities to fall under a category that imposes either a 30% or a 51% Bumiputera equity shareholding requirement (depending on the mode of operation, eg, self-operator, manufacturer, dealer, agent, etc), in addition to requirements such as the obligation to maintain a corresponding percentage of Bumiputera directors, management and employees.

Capital Requirements

In certain sectors, approval may also be conditional on minimum paid-up capital requirements. The required level of capital commitment is typically higher where there is foreign involvement. For example, a foreign-owned urban inbound travel agency and tour operator business is expected to commit MYR1.5 million in share capital, compared to up to MYR200,000 for a locally owned counterpart.

Investors may have a right to appeal if the specific legislation provides for appeals to higher administrative authorities or statutory tribunals against administrative decisions (such as the refusal to authorise an investment). Timing will depend on the provisions of the relevant legislation. For example, under the Town and Country Planning Act 1976, an appeal against the decision of a local planning authority must be brought within one month from the date of communication of the relevant decision.

Judicial Review

Apart from this, courts in Malaysia may judicially review the authorities′ exercise of powers (where they are statutory and affect legally recognised interests, or where the powers are non-statutory but justiciable in nature). Where an investor brings a judicial review challenge in court, the courts will only consider whether the decision to refuse authorisation was legal (ie, whether in doing so the authority exceeded its powers, committed an error of law, breached the rules of natural justice, made a decision that no reasonable tribunal could have reached, or abused its powers).

An application for judicial review must be made promptly, within three months from the date the grounds for the application first arose or when the decision was first communicated to the applicant. The court has the discretion to extend this timeframe only where there is a good reason for doing so.

In Malaysia, a business may be carried on through one of several corporate vehicles, the most common of which are:

• locally incorporated companies;
• branches of foreign companies;
• representatives/regional offices; and
• limited liability partnerships.

Locally Incorporated Companies

Locally incorporated companies are regulated under the Companies Act 2016 (CA). A locally incorporated company has a separate legal personality, and the liabilities of the shareholders are limited by the amounts invested for shares of the company or by guarantee. A locally incorporated private limited company must have at least one shareholder, and there is a minimum capital requirement of one ordinary share. The company must also have at least one director who is resident in Malaysia. There is no blanket prohibition against the establishment of a wholly foreign-owned company as long as there are no foreign equity restrictions in respect of the particular business carried on by the company.

Branches of Foreign Companies

Alternatively, a foreign company wishing to carry on business in Malaysia may register a branch under the CA. Registering a branch may be an appropriate form of operation for a foreign company that foresees that its operations in Malaysia will likely be short to medium-term. A branch does not have a separate legal personality, so its liabilities are those of its parent company. It must appoint an agent in Malaysia who is answerable for all acts, matters and things required to be done by the branch under the CA and is personally liable for all penalties imposed unless the agent can satisfy the court that they should not be so liable.

Representative/Regional Offices

A foreign company, especially one in the manufacturing or services sector, may establish a representative/regional office in Malaysia. Representative/regional offices are not regulated under the CA but generally require the approval of the Malaysian Investment Development Authority (MIDA). Approval for a representative/regional office is usually given for an initial period of two years. Under the guidelines issued by MIDA, a representative/regional office is not allowed to engage in any form of commercial activity, lease warehousing facilities, sign business contracts for a fee or participate in the daily management of any entity within its corporate group in Malaysia. Permissible activities for a representative/regional office include planning or co-ordinating business activities, undertaking research and product development and other activities that will not result directly in actual commercial transactions.

Limited Liability Partnerships (LLPs)

An LLP is an alternative business vehicle regulated under the Limited Liability Partnership Act 2012. Unlike a traditional partnership, an LLP has a separate legal personality, and the liabilities of the partners are limited in respect of claims against the LLP and the wrongful acts of other partners of the LLP. An LLP must be formed by no fewer than two persons, who may be individuals or bodies corporate. There are generally no limitations as to whether the partners of an LLP must be of local or foreign origin. However, an LLP must appoint at least one compliance officer, who must be a citizen or permanent resident of Malaysia and ordinarily reside in Malaysia.

In practice, foreign companies typically carry on business in Malaysia through a locally incorporated company. Many businesses have licensing or approval requirements (eg, distributive trade), which means that it is necessary to have a locally incorporated company to carry on that business. Where such requirements do not exist, a branch or LLP may be suitable, particularly for start-ups and SMEs, as these alternative business vehicles are not subject to the higher compliance requirements of locally incorporated companies and are thus easier to administer.

An application must first be submitted to the Companies Commission of Malaysia (CCM) to confirm the availability of the company name. Once the company name is approved, an application must then be submitted to the CCM to incorporate the company. All documents for incorporation must be lodged with the CCM within 30 days of approval of the company name, including details of the registered address, directors and shareholders. Once the CCM is satisfied that the requirements for incorporation have been met, the CCM will issue a notice of approval and registration, which is conclusive evidence of the incorporation of the company.

The entire incorporation process can take approximately ten working days or less if all the required documents are in order.

Companies incorporated in Malaysia must comply with the reporting requirements imposed by the CA, which include:

• circulating audited financial statements and reports for each financial year to relevant persons, including the shareholders, within six months of the financial year end in the case of a private company or 21 days before the annual general meeting in the case of a public company;
• lodging audited financial statements and reports with the CCM within 30 days of the circulation of the same to the shareholders in the case of a private company or 30 days from the annual general meeting in the case of a public company;
• lodging an annual return with the CCM within 30 days of the anniversary of the incorporation of the company;
• notifying the CCM of any amendments to the constitution of the company and lodging a copy of the amended constitution within 30 days of the special resolution to amend the constitution;
• lodging the required statutory forms and documents with the CCM (eg, a notice of increase in share capital, change in directors, change in shareholding and change in the interest of a substantial shareholder);
• keeping accounting and other records to explain the transactions and financial position of the company sufficiently; and
• keeping minutes of all meetings and resolutions of the shareholders and the board of directors.

