Malaysia unfortunately suffered consecutive economic contractions due to the three COVID-19 lockdown measures that have been implemented since March 2020, with small and medium-sized enterprises (SMEs) and micro-enterprises being hit the hardest. Sectors such as travel, leisure, hospitality, tourism, airline and retail were severely impacted.
The Malaysian government encouraged private debt workout arrangements between businesses and financiers, along with implementing aid and economic stimulus packages. In July 2021, the central bank – Bank Negara Malaysia (BNM) – announced that SMEs and micro-enterprises can apply for a moratorium and repayment assistance for loan and financing repayment. Stamp duty exemptions were given on the restructuring and rescheduling of loan/financing agreements.
Notable applications and decisions on voluntary restructuring through schemes of arrangement and judicial management were reported in 2021, involving public listed corporations like AirAsia X Bhd, Scomi Group Bhd, Boustead Holdings Bhd and Top Builders Capital Bhd. Meanwhile, the Securities Commission Malaysia (SC) continued to grant extensions or flexibilities to give capital market intermediaries time to make certain regulatory filings and put regularisation plans in place amid the COVID-19 pandemic (see www.sc.com.my).
The Companies Act 2016 (CA 2016) is the principal legislation setting out the laws relating to insolvency, rescue mechanisms and liquidation for corporations in Malaysia. Judicial management applications and liquidations are regulated by the Companies (Corporate Rescue Mechanism) Rules 2018 and the Companies (Winding-Up) Rules 1972.
Businesses carried out through a sole proprietorship or partnerships of individuals are regulated under the Registration of Businesses Act 1956 and the Partnership Act 1961. The Insolvency Act 1967 (IA 1967) contains provisions relating to the insolvency and bankruptcy of individuals. Section 18 of IA 1967 allows creditors to consider composition in satisfaction of the debts due to creditors by a bankrupt, or for a scheme of arrangement of the bankrupt’s affairs. CA 2016 also provides for the winding-up of unregistered companies, including foreign companies and any partnership, association or company consisting of more than five members but not including companies incorporated under CA 2016 or under any corresponding previous written law.
The Limited Liability Partnerships Act 2012 (LLPA 2012) allows the formation of a limited liability partnership (LLP), which is a body corporate that has a separate legal personality from its partners. There is no corporate rescue mechanism available for an LLP; LLPA 2012 merely provides for winding-up and dissolution.
CA 2016 provides for three types of corporate restructuring involving varying degrees of judicial supervision:
JM and CVAs are not available to all companies.
The court cannot make a JM order in the following circumstances:
A CVA is not available to the following:
An insolvent company may be wound up voluntarily, which involves the company passing the requisite resolution for the company to be wound up. The liquidator is appointed based on nominations by creditors and members of the company.
The High Court has the power to compulsorily wind up an insolvent company. Upon the presentation of a winding-up petition, the High Court has the discretion to order the company to be wound up and appoint a liquidator to carry out the liquidation.
In Malaysia, receivership is usually brought about by appointment pursuant to private debentures given by the company as security. CA 2016 contains specific provisions regulating the powers of receivers and managers (R&Ms) and the interplay of the rights of receivers when a company goes into liquidation.
The court has power to appoint R&Ms under section 374 of CA 2016. Court-appointed receiverships are made when there is evidence of imminent danger of loss or dissipation of the company’s assets (see Dato' Sri Andrew Kam Tai Yeow v Tan Sri Dato' Kam Woon Wah & Ors  MLJU 1470).
There is no mandatory provision under which a company is obliged to commence formal insolvency proceedings. However, directors and officers of distressed companies are potentially liable for fraudulent trading and misfeasance proceedings, and potentially liable for damages and to make restitution under sections 540 and 541 of CA 2016. In relation to fraudulent trading, directors and officers could also be liable to imprisonment for a term not exceeding ten years, or to a fine not exceeding MYR1 million, or both.
Scheme of Arrangement
A creditor can apply to the court to convene a meeting to consider a compromise or arrangement for the company, which can be for all creditors or for a class of creditors. A liquidator, judicial manager or member of a company can also apply.
Restructuring pursuant to an SA is a two-tier process.
The court must approve the proposed compromise or arrangement on such alternations or conditions as it thinks fit.
A creditor can apply for JM.
A court can make a JM order and appoint a judicial manager if:
These items are known as the “Statutory Objectives” of JM.
The court also has the power to make a JM order and appoint a judicial manager if it considers doing so to be in the public interest.
Corporate Voluntary Arrangement
A creditor cannot apply for a CVA. The company, a judicial manager or a liquidator can apply. The applicant needs to submit the following in its application:
Insolvency is a requirement for a JM application. A court needs to be satisfied that the company is or will be unable to pay its debts. The phrase “inability to pay debts” is found in section 466 of CA 2016, which states that a company shall, among others, be deemed to be unable to pay its debts if:
Insolvency is not a requirement for applications for a CVA or SA.
