Starting up business in Malaysia 
to be much easier

CONDUCTING AND STARTING up businesses in Malaysia will be so much easier with the new Bill, to be designated as `Companies Act 2011', expected to be tabled in next year's Parliamentary seating.

This new Companies Bill, which will replace the existing 35-year old Companies Act 1965, is in line with the government's aspiration to ensure that the corporate law framework maintains its edge in attracting foreign and domestic investments, expanding entrepreneurship and also aims to ease and cheapen the cost of doing business in Malaysia, whilst giving strong emphasis on corporate governance.

The Companies Commission of Malaysia (CCM) has agreed to adopt a total of 183 out of 188 recommendations (97%) by the Corporate Law Reform Committee, which was submitted to CCM on Oct 20, 2008 to be included in the new Act.

Since then, the 19 policy statements* stated herein have been approved by the Cabinet, and will serve as a general parameter for the drafting of the next generation of Company Law for the country.

These policy statements revolve around eight core perspectives - namely, Simplicity, Corporate Governance, Cost Effectiveness, Technology-driven, One-Stop-Centre Corporate Information, Future Compatibility, Flexibility for CCM and Enforcement.

CCM has targeted to further reduce the number of days for setting up a business from three days to one. Hence, going e-centric will be a huge feature for the formation of companies.

Other significant features include having a flat and cheaper fee for public and private companies to be formed as well as including corporate social responsibility into the act.

The new Companies Bill will be divided into six chapters as follows:

• Chapter 1 - Preliminaries
• Chapter 2 - Formation of Companies
• Chapter 3 - Management of Companies
• Chapter 4 - Company Rescue Mechanisms
• Chapter 5 - Closing of Companies
• Chapter 6 - Miscellaneous

This new structure will greatly facilitate the stakeholders' understanding of the content, concept and requirements of the Companies Act.

CCM chief executive officer Datuk Azmi Ariffin said the new laws would be friendlier to small- and medium- scale enterprises (SMEs) by reducing costs and improving management efficiency as companies would no longer need to hold annual general assemblies.

He said increasing the number of SMEs was the goal, even though the move to reduce the cost of forming new companies would result in multi-million ringgit losses.

He added that 99.2 per cent of 900,000 companies registered with CCM comprised of SMEs and this amendment would change the nation's corporate landscape.

Datuk Azmi Ariffin also said the new Act would align with the national agendas crafted towards achieving Vision 2020, the Government Transformation Plan, the New Economic Model and the 10th Malaysia Plan.

CCM policies to be used in legislative changes*

• POLICY STATEMENT 1
  
  To introduce new company laws that are modern and dynamic through one act covering all companies without taking the ownership structures and economic capacities of said companies into account.
  
  
• POLICY STATEMENT 2
  
  Simplify business start-up through modernising laws and procedures related to incorporation by providing unlimited capacity, abolishing constructive notice doctrines except in certain cases, allowing incorporation by a member or stakeholder, easing approval processes for naming companies and making name reservation an option.
  
  
• POLICY STATEMENT 3
  
  Simplify business start-up through the introduction of the no par value regime.
  
  
• POLICY STATEMENT 4
  
  Simplify the restructuring of company share composition by introducing alternative procedures to reduce capital, the renewing of regulations related to buying back of shares, and financial assistance through solvency tests.
  
  
• POLICY STATEMENT 5
  
  Simplify the process of a company's internal decision making by abolishing the mandatory requirement to hold annual general assemblies, restructuring procedures of written resolutions used on private companies by abolishing the unanimity ruling in the approval of the said written resolutions, as well as improving and explaining rulings related to meeting procedures.
  
  
• POLICY STATEMENT 6
  
  Strengthen corporate administrative structures through the consolidation of the roles and responsibilities of a director.
  
  
• POLICY STATEMENT 7
  
  Consolidation of corporate administrative structures through acknowledgment of roles, functions and responsibilities of a company secretary and the need to raise the standard and professionalism of company secretaries.
  
  
• POLICY STATEMENT 8
  
  Introduction of mandatory registration regimes for company secretaries practising secretarial work.
  
  
• POLICY STATEMENT 9
  
  Applying and practising the elements of corporate responsibility in the new Companies Act.
  
  
• POLICY STATEMENT 10
  
  Strengthen corporate administrative structures by improving rights and protection of shareholders.
  
  
• POLICY STATEMENT 11
  
  Strengthen corporate administrative structures by refining the roles and responsibilities of auditors.
  
  
• POLICY STATEMENT 12
  
  Consolidate practices of corporate administrations by emphasising the importance of auditing the financial statement and the disclosure of information within the set time frame.
  
  
• POLICY STATEMENT 13
  
  Strengthen practices of corporate administrations by improving and explaining rulings related to the involvement of the director and significant shareholders
  
  
• POLICY STATEMENT 14
  
  Simplify, clarify and speed up the process of company winding down to shorten the duration taken to wind down a company, protecting company assets from liquidation by introducing and setting exempt dispositions, and clarifying undue preference transactions
  
  
• POLICY STATEMENT 15
  
  Modernise insolvency laws through the introduction of alternative mechanisms to save corporate companies that experience financial turmoil
  
  
• POLICY STATEMENT 16
  
  Restructure the scheme of arrangement concept between the company and its creditors
  
  
• POLICY STATEMENT 17
  
  Enforce the roles of receivers and managers in the receiving process of the company by explaining the receiver's power and status and introducing new allocations regarding liability, indemnification and prioritising receiver's limited costs.
  
  
• POLICY STATEMENT 18
  
  Refine pawn registration by improving existing procedures and processes.
  
  
• POLICY STATEMENT 19
  
  Modernise enforcement regimes by introducing civil and administrative proceeding concepts to selected provisions of the Companies Act, which can be enforced with criminal sentencing, to impose punishment on company officials who are involved in crime and not the company, and to consolidate regulations relating to the impeachment of directors.