From 1 March 2020 until the enforcement date of the Companies (Amendment) Bill 2020 (Transitional Period), all companies, except for:

• public listed companies;
• companies whose shares are deposited in the central depository; and
• certain other exempted companies are required to identify, obtain and keep accurate and up-to-date information on their beneficial ownership.

After the Transitional Period, companies must lodge their beneficial ownership information with the CCM within 14 days of the expiry of the Transitional Period or such further extended timeframe as the CCM may determine.

In respect of public companies, substantial shareholders (ie, persons holding an interest of not less than 5% of the voting shares of the company) are required to notify the company and the CCM of their interest and any changes to such interest.

Companies

Companies in Malaysia adopt a single-tier board system, and the business and affairs of the company are managed by the board of directors. The board of directors may delegate certain functions to committees under the board (eg, an audit committee or a nomination and remuneration committee). Typically, the company's management team is responsible for implementing the resolutions of the board of directors and for managing the day-to-day operations of the company.

LLPs

In LLPs, partners are responsible for managing the business. The rights and duties of the partners are governed by a limited liability partnership agreement entered into between the partners.

Directors′ Liability

A director of a company may be held liable if the company commits an offence. Under certain statutory provisions, a director at the time of the commission of an offence by the company may be deemed to be liable. For example, the Employees Provident Fund Act 1991 provides that if a company fails to pay the required contribution for the retirement benefits of its employees, the directors can be held jointly liable for the outstanding contributions unless the director(s) can prove that the offence was committed without their consent or connivance and they exercised all such diligence to prevent the commission of the offence.

In July 2020, the Securities Commission of Malaysia (SC) issued a set of guidelines (SC Guidelines) to regulate the conduct of directors of publicly listed corporations in Malaysia and their subsidiaries (irrespective of whether the subsidiary is incorporated in Malaysia). The SC Guidelines, among other things, reinforce the existing obligations in directors′ fiduciary duties under the CA and common law.

In addition to directors, the SC Guidelines also apply to non-directors who are primarily responsible for the operations or financial management of the company (eg, chief executive officer, chief financial officer, etc).

With the implementation of the SC Guidelines (which came into force on 30 July 2020), the SC is can now impose administrative sanctions against the directors and relevant senior management of publicly listed corporations and their subsidiaries for breach of directors′ duties prescribed under the SC Guidelines.

In April 2021, The SC Guidelines were revised to include guidance to listed corporations, their subsidiaries and directors to establish a group governance framework. Pursuant to the revised SC Guidelines, a group should have clear policies and processes to manage situations of conflict of interest and ensure the appropriate flow of information internally within the group.

Shareholders′ Liability

It is a well-established principle in Malaysian company law that a company has a separate legal personality. As such, the liabilities of the company are distinct from those of the shareholders, who would not be held liable for the company's actions. The Malaysian courts would only pierce the corporate veil and hold the shareholders liable in exceptional circumstances (eg, where the company is used as a vehicle to commit fraud or where the company is incorporated as a mere sham or facade).

The legal rules governing the employment relationship are principally derived from the following legislation (and, to a lesser extent, the common law) and apply to all employees, unless specified otherwise.

• The Employment Act 1955 (EA) governs and sets minimum standards on employment matters. It applies to eligible employees in Peninsular Malaysia, namely those with an income up to and including MYR2,000 a month; or those in certain categories of employment irrespective of salary (ie, manual labourers or their supervisors, persons who maintain or operate mechanically propelled vehicles, domestic servants, and persons in certain positions in seafaring vessels) (EA Employees). The equivalent pieces of legislation in East Malaysia are the Sabah and Sarawak Labour Ordinances, which apply to employees who earn below MYR2,500 a month (collectively with EA Employees and Protected Employees).
• The Industrial Relations Act 1967 (IRA) governs relations between employers and employees and the prevention and settlement of disputes.
• The Trade Unions Act 1959 regulates the registration, constitution, rights and liabilities of trade unions.
• The Employees Provident Fund Act 1991 (EPF) requires private sector employers and employees to contribute to a national statutory pension fund. The contribution is 9% for employees and 12% to 13% for employers, depending on the monthly salary of the Malaysian employee. From 1 January 2021 to 30 June 2022, and subject to further extension, the statutory contribution rate for employees (below 60 years old) has been lowered from 11% to 9%, which is a 2% increase from the 7% statutory contribution rate implemented by the EPF effective from 1 April 2020 to 31 December 2020, as part of the Economic Stimulus Package 2020 announced by the Malaysian government in response to the COVID-19 pandemic. Foreign employees and domestic servants are exempt but may contribute voluntarily.
• The Employees′ Social Security Act 1969 (SOCSO) provides social security protection for Malaysian employees.
• The National Wages Consultative Council Act 2011 (Minimum Wages Order 2022) prescribes the minimum wage of MYR1,200 per month or MYR5.77 per hour for City Council and Municipal Council areas, including Kuala Lumpur, and MYR1,100 per month or MYR5.29 per hour for other areas for employees employed by employers with less than five employees other than employers who carry out a professional activity classified under the Malaysia Standard Classification of Occupations (MASCO) as published by the Ministry of Human Resources, for all areas from 1 May 2022 until 31 December 2022. For employees employed by employers who employ five or more employees and employers who carry out a professional activity classified under MASCO, the minimum wage is increased to MYR1,500 per month or MYR7.21 per hour for all areas from 1 May 2022. From 1 January 2023, the increased new rate will apply to all employees.
• The Minimum Retirement Age Act 2012 specifies that the minimum retirement age is 60 years.
• The Employment Insurance System Act 2017 (EIS) requires employers and employees to make contributions to protect retrenched employees.