The following specific legislation confers powers on regulators to intervene in regulated institutions.
The Financial Services Act 2013 (FSA) and the Islamic Financial Services Act 2013 (IFSA) regulate persons licensed to carry out:
BNM has power under the FSA and IFSA to:
The CMSA regulates activities, markets and intermediaries in the capital markets (ie, the securities and derivatives markets). When there is contravention of requirements under the CMSA, SC and Bursa Malaysia have powers to:
As noted earlier, JM and CVAs are not available to companies that are subject to the CMSA, such as financial and insurance institutions.
Consensual workouts and restructurings are not uncommon.
In fact, the Malaysian government has encouraged businesses to enter into workouts with their financial institutions. In July 2021, the government reintroduced a loan moratorium under the Pakej Perlindungan Rakyat dan Pemulihan Ekonomi (PEMULIH). Eligible borrowers do not need to make any repayment for six months, and no late payment charges or penalties will be imposed.
There is no specific legislation regulating consensual workouts in Malaysia. A freely negotiated debt restructuring agreement, supported by valuable consideration, is enforceable and binding on parties, but restructuring agreements that contravene the law will be void and unenforceable – for example, an agreement entered into by an insolvent company to prefer a certain creditor would be void under section 528 of CA 2016.
Consensual corporate workouts are ordinarily initiated by the company with the assistance of a restructuring adviser or an insolvency practitioner. A debt restructuring proposal is formulated and negotiated with the company’s creditors. Financiers would ordinarily expect a candid disclosure of the company’s financial position, justification for the restructuring and often reduced debt obligations and timelines for repayment, as well as the source and means of repayment. In some instances, financiers have insisted on the appointment of an independent financial adviser at the debtor’s expense to advise on the viability on the debt restructuring proposal.
Corporate Debt Restructuring Committee (CDRC)
BNM set up CDRC in 1998 as a pre-emptive measure by the Malaysian government to provide a platform for corporate borrowers and their creditors to work out feasible debt resolutions without having to resort to legal proceedings. A public listed company that has an aggregate indebtedness of MYR10 million and involves at least two financial institutions may apply to CDRC to mediate debt restructuring arrangements involving financial institutions.
Under the CDRC Code of Conduct (CDRC Code), after the debtor applies for a workout, CDRC will conduct a preliminary viability assessment, and within one month from the date of the application will notify the debtor and participating institutions of whether it will accept the application. Participating institutions are obliged to observe a standstill upon receiving notice that CDRC has accepted the debtor’s application.
Small Debt Resolution Scheme (SDRS)
BNM separately established SDRS to provide similar assistance to SMEs to restructure their financial commitments with financial institutions. This scheme is managed by Agensi Kaunseling dan Pengurusan Kredit (AKPK, or the Credit Counselling and Debt Management Agency), and commenced on 1 September 2020. A company must be Malaysian-owned (at least 51%) to be eligible for SDRS. The company must also qualify as a SME – ie, it has no more than 200 full-time employees, or its annual sales turnover is not more than MYR50 million.
New money is typically injected by white knights and shareholders. It is uncommon for them to be given super-priority liens or rights due to the pre-existing security rights accorded to financiers. Some financing and loan agreements may even contain debt subordination provisions to ensure the financier’s debts enjoy priority.
A debenture holder, being also a creditor, is entitled to bring an action for oppression or unfair prejudice under section 346 of CA 2016. This applies in cases where there is fraud on the minority, or where some commercial unfairness is being perpetrated by the majority shareholders or debenture holders on the minority shareholders or debenture holders.
Section 346 is not available to a sole debenture holder (see The Bank of Nova Scotia Bhd & Anor v Lion Dri Sdn Bhd & Ors  MLJU 1987); it is only applicable where a minority within a class has been oppressed by the majority of that class or where the powers of the directors are being exercised in a manner that is oppressive to the minority of said class.
Unless it has been specifically provided for or agreed upon by creditors, it is not possible to cram down an out-of-court workout on dissenting minority creditors.
Rights over immovable properties are commonly taken as securities for financing. Financiers will usually take a statutory charge where the issued documents of title are available. This confers a right on the financier to take possession and/or sell the charged property. A less common form of security over land is the lien holder caveat. Both forms of security need to be registered under the National Land Code (NLC).
Where the issued document of title is not available, the financier will usually take an absolute assignment over the rights of the immovable property. Assignment over sale proceeds is another common form of security. A valid absolute assignment needs to be created in accordance with section 11 of the Civil Law Act 1956.
