1. APPROVAL OF INDUSTRIAL PROJECTS
1.1 THE INDUSTRIAL CO-ORDINATION ACT 1975
Malaysia's Industrial Co-ordination Act 1975 (ICA) aims to secure orderly development and growth in the country's manufacturing sector.
The ICA requires manufacturing companies with shareholders'funds of RM2.5 million and above or engaging 75 or more full-time employees to apply for a manufacturing licence for approval by the Ministry of International Trade and Industry (MITI).
Applications for manufacturing licences are to be submitted to the Malaysian Industrial Development Authority (MIDA), an agency under MITI in charge of the promotion and coordination of industrial development in Malaysia.
1.2 GUIDELINES FOR APPROVAL OF INDUSTRIAL PROJECTS
Malaysia's industrial growth has been rapid over the last decade. This has created a high demand for labour in the manufacturing sector which, in turn, has caused a tightening in the labour market situation.
In view of this, the government's guidelines for approval of industrial projects in Malaysia are based on the Capital Investment Per Employee (C/E) Ratio. Projects with a C/E Ratio of less than RM55,000 are categorised as labour-intensive and thus will not qualify for a manufacturing licence or for tax incentives. Nevertheless, a project will be exempted from the above guidelines if it fulfils one of the following criteria:
* Value-added is more than 30%
* The Managerial, Technical and Supervisory (MTS) Index exceeds 15%
* The project undertakes promoted activities or products (please refer to the List of Promoted Activities and Products - High Technology Companies)
* It is located in the Eastern Corridor of Peninsular Malaysia (the states of Kelantan, Terengganu, Pahang and the district of Mersing in Johor), Sabah and Sarawak. Expanding Production Capacity and Diversification of Products. A licensed company which desires to expand its production capacity or to diversify by manufacturing additional products will need to apply to MIDA
* The Eastern Corridor of Peninsular Malaysia covers Kelantan, Terengganu, Pahang and the district of Mersing in Johor.
2. INCORPORATING A COMPANY
2.1 METHODS OF CONDUCTING BUSINESS IN MALAYSIA
In Malaysia, a business may be conducted:
(a) By an individual operating as a sole proprietor, or
(b) By two or more (but not more than 20) persons in partnership, or
(c) By a locally incorporated company or by a foreign company registered under the provisions of the Companies Act 1965.
All sole proprietorships and partnerships must be registered with the Companies Commission of Malaysia (CCM) under the Registration of Businesses Ordinance 1956. In the case of partnerships, partners are both jointly and severally liable for the debts and obligations of the partnership should its assets be insufficient. Formal partnership deeds may be drawn up governing the rights and obligations of each partner but this is not obligatory.
2.1.1 COMPANY STRUCTURE
The Companies Act 1965 governs all companies in Malaysia. The Act stipulates that a person must register a company with the CCM in order to engage in any business activity.
It provides for three types of companies:
(a) A company limited by shares where the personal liability of its members is limited to the par value of their shares and the number of shares taken or agreed to be taken by them
(b) A company limited by guarantee where the members guarantee to meet liability up to an amount nominated in the Memorandum and Articles of Association in the event of the company being wound up
(c) An unlimited company, where there is no limit to the members' liability.
2.1.2 COMPANY LIMITED BY SHARES
The most common company structure in Malaysia is a company limited by shares. Such limited companies may be either private (Sendirian Berhad or Sdn. Bhd.) or public (Berhad or Bhd.) companies.
A company having share capital may be incorporated as a private company if its Memorandum and Articles of Association:
(a) Restricts the right to transfer its shares
(b) Limits the number of its members to 50, excluding employees and some former employees
(c) Prohibits any invitation to the public to subscribe for its shares and debentures
(d) Prohibits any invitation to the public to deposit money with the company.
A public company can be formed or, alternatively, a private company can be converted into a public company subject to Section 26 of the Companies Act 1965. Such a company can offer shares to the public provided:
(a) It has registered a prospectus with the Securities Commission
(b) It has lodged a copy of the prospectus with the CCM on or before the date of its issue.
A public company can apply to have its shares quoted on the Kuala Lumpur Stock Exchange (KLSE) subject to compliance with the requirements laid down by the exchange. Any subsequent issue of securities (e.g. issue by way of rights or bonus, or issue arising from an acquisition, etc.) requires the approval of the Securities Commission.
2.2 PROCEDURE FOR INCORPORATION
To incorporate a company, a person must apply to the CCM using Form 13A together with a payment of RM30 in order to determine if the proposed name of the intended company is available. If it is, the application will be approved and the proposed name reserved for the applicant for three months.