An employer cannot contract out of the obligations imposed by the EA, EPF, EIS and SOCSO.

EA Employees

In Malaysia, employment contracts may be written or verbal, and expressed or implied. The terms of employment of EA Employees are subject to mandatory statutory provisions under the EA. For example, EA Employees may qualify for prescribed statutory entitlements, including annual leave, termination notice and sick leave (to varying degrees, depending on the employees′ length of service). The entitlements and benefits of Non-EA Employees are governed principally by the terms of their employment contracts and the common law. However, they are equally entitled to maternity leave and sexual harassment protections under the EA.

Fixed-Term Employment

Malaysia recognises fixed-term employment contracts in so far as they are used for employees who perform project-based, short-term or seasonal work. Whether an employment contract is a fixed-term or indefinite contract is a matter of fact and degree, and Industrial Court decisions on unfair dismissals have indicated that in determining this issue, the court will assess factors such as the nature of the business, the employee′s responsibilities to the employer′s business requirements, and whether such contracts are routinely renewed.

Part-Time Employment

Part-time employment contracts are also recognised. A part-time employee is statutorily defined as a person whose average work hours are more than 30% but do not exceed 70% of the regular work hours of a full-time employee employed in a similar capacity in the same enterprise. Part-time employees also eligible under the EA enjoy similar, but reduced, statutory protection.

Protected Employees cannot work for more than 48 hours per week and eight hours per day, or over ten consecutive hours beginning from when the employee commences work for the day, including any rest breaks. They are also entitled to a 30-minute paid break after every five hours of consecutive work. Overtime hours are permissible, subject to a total of 12 hours per day and 104 overtime hours per month. Protected Employees are also entitled to overtime pay prescribed as a percentage of their rate of pay. In the case of Non-protected Employees, their working-hour entitlements are governed by the terms of their employment contracts.

Malaysia does not recognise “at will‟ employment. As such, unilateral changes to “fundamental‟ terms and conditions of employment, such as termination notice and annual leave (as opposed to policies to regulate the workplace, such as IT usage policy), cannot be implemented without constructive dismissal risks and therefore require express, voluntary consent from the employee. All dismissals must be for “just cause or excuse‟, and if a former employer′s decision is challenged in the Industrial Court, the former employer must show that there were proper grounds for dismissal (ie, redundancy, poor performance or misconduct) and that it has complied with the relevant procedures and requirements specific to the ground for termination.

Selection for Redundancy

The courts view retrenchment by way of redundancy as a last resort. The employer must first consider and, if appropriate, carry out alternatives such reducing overhead expenses and working hours. Thereafter, selection for redundancy must accord with the following established principles:

• employees who have attained their retirement age must be selected over other employees;
• casual workers and fixed-term employees must be selected over permanent employees;
• within the same job scope, foreign workers must be selected over local employees; and
• the employee with the least number of years’ service must be the first to be identified for selection (known as the “last in, first out‟ principle).

Termination Notice and Severance Payments

Subject to the specific ground of termination, Protected Employees who are dismissed are generally entitled to termination notice and fair severance payments, varying according to the employee′s length of service. For Non-Protected Employees, these are generally determined by the provisions of their employment contract. However, the prevailing market practice is to make an ex gratia payment of one month′s salary per year of employment. Although there is no Industrial Court-recognised quantum of severance, the non-payment of ex gratia severance by an employer who was in a financial position to pay this could contribute towards the unfairness of the dismissal.

Generally, employment contracts in Malaysia do not provide for employees to be represented, informed or consulted by management.

In the context of termination of employment, an employer can mitigate the risk of a successful unfair dismissal claim against it by:

• informing employees of the possibility of termination as soon as possible, which may extend to consultation with the affected employees; and
• involving trade unions as much as possible during the termination process.

Under the Income Tax Act 1967 (ITA), income tax is imposed on income accruing in or derived from Malaysia or received in Malaysia from outside Malaysia. Employment income is deemed to be derived from Malaysia for any period during which, among others:

• employment is exercised in Malaysia;
• the employee performs duties outside Malaysia that are incidental to the exercise of employment in Malaysia;
• a person is a director of a company, and that company is resident in Malaysia for the year of assessment; and
• employment is aboard a ship or aircraft used in a business operated by a person who is resident in Malaysia for the year of assessment.

In other words, the source of employment (ie, the location of the employer) is not by itself conclusive for determining the issue of derivation. Individual income tax rates for residents range from 0% to 30%, while non-residents (other than companies) are taxed at a flat rate of 30%.

Employers in Malaysia have statutory obligations to contribute to the Employees Provident Fund, the Social Security Organisation and the Employment Insurance System for applicable employees.

Residence of Companies

The test to determine the tax residence of a company is based on the “control and management‟ test. A company carrying on a business is resident in Malaysia for the year of assessment if, at any time during that year, the management and control of its business are exercised in Malaysia.