Debentures conferring fixed and floating charges over assets of the company, including shares, stocks, intellectual property, and accounts are a common form of security. Default allows the debenture holder to appoint receivers or R&Ms over the company. CA 2016 introduced various provisions concerning R&Ms appointed to companies, including a specific provision on powers of receivers or R&Ms in liquidation.
Other common securities created over movable properties include:
Depending on the nature of the insolvency proceedings brought, a creditor’s right to enforce its security can be affected.
Corporate Voluntary Arrangement
The company is protected by an automatic moratorium after an application for a CVA is filed in court. The automatic moratorium remains in force for 28 days, unless it is extended with the consent of creditors.
Among other things, the moratorium prevents any appointment of a judicial manager from being made and any other proceedings and any execution or other legal process from being commenced or continued against the company or its property (except with leave of the court).
A company is protected by an automatic moratorium during the interim period from the filing of an application for a JM order until the application is dismissed. However, this moratorium has relatively limited effect, as follows:
A wider moratorium takes effect when a JM order is made, and has the following additional effects:
In fact, upon the making of a JM order, any receiver and R&M shall vacate office, and any application for the winding-up of the company shall be dismissed.
A moratorium may be extended beyond the initial 28 days at a meeting of the company and a meeting of creditors summoned under section 399 of CA 2016. The moratorium may be extended to a period of not more than 60 days, subject to:
Scheme of Arrangement
There is no automatic moratorium when an application for an SA is made. A restraining order can, however, be sought under section 368(1) of CA 2016 for the company to formulate and finalise a scheme.
The rights of secured creditors are protected in respect of a CVA and JM.
Under section 400(4) of CA 2016, a proposed CVA that affects the right of a secured creditor to enforce its security shall not be approved at the meeting of the company or its creditors, unless the secured creditor consents to the proposal.
Under section 409 of CA 2016, a court will not make a JM order in the following circumstances:
Generally, secured creditors enjoy priority over unsecured creditors.
For an SA, secured creditors are invariably classed separately from unsecured creditors. In a CVA, it is statutorily prohibited to convene a meeting to approve a proposal that affects the rights of a secured creditor to enforce their security, unless the secured creditor concurs.
A court shall dismiss an application for a JM order if a secured creditor objects to it. Furthermore, a judicial manager can dispose of assets that are subject to a floating charge but the security holder continues to have the same priority. However, a judicial manager cannot dispose of assets that are subject to a security other than a floating charge, which requires leave of the court. Even when leave is granted, it is a requirement that the order stipulates that the net proceeds of the disposal shall be applied towards discharging the sums secured by the security.
When an insolvent company is wound up, section 527 of CA 2016 recognises a preferred class of unsecured debts. The unsecured debts adopt the following order of priority:
Unsecured trade creditors are generally kept whole during a restructuring, although there is no strict requirement to do so. For instance, in relation to a scheme of arrangement, it is possible to propose a scheme for a specific class of creditors only.
Voting in Favour
The support of unsecured creditors forming a majority of creditors in a financially distressed company is crucial.
In relation to CVAs, a proposed voluntary arrangement must be approved by 75% of the total value of creditors present and voting at the meeting called to consider the proposal.
For JM, the proposal must be approved by 75% of the total value of creditors whose claims have been accepted by the judicial manager, present and voting at the meeting. This is the same in respect of any revisions to the proposal.
There is no difference for a SA. Section 366(3) of CA 2016 requires the proposed compromise or arrangement to be agreed to by a majority of 75% of the total value of creditors present and voting at the meeting.
Separately, there is no automatic moratorium when a distressed company applies for an SA. The support of creditors forms a crucial part of the court’s consideration in deciding whether a restraining order should be allowed under section 368(2) of CA 2016.
In relation to a CVA, unsecured creditors dissatisfied by any act, omission or decision of the supervisor carrying out the voluntary arrangement may also appeal to the court for recourse. Among other actions, the court may confirm, reverse or modify any act or decision of the supervisor on appeal.
Creditors in a JM may establish a Committee of Creditors that calls upon the judicial manager to furnish information concerning the functions carried out by the judicial manager. A creditor is entitled to apply to the court for relief if the company’s affairs, business and property are being or have been managed by the judicial manager. Among other actions, the court may regulate the future management of the company’s affairs, business and property by the judicial manager, require the judicial manager to refrain from doing the act complained of, summon a meeting of creditors, and discharge the JM order and make such consequential provision as it deems fit.
In an SA, an approved scheme or compromise must be sanctioned by the court. At that stage, unsecured creditors can oppose the compromise or arrangement approved.
Pre-judgment attachments in the form of interlocutory injunctions are available in Malaysia. The courts have power to order Mareva or asset freezing injunctions pending disposal of an action. In cases where there is proof of the dissipation of assets, the courts may also appoint a receiver.