Corporate Income Tax

Malaysia adopts a territorial principle of taxation in that only income accruing in or derived from, or received in Malaysia from outside Malaysia is subject to income tax in Malaysia. The rate of income tax for resident and non-resident companies (except for SMEs; ie, companies with a paid-up capital in respect of ordinary shares of not more than MYR2.5 million and gross income not exceeding MYR50 million in a basis period of a year of assessment from all business sources) is 24%. SMEs are generally subject to income tax at a rate of 17% on the first MYR600,000 of chargeable income and 24% on the remaining chargeable income with effect from the year of assessment 2020. The chargeable income subject to tax comprises gross income, less permitted deductions. On 29 October 2021, it was announced in the Budget 2022 that income tax will be imposed on resident persons in Malaysia on income derived from foreign sources and received in Malaysia with effect from 1 January 2022. Subsequently, on 30 December 2021, the Malaysian Ministry of Finance announced that the foreign sourced income exemption will be given, by concession, for five (5) years from 1 January 2022 to 31 December 2026 on certain categories of FSI received by the following groups of Malaysian tax residents:

• all types of FSI for individuals (except those in a partnership business in Malaysia); and
• foreign sourced dividends received by companies or limited liability partnerships in Malaysia.

For the year of assessment 2022, there is also a new prosperity tax known as “Cukai Makmur”, a one-off tax imposed at the rate of 33% on the chargeable income of companies that exceeds RM100 million. The Malaysian Ministry of Finance has clarified that taxable foreign sourced income received by companies in the year of assessment 2022 will not be included in the calculation of the chargeable income of a company for the purposes of Cukai Makmur.

Sales and Service Tax

Effective from 1 September 2018, the goods and services tax regime was repealed and replaced with a new sales tax and service tax regime.

Sales tax is charged on taxable goods:

• manufactured in Malaysia by a registered manufacturer and sold, used or disposed of by them; or
• imported into Malaysia by any person, at a rate of 5%, 10% or a specified rate depending on the category of taxable goods.

Service tax is generally charged at 6% on taxable services, provided in Malaysia by a registered person in business and on imported taxable services. Taxable services include accommodation, food and beverages, and professional services. Credit card or charge card services are subject to different rates of tax (ie, MYR25 for principal and/or supplementary credit card or charge card).

Withholding Tax

Malaysia imposes a withholding tax on certain payments to non-residents, including, without limitation, royalties, technical fees, installation fees and rental of movable property. The rate of withholding tax is generally between 10% and 15% unless there is a double-taxation agreement between Malaysia and the country of the non-resident, in which case, the withholding tax rate may be reduced.

Taxes on Dividends

There is no further income tax on dividends received from a Malaysian company. The tax imposed on the company’s profits will be the final tax, and dividends distributed to its shareholders will not be subject to further tax. Foreign sourced income in the form of dividends received in Malaysia is exempted from Malaysian income tax from 1 January 2022 to 31 December 2026.

Real Property Gains Tax (RPGT)

RPGT is imposed on gains accruing on the disposal of any real property or shares in any real property company in Malaysia and applies to all persons whether or not that person is resident in Malaysia. The rate of RPGT for companies ranges from 10% to 30%, depending on the number of years since the date of acquisition of the real property, subject to certain exemptions.

The Malaysian government offers a wide range of tax incentives across various sectors to promote investment activity. Among the Malaysia's most significant tax incentives are Pioneer Status and the Investment Tax Allowance.

Pioneer Status and Investment Tax Allowance

Pioneer Status is an income tax exemption on 70% to 100% of statutory income for five to ten years. The Investment Tax Allowance is an allowance of 60% of qualifying capital expenditure for five years. Pioneer Status and the Investment Tax Allowance are mutually exclusive (ie, a company can only benefit from one of the incentives at a time).

Companies in the manufacturing, agricultural and tourism sector or any sector that comprises a promoted activity or produces a promoted product may be eligible for Pioneer Status or the Investment Tax Allowance if the qualifying conditions are met.

There are no tax consolidation provisions in Malaysia. However, the ITA provides group relief for locally incorporated resident companies. The group relief is limited to 70% of the current year’s unabsorbed tax losses to be set off against the income of another company in the group, subject to certain conditions. With effect from the 2019 year of assessment, losses can generally only be surrendered after 12 months from the commencement of operations of the surrendering company and only for three consecutive years of assessment.

Initial proposals to introduce thin capitalisation rules in Malaysia were abandoned, but the government has introduced the Income Tax (Restriction on Deductibility of Interest) Rules 2019 (ESR), effective from 1 July 2019. The purpose of this is to restrict the interest deduction from a person′s gross income for any financial assistance in a controlled transaction in respect of their business income for the basis period for a year of assessment (YA) (Restriction). The ESR is applicable where the total interest expense on any financial assistance in a controlled transaction (ie, where one party has control over the other or where both are under the control of the same third person) in the basis period for a YA exceeds MYR500,000. The deductible interest expense is not permitted to exceed 20% of the amount of tax-EBITDA of the person from each of its business sources for the basis period for a YA (subject to certain exemptions). Tax-EBITDA is derived from the total amount of adjusted income before the Restriction plus the total amount of allowable qualifying deductions plus the total interest expense incurred in relation to the gross income for any financial assistance in a controlled transaction. The ESR does not apply to certain parties, including, without limitation, individuals, a licensed bank, a Labuan bank, and a Labuan investment bank.

The ITA contains transfer pricing provisions that govern transactions between related companies, requiring them to be conducted at arm′s length. Failing this, the Inland Revenue Board (IRB) may disregard or make adjustments to such transactions or substitute the price in respect of the transaction to reflect an arm′s length price for the transaction. In this respect, the Finance Act 2020 has introduced a surcharge of up to 5% of the increase in taxpayer′s income or reduction of any deduction or loss (as the case may be) for such transfer pricing adjustments or price substitutions.

The Income Tax (Transfer Pricing) Rules 2012 (Transfer Pricing Rules) require preparing contemporaneous transfer pricing documentation for transactions between related companies. There is a penalty of a fine ranging from MYR20,000 to MYR100,000 and/or imprisonment for up to six months for the failure to furnish transfer pricing documentation at the IRB′s request.

There are also transfer pricing guidelines to provide taxpayers with further guidance on the administrative requirements in preparing transfer pricing documentation and the application of transfer pricing methodologies to related-party transactions.

Malaysia has also introduced country-by-country (CbC) reporting rules, which require relevant reporting entities to prepare and file a CbC report.

Reporting entities are defined under the CbC reporting rules as the ultimate parent entities of multinational corporations where:

• the total consolidated group revenue is at least MYR3 billion in the financial year preceding the reporting financial year; and
• any of the group′s constituent entities is incorporated, registered or established under Malaysian law and is resident in Malaysia or is a permanent establishment in Malaysia.

The general anti-avoidance rule in the ITA applies to any transaction that has the direct or indirect effect of:

• altering the incidence of tax that would otherwise have been payable;
• relieving any person of any liability that would have arisen to pay tax or to make a tax return;
• evading or avoiding any duty or liability imposed under the ITA; or
• hindering or preventing the operation of the ITA in any respect.

The IRB may disregard or vary such transactions and make adjustments to counteract the whole or any part of the effect of the transaction.

Malaysia Competition Commission (MyCC)

The Competition Act 2010 (MCA) is the principal statute governing competition law in Malaysia and it grants administrative and enforcement powers to the Malaysia Competition Commission (MyCC). The MCA currently does not provide merger control rules. However, sector-specific voluntary merger control regimes exist in civil aviation, communications and multimedia industries. In April 2022, MyCC released an online public consultation document on proposed amendments to the MCA. These amendments include, amongst others, the introduction of a merger control regime.

Under the proposed merger control regime, mergers or anticipated mergers which may result in a substantial lessening of competition (SLC) within any market for goods or services will be prohibited.

“Merger‟ includes the following scenarios:

• combination/amalgamation of two or more previously independent enterprises into one;
• acquisition of direct or indirect control of enterprises. “Control‟ is deemed to be acquired if there is a possibility of exercising decisive influence on the enterprise because of rights, contracts and/or any other means;
• acquisition of assets such that the acquirer replaces or substantially replaces the asset vendor in the business (or part of the business); or
• creation of a joint venture to perform functions of an independent enterprise on a lasting basis.

MyCC proposes a hybrid notification regime consisting of mandatory and voluntary notifications. Any anticipated merger which exceeds the threshold prescribed by MyCC will trigger a mandatory notification requirement. The notification should be made to MyCC prior to completion. If the thresholds are met, failure to notify the MyCC or completing the merger before obtaining clearance from MyCC or before the expiry of the 120 working day review period (see 6.2 Merger Control Procedures) will render the merger void and may result in a financial penalty of up to 10% of the value of the merger transaction or anticipated merger transaction. MyCC has not yet prescribed the notification threshold.

For mergers or anticipated mergers that do not exceed the threshold, enterprises may file a voluntary notification to MyCC.

Certain merger transactions are excluded from the application of the proposed merger control regime, including:

• mergers between enterprises which are licensed, approved or registered by Bank Negara Malaysia, Securities Commission, Labuan Financial Services Authority or Suruhanjaya Perkhidmatan Air under the following statutes: Financial Services Act 2013, Islamic Financial Services Act 2013, or Money Services Business Act 2011, Capital Market and Services Act 2007 or Securities Industries (Central Depository) Act 1991, Development Financial Institution Act 2002; Labuan Financial Services and Securities Act 2010 or Labuan Islamic Financial Services and Securities Act 2010, or Water Services and Industry Act 2006;
• mergers involving any commercial or economic activities regulated by the following statutes: Communications and Multimedia Act 1998; Postal Services Act 2012, Malaysian Aviation Commission Act 2015, Petroleum Development Act 1974 (for upstream activities), Energy Commission Act 2001, or Gas Supply Act 1993;
• mergers engaged (to the extent to which it is engaged) to comply with a legislative requirement; and
• mergers carried out by an enterprise entrusted by the Federal or State government with the operation of services of general economic interest or having a revenue-producing monopoly, whose performance of the task assigned may be obstructed by the Proposed Regime.

These amendments are expected to be tabled in parliament by October 2022. If passed, MyCC expects the merger control regime to come into force within one year (or earlier), approximately by October 2023.

Malaysian Aviation Commission (MAVCOM)

Mergers in the civil aviation industry fall under the purview of the Malaysian Aviation Commission (MAVCOM), established under the Malaysian Aviation Commission Act 2015 (MACA). MACA prohibits any merger that will substantially reduce competition in any aviation service market. Parties may voluntarily notify MAVCOM of the merger or proposed merger to determine if the merger in question will infringe the prohibition under MACA.

Malaysia Communications and Multimedia Commission (MCMC)

Mergers and acquisitions in the communications and multimedia industry by licensees under the Communications and Multimedia Act 1998 (CMA) are regulated by the Malaysia Communications and Multimedia Commission (MCMC). The CMA prohibits transactions that have the purpose or will have the effect of substantially lessening competition in a communications market. Furthermore, the Guidelines on Mergers and Acquisitions issued by the MCMC on 17 May 2019 introduced a voluntary notification and assessment regime for transactions in the communications and multimedia market in Malaysia.