There is no priority of claims in restructuring and insolvency proceedings.
Corporate Voluntary Arrangement
An application is made to the High Court by filing the following, among other documents:
The nominee will summon a meeting of the company and creditors to decide whether to approve the proposed voluntary arrangement. The nominee must report the result of each meeting to the court and give notice of the results of the meetings to the Registrar and such other persons or bodies approved by the court.
The proposed CVA must be approved by a simple majority of the shareholders of the company and a majority of 75% in value of creditors present and voting at the meeting either in person or by proxy. Once the proposal has been approved, it will be binding on all creditors, including those who have voted against the proposal.
After the voluntary arrangement is approved, a supervisor will be appointed to supervise its implementation. The supervisor can be either the nominee or another insolvency practitioner.
Upon an application made in court, the judge may make a JM order and appoint a judicial manager if:
These items are known as the “Statutory Objectives” of a JM.
The judicial manager is obliged to send a statement of his/her proposal for achieving one or more of the Statutory Objectives to the Registrar of Companies and all creditors of the company, and must present the same before a meeting of creditors within 60 days of the date of the JM order or such longer period as the court may allow.
The proposal must be approved by 75% of the total value of creditors, whose claims have been accepted by the judicial manager, present and voting at the meeting. Once the proposal is approved, it becomes binding on all creditors. If creditors do not approve the proposal at the meeting, the court may discharge the JM order after receiving the judicial manager’s report, or may make any consequential provision to the JM order that it deems fit, adjourn the hearing on conditions, or make an interim order.
Scheme of Arrangement
An order needs to be obtained from the court to summon a meeting of creditors and members to consider a proposed compromise or arrangement. The court has the power to order an approved liquidator to assess the viability of the proposed compromise or arrangement and to issue an order to restrain proceedings against the company pending finalisation of the proposed compromise or arrangement.
The proposed compromise or arrangement has to be agreed to by a majority of 75% of the total value of the creditors or class of creditors. The approved compromise or arrangement must then be approved by the court.
The directors of companies under a CVA and SA remain in control of the management of said companies. That is not the case for JM: all powers and duties imposed on directors shall be exercised by the judicial manager so long as the JM order is in force. The judicial manager is responsible for the management of the affairs, business and property of the company.
Companies under a CVA and JM enjoy a moratorium upon filing the application with the court. However, the moratorium is for a limited period and can only be extended upon certain conditions being met. For an SA, the applicants need to apply for a restraining order from the court.
Companies can continue to operate. A judicial manager can borrow money and grant security. However, no steps can be taken to impose security over the property of a company under a CVA during the moratorium except with leave of the court.
Scheme of Arrangement
Creditors are put into separate classes in respect of compromises and arrangements in a proposed SA. There is no such requirement for JM and CVAs.
Where there are different classes of creditors in a proposed compromise or arrangement, a class must be confined to those creditors whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest to avoid the unnecessary proliferation of classes. The recent decision in AirAsia X Bhd v BOC Aviation Ltd & Ors  10 MLJ 942 makes it clear that the selection of creditors in each class needs to be determined at the convening stage.
Creditors will receive an explanatory statement setting out the details of the proposed compromise or arrangement. The court may appoint an approved liquidator to assess the viability of the proposed SA and prepare a report, which will be presented at the meeting of creditors.
In considering whether to approve a compromise or arrangement, the court will examine whether a class of creditors was fairly represented by those who attended the meeting and whether the statutory majority was acting in a bona fide manner and not coercing the minority in order to promote interests that were adverse to those of the class who they purport to represent.
A judicial manager is obliged to send a statement of his/her proposal to all creditors, and to present the same before a meeting of creditors within 60 days of the date of the JM order or such longer period as the court may allow. Notice of the proposal must be published in a widely circulated newspaper in Malaysia under the national language and the English language.
Corporate Voluntary Arrangement
The terms of the proposed voluntary arrangement are part of the document filed by the company when it applies for a CVA. The same proposal will be tabled at the meeting of creditors.
There is no cram-down or cram-up procedure.
A creditor may sell a debt owed by the company by way of an assignment. The trading of claims against a company may not be enforceable due to strict common law rules on champerty.
The reorganisation of a corporate group can be achieved through an SA under section 370 of CA 2016. The following needs to be proved to the court:
The court’s approval will be required. When approving the compromise or arrangement, the court will make provision for the following:
When a company is under JM, the judicial manager can dispose of its properties by public auction or private contract. However, as mentioned in 5.1 Differing Rights and Priorities, the judicial manager’s right to do so is subject to any existing security interest. The judicial manager may also borrow money and grant security over the property of the company.
A company protected by a restraining order obtained pursuant to an SA application cannot dispose of any of its property without leave of the court, other than in the ordinary course of business. Such disposals are void.