As the MCA does not currently contain general merger control provisions, there are no merger control procedures for general application in Malaysia.

Under the proposed merger control regime by MyCC, for mandatory notifications, if 120 working days have passed without any decision from MyCC (subject to certain instances allowing this timeline to be frozen, including where MyCC requests further information from the merging parties, an oral representation is made, and a commitment is being offered by the merging parties), the anticipated merger will automatically be deemed approved, and parties may proceed to complete the merger. If MyCC finds no substantial lessening of competition effect resulting from the anticipated merger, MyCC may clear the merger in the first 40 working days (ie, Phase 1 Review). If MyCC needs to conduct a more in-depth investigation, it will proceed to Phase 2 Review for the next 80 working days, at the end of which, MyCC may issue a decision to either:

• block the merger or anticipated merger;
• clear the merger or anticipated merger unconditionally; or
• clear the merger or anticipated merger based on commitments successfully offered by the enterprise.

This 120 working days review period above does not apply to voluntary notifications.

Civil Aviation Industry

Merger parties are expected to conduct a self-assessment to determine whether any notification and application to MAVCOM are appropriate. As the notification regime is voluntary, the transaction can be closed before the notification is made to MAVCOM or before receiving MAVCOM′s approval in respect of the application. The earliest time that a merger party may make such an application to MAVCOM is:

• for an anticipated merger – when the parties have a bona fide intention to proceed with the merger; details of the merger are available, and it will be or has been made public; or
• for a completed merger – at any time after the merger has been completed.

The time taken by MAVCOM to assess an application will vary depending on the complexity of the issues and the completeness of the information provided in the application.

Communications and Multimedia Industry

The voluntary notification and assessment process can be prior to or after completion of the M&A. Parties are required to conduct a self-assessment against thresholds established by the MCMC. If the parties opt to complete the transaction without obtaining the MCMC′s view, they must bear the risk of an objection by the MCMC and enforcement actions under the CMA. The MCMC may require that a proposed M&A is halted and not completed. Where the M&A has been completed, the MCMC may issue directions to prevent further integration between the M&A parties or prevent the merged or acquired entity from trading.

The MCMC’s assessment will be conducted through a two-phase process. Both phases involve the assessment of whether the M&A has the purpose or has or may have the effect of substantially lessening competition in a communications market. However, they are distinguished by the extent of the information sought from the parties and the nature of the assessment undertaken by the MCMC.

The MCA prohibits agreements between enterprises with the object or effect of significantly preventing, restricting or distorting competition in Malaysia (Chapter One Prohibition). This includes horizontal agreements (ie, between competitors) and vertical agreements (ie, between enterprises operating at different levels of the supply chain).

Generally, anti-competitive agreements will not be considered “significant‟ if the parties to the agreement:

• are competitors in the same market and their combined market share of the relevant market does not exceed 20%; or
• are not competitors, and each party holds less than a 25% share in the relevant market.

Under the MCA, certain horizontal agreements are deemed to have an anti-competitive effect on the market, and there will be no further assessment of their anti-competitive effects. These include agreements that have the object of:

• fixing the purchase or sale prices or other trading conditions;
• sharing markets or sources of supply;
• limiting or controlling production, market outlets, market access, technical or technological development, or investment; and
• bid rigging.

While no equivalent provisions exist for vertical agreements, MyCC has indicated that it will deem minimum resale price maintenance and other forms of resale price maintenance (including maximum pricing or recommended retail pricing) anti-competitive. MyCC has also indicated that it will focus its efforts on taking firm action against, bid rigging (particularly in the public procurement space).

Under the MCA, an enterprise may be relieved from liability for the Chapter One Prohibition if it is able to rely on the statutory defence that there are significant identifiable technological, efficiency or social benefits directly arising from the agreement; the benefits could not reasonably have been provided by the parties without the agreement having the said anti-competitive effect, the detrimental effects on competition are proportionate to the benefits provided, and the agreement does not allow the enterprise concerned to eliminate competition in respect of a substantial part of the goods and services.

Where the enterprise has infringed the MCA, MyCC may require the infringement to cease immediately, impose a penalty not exceeding 10% of global turnover over the period in which it occurred, or give other directions as it deems appropriate. MyCC also has the discretion to specify further steps or give other directions (collectively, Prohibition Sanctions).

The MCA also prohibits any conduct that amounts to abuse of a dominant position in any Malaysian market for goods and services (Chapter Two Prohibition).

The term “dominant position‟ refers to enterprises that possess such significant power in the market that they can adjust prices, outputs, or trading terms without effective constraint from competitors or potential competitors. MyCC′s guidelines on the Chapter Two Prohibition state that a market share of above 60% indicates dominance, although market share is not conclusive. The MCA contains a non-exhaustive list of factors indicating such abuse, which include predatory behaviour towards competitors; imposing an unfair purchase or selling price or other unfair trading conditions; limiting or controlling production, market outlets, market access, technical or technological development, or investment, to the detriment of consumers; and refusing to supply to a particular enterprise or group or category of enterprises.

However, an enterprise in a dominant position can take steps that have reasonable commercial justification or represent a reasonable commercial response to a competitor′s market entry or conduct.

Where the enterprise is deemed to have infringed the Chapter Two Prohibition, it may also be subject to the Prohibition Sanctions mentioned in 6.3 Cartels.

The granting of patents is governed by the Patents Act 1983 and Patents Regulations 1986. In order to obtain a patent, the invention must comply with the following requirements:

• it must be a worldwide novelty;
• it must involve an inventive step; and
• it must have an industrial application.

An application for a patent is filed with the Intellectual Property Corporation of Malaysia (MyIPO). A preliminary examination will be conducted to check for formalities compliance. If the formalities are in order, a clear formalities report is issued. The applicant must then request a substantive examination. If this examination is successful, the patent will be granted, and the registrar will issue the certificate and record the patent in the Register. Thereafter, patent details will be published in the Official Journal.

A patent is valid for 20 years from the filing date. The owner of a patent has the exclusive right to exploit the patented invention (eg, make, import, sell or use the product or process), assign or transmit the patent, conclude licence contracts and deal with the patent as the subject of a security interest. A patent is infringed by any person who exploits the invention without the patent owner′s consent. Relief can be obtained by way of damages and an injunction to prohibit the infringement. It is also a criminal offence for any person to falsely represent that anything disposed of by them for value is a patented product or process.

Trade marks do not need to be registered to be protected in Malaysia, as the tort of passing-off will provide some protection. However, registration confers significant advantages, such as ease of enforcement.

The registration of trade marks is governed by the Trademarks Act 2019 and Trademarks Regulations 2019. In order to be registrable, the sign must be represented graphically and must be capable of distinguishing the goods or services of one undertaking from those of other undertakings. The legislation recognises non-traditional marks such as colour, scent, sound, shape of goods or packaging, hologram, positioning, and sequence of motion as registrable signs and allows the registration of multiple classes of classification under a single application. Following Malaysia’s accession to the Madrid Protocol, a trade mark owner in Malaysia can now seek the protection of its trade marks in over 120 countries by filing one application with a single fee.

An application for registration of a trade mark is filed with MyIPO and then examined for registrability. If there are objections, the registrar will issue a letter, and the applicant may then make representations, amend the application or provide further evidence. If the registrar accepts the application for registration, the application will be published in the Intellectual Property Official Journal, and upon advertisement, there are two months for anyone to oppose the registration. If there is no opposition, the Registry will issue a sealed notification of the registration or a certificate of registration if requested.

A trade mark registration is valid for ten years and can be renewed for subsequent periods of ten years. A registered trade mark is infringed by a person who, without the consent of the registered trade mark proprietor, uses a sign that is identical to the registered trade mark on identical goods or services, or uses a sign that is identical or similar to the trade mark on similar goods or services resulting in the likelihood of confusion on the part of the public. Relief can be obtained through damages, an injunction to prohibit the infringement, and an account of profits or additional damages where the infringement involves the use of counterfeit marks.

Additionally, the owner of a registered trade mark may apply to the Registrar of Trademarks, objecting to the importation of certain goods that they suspect will infringe their trade mark in Malaysia.

Requirements for Registration

The registration of industrial designs is governed by the Industrial Designs Act 1996 and Industrial Designs Regulations 1999. In order to be registrable, a design must be new and have features, such as shape, configuration, pattern or ornament, that appeal to and are judged solely by the eye. A design must not include features determined by a method or principle of construction or such as shape or configuration dictated solely by the function that the article has to perform or dependent upon the appearance of another article intended by the creator/designer to form an integral part.

An application for registration must be filed with MyIPO accompanied by design drawings and a statement of novelty.

Infringements

A registered industrial design is initially valid for five years and can be renewed for a further four terms of five years each. It is an infringement if any person without the consent or licence of the owner applies the industrial design, or any fraudulent or obvious imitation of it, to any article for which the industrial design is registered, or imports such an article for which the industrial design is registered, into Malaysia for trade, or to sell or hire such an article. Relief can be obtained by damages or accounts of profits and an injunction to prohibit the infringement.

Copyright protection is governed by the Copyright Act 1987 (Copyright Act). While there is no requirement to register copyright in Malaysia, copyright owners may make a voluntary notification of copyright to MyIPO. Copyright in work arises automatically upon creation once the following criteria are fulfilled:

• the work is original;
• the work is recorded or reduced to material form;
• the work belongs to one of the six categories of protected works (ie, literary works, musical works, artistic works, sound recordings, films or broadcasts) or derivative works; and
• the work complies with the qualifications for copyright.

Term

The basic term of copyright is the life of the author plus 50 years. For published editions, sound recordings, photographs, films and broadcasts, the term of copyright is 50 years from the beginning of the year following the year in which the work was first published or broadcast. Performers have copyright protection to their live shows for 50 years from the beginning of the calendar year following the year in which the live performance was first given or recorded.

Infringement

Infringement of copyright is both a civil wrong and a criminal offence. The Copyright Act also protects the moral rights of the author of the copyrighted work. The author may sue for a breach of their moral rights to claim damages and the publication of corrections.

Extent of Copyright Protection

Copyright protection under the Copyright Act extends to computer programs (as “literary works‟). Databases may also be protected under the Copyright Act as literary works or derivative works.

The tort of breach of confidence may protect confidential information and trade secrets. The court will examine the type of information to determine whether it is of a confidential nature. The court will also examine whether the information was disclosed in circumstances that expressly or by implication imposed a duty of confidence on the recipient of the information.