There is no such restriction for CVAs.
In an SA and CVA, the sale of assets or businesses will be executed by the directors of the company. For a company under JM, the judicial manager will effectuate the sale.
The rights of secured creditors can be released, provided the secured debt is fully repaid or the secured creditor allows a redemption of the security based on a negotiated redemption sum. However, in the case of JM, the judicial manager can dispose of the secured assets subject to the limitations mentioned in 5.1 Differing Rights and Priorities.
There is no procedure that enables new money to be secured against assets that are subject to a pre-existing security without the consent of the secured creditors.
A proof of debt is conducted for an SA and JM to determine the claims and debts of the creditors.
For an SA, the court’s approval of the proposed compromise or arrangement is necessary for it to be binding on all creditors. A court is likely to give its approval if:
In certain instances, the judicial manager in a judicial management has power to disclaim the personal liability of contracts entered by the company and adopted by him or her. In cases where the liquidator proposes a compromise or arrangement under a CVA and SA, the liquidator has the power to disclaim an onerous contract.
The judicial manager has power to make any arrangement or compromise to release non-debtor parties from liabilities. However, if the release unfairly prejudices the interests of the company’s creditors, a creditor or member may apply to the court to restrain the judicial manager, among other actions.
If the liquidator had proposed a compromise or arrangement for a CVA or SA, the liquidator has the power to enter into such compromises with the approval of the committee of inspection or the court.
Under sections 430(2) and 526 of CA 2016, a court can order that the provision on mutual set-off applies to the JM. Again, in cases where the liquidator proposes a compromise or arrangement under a CVA or SA, the liquidator can exercise the mutual set-off against creditors.
The judicial manager has a duty to manage the affairs, business and property of the company based on the proposal. Where there is non-observance, the manager could propose revisions and seek approval from creditors. If an approved arrangement cannot be achieved, the judicial manager is obliged to apply for the JM order to be discharged.
In a CVA, the approved arrangement comes to an end under section 402 of CA 2016 if the voluntary arrangement is not fully implemented. If they so wish, a supervisor can apply to the court for directions when there is non-observance, and is also entitled to apply for the company to be wound up or for a JM order to be made.
For an SA, the approved scheme will usually provide for the termination of the scheme and its effect on the creditors.
Equity owners have no right to receive or retain any ownership or other property on account of their ownership interests. This is also unlikely in cases involving the restructuring of an insolvent company.
As mentioned earlier, a company can be voluntarily or compulsorily wound up.
A company may be wound up voluntarily when it so resolves by special resolution. The directors are required to make a declaration with a statement of affairs that the directors have made an inquiry into the affairs of the company, and at a meeting of directors have formed the opinion that the company is unable to pay its debts in full within a period not exceeding 12 months from the commencement of the winding-up.
The company and the creditors will nominate a person to be the liquidator, in separate meetings. If the creditors and company nominate different persons, the person nominated by the creditors shall be the liquidator.
A creditor is entitled to petition the High Court to compulsorily wind-up a company that is unable to pay its debts. A company is presumed to be unable to pay its debts when it fails to satisfy a statutory demand issued under section 466(1) of CA 2016 after 21 days.
Creditors and contributories of the company are entitled to appear in court to oppose or support the winding-up petition. The petitioning creditor is entitled to propose an insolvency practitioner to be appointed a liquidator. The Official Receiver otherwise becomes the liquidator of the company.
No action or proceeding can proceed or be commenced against a company after the commencement of a winding-up. Leave of the court is required for such actions or proceedings to continue. In relation to a compulsory winding-up, a company can apply for any pending action to be stayed after the presentation of a winding-up petition.
The liquidator takes over the affairs of the company when it is wound up. The directors of the company in liquidation do not have the power to act on behalf of the company, except as consented to or sanctioned by the liquidator.
A liquidator has power to disclaim the property of a company consisting of estates in land burdened with onerous covenants, shares in corporations, unprofitable contracts or unsaleable property. An application to the court for leave to do is required.
There is a statutory right to mutual credit and set-off, provided such right existed before the commencement of the winding-up. An account needs to be taken before a set-off.
Every creditor is obliged to prove their debt. A secured creditor is entitled to value their security and claim in a winding-up as an unsecured creditor for the balance. Except for preferential unsecured creditors, all debts rank pari passu and shall be paid in full, unless the property of the company is insufficient to meet the debts, in which case the payment is reduced, and the rate of reduction shall be in equal proportion.
The liquidator negotiates, executes and authorises the sale of assets. However, as noted earlier, in the administration of the assets and distribution among creditors, the liquidatorshall have regard to the wishes of creditors, contributories or the committee of inspection. The liquidator passes good title to a purchaser in such a sale.
The liquidator has wide powers to “sell the immovable property and movable property and things in action of the company by public auction, public tender or private contract with power to transfer the whole thereof to any person or company or to sell the same in parcels.” While there is no restriction regarding to whom the liquidator can sell the asset, the liquidator is not unrestricted.
The power is subject to the control of the court: see North Plaza Sdn Bhd v Equiticorp Holdings Ltd and other appeals  3 MLJ 617. As mentioned earlier, the liquidator shall have regard to the wishes of creditors, contributories or the committee of inspection.
If requested by creditors, the liquidator may summon separate meetings of creditors and contributories to determine whether to appoint a committee of inspection. The committee of inspection plays a crucial role in the liquidation. For instance, in the administration of the assets and distribution among creditors, the liquidator shall have regard to any directions given by creditors, contributories or the committee of inspection.
The committee of inspection can authorise the liquidator to exercise selected powers under the 12th Schedule, Part II of CA 2016, which includes carrying on business and making compromises or arrangements with creditors.
The existing insolvency laws in Malaysia do not have extra-territorial effect.
Malaysia is not a party to any international treaty on cross-border insolvency and has not adopted as part of its law the UNCITRAL Model Law on Cross-Border Insolvency (1997) or the UNICTRAL Model Law on Recognition and Enforcement of Insolvency-Related Judgments 2018.
Although an insolvency practitioner who is appointed as judicial manager or liquidator takes custody or control of all property to which the company is entitled, including property outside Malaysia, it is a matter for the court of the relevant foreign jurisdiction to recognise the rights of the judicial manager or liquidator.
The courts do not have protocols or arrangements with foreign courts to co-ordinate proceedings.
There is no applicable rule to determine which jurisdiction's decisions, rulings or law govern or are paramount.
Foreign creditors are not dealt with differently in proceedings.
A final judgment issued by a superior court from a foreign country can be recognised and registered as a Malaysian judgment under the Reciprocal Enforcement of Judgments Act 1958 (REJA). The reciprocating countries under REJA are:
Foreign judgments from non-reciprocating countries can be recognised by way of common law action upon judgment.
The court will not enforce a foreign judgment if:
The statutory officers appointed by the court are as follows:
The judicial manager is deemed to be the agent of the company. His or her principal duties include:
The judicial manager has extensive powers under the 9th Schedule to CA 2016 to discharge his or her duties, which include:
In discharging his/her duties, the judicial manager is accountable to the creditors and members of the company, in view of the statutory protection accorded to creditors and members under section 425 of CA 2016.
The nominee under a CVA is responsible for:
If the proposed voluntary arrangement is approved by creditors, the nominee becomes the supervisor that oversees the implementation thereof.
If a creditor or any other person is dissatisfied by any act, omission or decision of the supervisor, the company’s creditor may appeal against the same to the court.
The liquidator’s duties include:
A liquidator has extensive powers under the 12th Schedule to CA 2016, including making any compromise or arrangement with the company’s creditors through a CVA or SA. Any creditor dissatisfied with any decision of a liquidator can appeal against the decision.
Statutory officers must be insolvency practitioners, who are approved liquidators other than the Official Receiver. Section 433(3) of CA 2016 states that a member of a recognised professional body may apply to the Minister of Finance to be an approved liquidator. The Malaysian Institute of Accountants (MIA) and Malaysian Institute of Certified Public Accountants (MICPA) are recognised professional bodies under the Guidelines for Qualification as Liquidator under the Companies Act 2016 issued by the Accountant General of Malaysia.
In the application for a JM order, the applicant will nominate a person to act as a judicial manager, who must be an independent insolvency practitioner and not the auditor of the company. The court may refuse the applicant's nomination and appoint another insolvency practitioner as the judicial manager.
Where a nomination is made by the company, a majority in value of creditors (including contingent and prospective creditors) may be heard in opposition to the nomination and the court may, if satisfied as to the value of the creditors’ claims and the grounds of the opposition, invite the creditors to nominate a person who is an insolvency practitioner to act as the judicial manager and adopt the nomination if it deems fit.
The nominee is proposed by the directors of the company, who will also nominate the nominee as the supervisor or trustee to supervise the implementation of the CVA. However, if a judicial manager proposes a CVA, he or she may also be the nominee.
The court has powers to replace a nominee. Replacement of nominees can be made by the directors or the Official Receiver where the nominee fails to comply with their duties, or where it is inappropriate for the nominee to continue to act.
The court can also replace a supervisor if it is expedient to appoint a person to carry out the function, and if it is inexpedient, difficult or impracticable for an appointment to be made without the court’s assistance.
A creditor may propose their choice of an approved liquidator to be appointed in the winding-up petition.