The Personal Data Protection Act 2010 (PDPA)

The main legislation relating to data protection is the Personal Data Protection Act 2010 (PDPA), which came into force on 15 November 2013. The PDPA is a code of practice-based regime, according to which various codes regulating data protection in, for example, the aviation, banking and financial, insurance and takaful, and utilities sectors have been approved and registered. The PDPA regime is supplemented by the Personal Data Protection Regulations and other subsidiary legislation, such as the Personal Data Protection (Registration of Data User) Regulations 2013, which specify classes of data users who must register under the PDPA. Examples of these classes include banks, insurers and takaful operators, private healthcare facilities, private higher education institutions, schools and private educational institutions, licensed persons who carry on or operate a tourism training institution, tour operators, travel agents or licensed tourist guides.

Definition of “Personal Data‟

The PDPA applies to any person who processes, has control over or authorises the processing of any personal data in respect of commercial transactions. Information qualifies as “personal data‟ where it:

• relates to a data subject who is identified or identifiable from that information, or from that and other information in the possession of a data user; and
• is capable of being processed using equipment operating automatically in response to instructions given for that purpose or recorded as part of a manual filing system, where specific information relating to a particular individual is readily available.

“Sensitive Personal Data‟

The PDPA also recognises a separate category of “sensitive personal data‟, defined as any personal data consisting of information on a data subject's physical or mental health or condition, political opinions, religious beliefs or other beliefs of a similar nature; commission or alleged commission by the data subject of any offence; or any other personal data as the Minister of Communications and Multimedia may determine. Such data is more stringently regulated, and the PDPA generally prohibits any person from processing or using sensitive personal data unless the data subject has given explicit consent.

The Seven Data Protection Principles

The legal framework on data privacy is based on seven data protection principles, which also form the basis of the PDPA. In general terms:

• the General Principle prohibits the processing of personal data without the consent of the data subject;
• the Notice and Choice Principle requires the data subject to be provided with a written notice containing specific information relating to the data processing as soon as practicable;
• the Disclosure Principle prohibits the disclosure of personal data for a purpose other than the purpose for which the personal data was to be disclosed at the time of its collection or a directly related purpose;
• the Security Principle requires the data user to take practical steps to protect personal data from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction in the course of processing personal data;
• the Retention Principle requires the data user to take reasonable steps to ensure that personal data is destroyed or permanently deleted if no longer required for the purpose for which it was to be processed;
• the Data Integrity Principle requires the data user to take reasonable steps to ensure that the personal data processed is accurate, complete, not misleading and updated; and
• the Access Principle requires the data user to grant data subjects access to and the ability to correct their personal data where it is inaccurate, incomplete, misleading or outdated.

The PDPA applies only to personal data processed in Malaysia. It does not have any extraterritorial effect and does not apply to any personal data processed outside Malaysia unless intended to be further processed in Malaysia.

However, personal data may not be transferred to places outside Malaysia unless the Minister of Communications and Multimedia has specified such a place. However, there are prescribed exemptions to this restriction (collectively called “Prescribed Exemptions‟) and data users may transfer personal data to places outside Malaysia if, among other things:

• the data subject has provided consent to the transfer;
• the transfer is necessary for the performance of a contract between the data subject and the data user;
• the transfer is for the purpose of any legal proceedings or obtaining legal advice; or
• the transfer is necessary to protect the vital interests of the data subject.

The Department of Personal Data Protection (PDP Department) falls under the Ministry of Communications and Multimedia. The PDP Department is the responsible agency in respect of data protection and is tasked with enforcing and regulating the PDPA in Malaysia.

A commissioner is appointed under the PDPA and is tasked with wide statutory functions, including:

• advising on the national policy for personal data protection and related matters;
• implementing and enforcing personal data protection laws, including the formulation of operational policies and procedures;
• promoting and encouraging representatives of data users to prepare codes of practice and disseminate them to their members;
• co-operating with bodies corporate or government agencies to perform their functions;
• undertaking research into and monitoring developments in the processing of personal data to take account of the effects of data processing on the privacy of individuals′ personal data;
• monitoring and supervising compliance with the PDPA, and issuing circulars and enforcement notices as appropriate; and
• promoting awareness and dissemination of information to the public about the PDPA.

Proposed Amendments to the EA

On 10 May 2022, the Employment (Amendment) Act 2022 (Amendment Act) was gazetted. The amendments introduced are driven by Malaysia's commitments to comply with the international labour law standards and practices required under the Trans-Pacific Partnership Agreement, the Malaysia-United States Labour Consistency Plan and the International Labour Organisation Convention. As of the date of writing, the amendments have not come into force, and it is unclear when the amendments will come into effect.

The key amendments in the Amendment Act include the following:

• The reduction of maximum weekly working hours from 48 hours to 45 hours.
• The conferment on the Director General of Labour (Director General) of powers to inquire and decide on any dispute relating to discrimination in employment and make an order where necessary.
• An increase in entitlement to maternity leave from 60 days to 98 days and the granting to employees of a right to paternity leave of seven days.
• The restriction on termination of pregnant employees or employees suffering from illness arising out of pregnancy except on the grounds of misconduct, wilful breach of a condition of the employment contract, or closure of the employer's business.
• The requirement to exhibit a notice to raise awareness of sexual harassment in the workplace.
• The requirement to obtain prior approval from the Director General to hire foreign EA employees.
• The introduction of the right of employees to request flexible working arrangements, regardless of the terms of their contract of service. The proposals provide that an employer must consider the request, though an employer is not obliged to grant the request. However, if the employer refuses the request, the decision must be supported by reasons.

The Amendment Act does not expand the scope of the EA. However, the Ministry of Human Resources has proposed to expand the scope of the EA to cover all employees, irrespective of their salary or job scope. It is unclear what the proposal entails and when further details of such a proposal will be made available.