If an approved liquidator is not appointed at the hearing of the petition, the Official Receiver becomes the interim liquidator until he/she or another person becomes liquidator. In such cases, the Official Receiver will summon separate meetings of creditors and contributories to determine whether an application should be made to the court to appoint a liquidator to replace him/her.
Upon cause being shown, a liquidator can be removed by the court.
Under CA 2016, an “officer” of a company includes any director, secretary or employee of the company. The word "director" for certain sections of CA 2016 includes the chief executive officer, chief financial officer, chief operating officer or any other person primarily responsible for the management of the company.
Directors and officers are bound by their common law duty of fidelity and fiduciary duties to, among others, act in the best interests of the company, and to exercise reasonable care, skill and diligence in performing their duties. They are also statutorily bound by similar duties imposed under sections 213 to 229 of CA 2016. For instance, directors shall exercise their powers for proper purposes and in good faith in the best interests of the company and shall exercise reasonable care, skill and diligence, and there are prohibitions against improper use of property, position, etc.
Directors and officers of distressed companies can be potentially liable for fraudulent trading and misfeasance proceedings and be ordered to pay damages and make restitution under sections 540 and 541 of CA 2016.
Breaches of directors’ statutory duties attract penal consequences. An officer of a company that is being wound up may also be penalised for actions intended to frustrate the winding-up of the company, such as falsifying documents, failing to keep proper accounts of the company, etc. See sections 536, 538 and 539 of CA 2016.
A creditor can bring fraudulent trading and misfeasance claims against a director under sections 540 and 541 of CA 2016.
In JM, any transaction (including the making of any payment or the transfer, mortgage or delivery of goods) by the company with the intention of clearing the debts owed to a specific creditor in preference over another creditor shall be void when the application for a JM order is submitted within six months of the date of that transaction. However, such a transaction will not be void for undue preference if it is carried out in good faith and for valuable consideration.
Likewise, the disposal of the assets of a wound-up company that is unable to pay its debts from its own money within six months is deemed fraudulent and void. The disposal will not be void if it is in favour of any person dealing with the company for valuable consideration and without any actual notice of the contravention.
There is no law on transactions of undue preference entered into before the commencement of an application for an SA and a CVA.
The look-back period is six months from the transaction.
Proceedings to set aside transactions are brought by the judicial manager and the liquidator.
COVID-19 continued to take its toll on the Malaysian economy in 2021.
On 12 November 2021, Bank Negara Malaysia (BNM) reported that Malaysia's economy contracted 4.5% year-on-year in the third quarter of 2021. This comes after a 5.6% contraction of Malaysia’s GDP in 2020, which was the second worst contraction since the Asian financial crisis in 1998.
Notwithstanding that, Malaysia recently announced its largest-ever budget, at MYR332.1 billion for 2022. Malaysia’s economic growth is reported to accelerate by 5.5% to 6.5% in 2022. BNM also increased its allocation under its fund for small and medium-sized enterprises (SMEs) by MYR4.5 billion, bringing the total available to support SMEs to MYR11.2 billion.
Moratorium and Non-performing Loans (NPL)
Since the start of the pandemic, the government has introduced various measures to help micro-enterprises and SMEs (MSME), including announcing an automatic moratorium on loan repayments for six months in March 2020. The moratorium was not extended in October 2020, but was re-introduced in July 2021 when the Malaysian economy was severely impacted by enhanced lockdown measures imposed to stop the third wave of COVID-19. In an article that discussed the second moratorium, Fitch Ratings stated that “Reported NPLs may stay low in 2021 with problematic retail and MSME loans not falling due until 2022, but the challenging economic environment remains.”
Insolvency practitioners and financiers will no doubt be keeping an eye on how the second moratorium will pan out in 2022.
There have been a significant number of reported cases on schemes of arrangementand judicial managements in 2021, with ten applications for judicial management and 28 applications for restraining orders pursuant to a proposed scheme of arrangement being made. By comparison, there were 36 applications for judicial management and 14 applications for restraining orders in 2020.
The statistics show important trends for 2022.
Firstly, judicial management was introduced under the Companies Act 2016 (CA 2016), which came into effect on 1 March 2018, and was not popular. Under judicial management, the directors are not in the driving seat of the company: the judicial manager takes control of the affairs, business and property of the company. Unsurprisingly, there were only 16 applications for judicial management in 2018 and nine in 2019.
During the pandemic, financially distressed companies resorted to judicial management presumably because the company was immediately protected upon filing the application, and shielded from court proceedings and winding-up orders. No steps can be taken to enforce any charge or security over the company, nor to repossess any goods under hire purchase or leasing.
Secondly, there was a significant drop in applications for judicial management in 2021. Interestingly, this followed two reported decisions in late 2020 where the court laid down strict criteria for a judicial management order: Re Sin Soon Hock Sdn Bhd  MLJU 1242 and Re Biaxis (M) Sdn Bhd  MLJU 1188, and recently applied in Federal Power Sdn Bhd v Dara Consultant Sdn Bhd  MLJU 2114.
Thirdly, schemes of arrangement proved to be the popular mode of corporate restructuring for public listed companies in particular in 2021, and this trend will probably continue in 2022. In addition to the existing judicial precedents, recent decisionsmake schemes of arrangement an obvious and predictable restructuring tool: Mansion Properties Sdn Bhd v Sham Chin Yen & Ors  1 MLJ 527; AirAsia X Bhd v BOC Aviation Ltd & Ors  10 MLJ 942; Sentoria Bina Sdn Bhd v Impak Kejora Sdn Bhd & Ors  MLJU 1184; and Re Top Builders Capital Bhd & Ors  10 MLJ 327.
Schemes of arrangement also became the only choice of court restructuring mechanism for public listed companies. In October 2021, the High Court dismissed Scomi Group Berhad’s application for judicial management because it was not available to public listed companies.
Amendments to CA 2016
Insolvency practitioners anticipate that the government will make significant amendments to the existing corporate rescue mechanisms – see Companies Commission of Malaysia’s (CCM) Consultative Document on The Proposed Companies (Amendment) Bill 2020. The proposed amendments are discussed below.
Scheme of arrangement
Automatic moratorium upon an application for restraining order
Under CA 2016, an application to convene a meeting to propose a compromise or arrangement is typically accompanied by an application for a restraining order, which is sought so that the intended arrangement can be proposed at the meetings with creditors without the threat of winding-up. However, stringent pre-conditions are imposed before a restraining order is allowed.
The new provisions will introduce an automatic moratorium for an initial period of 60 days. This can be extended for ten months if certain conditions are met.
Restraining orders against related companies
Under the new provisions, where it has made a restraining order, the court may, upon the application of a subsidiary, a holding company or an ultimate holding company of that company (Related Companies), grant an order to restrain an action or proceedings against the Related Companies and also the enforcement of security over the property of the Related Companies.
Upon an application made by any creditor of a company or its Related Companies, the court may make orders to restrain the disposition of property other than disposals in good faith and in the ordinary course of business of the company or its Related Companies, and to restrain the transfer of any shares in or altering the rights of any members of the company or its Related Companies.
Super priority for rescue financing
New provisions have been proposed to encourage financiers to provide distressed companies with rescue financing. Rescue financiers will enjoy “super priority” – ie, rescue financiers will be repaid first in priority to existing creditors. A similar provision will also be introduced for judicial management.
Cross-class cram-down in a scheme of arrangement
Under CA 2016, a scheme of arrangement can only be implemented if 75% in value of creditors approve the scheme, which enables a small number of dissenting creditors to jeopardise the entire scheme. The cram-down mechanism is to compel one or more dissenting classes of creditors to be bound by the scheme while at the same time affording adequate protection to those dissenting creditors.
The new provisions can compel one or more dissenting classes of creditors to be bound by the scheme in the following circumstances:
Empowering the court to order a meeting to revote
The court has power under CA 2016 to approve a compromise or arrangement subject to such alterations or conditions as it deems just. There is, however, no power to order a revote.
The proposed provision is intended to assist the court in making better decisions with regards to the proposed scheme. It avoids the whole process from having to start all over and will invariably save costs and time.
Codification of the filing, inspection and adjudication of proofs of debt in relation to a scheme of arrangement
This new provision will introduce procedures for proofs of debt for a proposed compromise or arrangement. Among other matters, the new provision will stipulate a deadline for filing a proof of debt and the appointment of a person to adjudicate the proof.
Empowering the court to approve a compromise or an arrangement without having the meeting of creditors
This amendment allows the court to approve a compromise or an arrangement without first having the meeting of creditors, but only if it is satisfied that the creditors would have agreed to the proposed scheme if the meeting of creditors had been convened.
Empowering creditors to apply to the court for a review of the decisions made by the company during the moratorium
This new provision will empower the court to reverse actions or decisions made by the company if there has been an act or omission that results in a breach of the terms of the scheme of arrangement.
Corporate voluntary arrangement and judicial management
The amendments extend corporate voluntary arrangements and judicial management to all companies except:
Allowing a secured creditor to recover property other than immovable property during a moratorium
This provision will allow a secured creditor to recover property other than immovable property during the moratorium of a corporate voluntary arrangement and judicial management. The power is exercisable only in the following circumstances:
Continuation of supply of essential goods and services
This proposed amendment will ensure that essential goods and services under existing contracts continue to be provided when the company is under a scheme of arrangement, corporate voluntary arrangement or judicial management. This will ensure the operations of the company are not impacted when the company is restructured.