A person must then lodge the following documents with the CCM within the three months to secure the use of the proposed name:
(a) Memorandum and Articles of Association
(b) Declaration of Compliance (Form 6)
(c) Statutory declaration by a person before appointment as a director, or by a promoter before incorporation of a company (Form 48A).
The Memorandum of Association documents the company's name, the objects, the amount of its authorised capital (if any) proposed for registration and its division into shares of a fixed amount.
The Articles of Association describes the regulations governing the internal management of the affairs of the company and the conduct of its business.
Once the Certificate of Incorporation is issued, the subscribers to the Memorandum together with such other persons as may from time to time become members of the company shall be a body corporate, capable of exercising the functions of an incorporated company and of suing and being sued. It has a perpetual succession under common seal with power to hold land, but with such liability on the part of the members to contribute to its assets in the event of it being wound up, as provided for in the Companies Act.
2.2.1 REQUIREMENTS OF A LOCALLY INCORPORATED COMPANY
A company must maintain a registered office in Malaysia where all books and documents required under the provisions of the Act are kept. The name of the company shall appear in legible romanised letters, together with the company number, on its seal and documents.
A company cannot deal with its own shares or hold shares in its holding company. Each equity share of a public company carries only one vote at a poll at any general meeting of the company. A private company may, however, provide for varying voting rights for its shareholders.
The secretary of a company must be a natural person of full age who has his principal or only place of residence in Malaysia. He must be a member of a prescribed body or is licensed by the Registrar of Companies. The company must also appoint an approved company auditor to be the company auditor in Malaysia.
In addition, the company shall have at least two directors who each has his principal or only place of residence within Malaysia. Directors of public companies or subsidiaries of public companies normally must not exceed 70 years of age. It is not incumbent that a company director also be a shareholder.
2.3 REGISTRATION OF FOREIGN COMPANIES
A foreign company desiring to conduct business or establish a place for one in Malaysia must register with the CCM. The same registration procedure applies whereby an application must be submitted on Form 13A to the CCM in Kuala Lumpur or any of its branch offices in Malaysia, with a payment of RM30. If the intended name of the foreign company is available, the application will be approved and the name reserved for three months.
Upon approval, applicants must lodge the following documents with the CCM:
(a) A certified copy of its Certificate of Incorporation (or a document of similar effect) from the country of origin
(b) A certified copy of its Charter, Statute or Memorandum and Articles of Association or other instrument constituting or defining its constitution
(c) A list of its directors and certain statutory particulars regarding them (Form 79)
(d) Where there are local directors, a memorandum stating the powers of those directors
(e) A memorandum of appointment or power of attorney authorising one or more persons resident in Malaysia to accept on behalf of the company, service of process and any notices required to be served on the company
(f) A statutory declaration in the prescribed form made by the agent of the company (Form 80).
The appointed agent undertakes all acts required to be done by the company under the Companies Act 1965. Any change in agents must be reported to the CCM.
Every foreign company shall, within a month of establishing a place of business or commencing business within Malaysia, lodge with the CCM for registration notice of the situation of its registered office in Malaysia using the prescribed form.
A foreign incorporated company must file a copy of the annual return each year within one month of its annual general meeting. Within two months of its annual general meeting, the company must file a copy of the balance sheet of the head office, a duly audited statement of assets used in and liabilities arising out of its operations in Malaysia, and a duly audited profit and loss account.
3. GUIDELINES ON EQUITY POLICY
3.1 EQUITY POLICY IN THE MANUFACTURING SECTOR
Malaysia has always welcomed investments in its manufacturing sector. Desirous of increasing local participation in this activity, the government encourages joint-ventures between Malaysian and foreign investors. Equity Policy for New Investment, Expansion or Diversification Projects
The level of exports had been used to determine foreign equity participation in manufacturing projects. However, since 31 July 1998, the Malaysian government has relaxed the equity policy guidelines for foreign investors for all investments in new projects as well as investments in expansion/diversification projects whereby foreign investors can hold 100% equity irrespective of the level of exports. However, this relaxation only applies to applications to set up manufacturing projects that are received by 31 December 2003.
In addition, it does not apply to specific activities and products where Malaysian small and medium scale companies have the capabilities and expertise. These activities and products are paper packaging, plastic packaging (bottles, films, sheets and bags), plastic injection moulded components, metal stamping and metal fabrication, wire harness, printing and steel service centres. In these cases, specific equity guidelines prevail.
To further enhance Malaysia's investment climate, foreign equity holdings in all manufacturing projects have been fully liberalized effective from 17 June 2003. Thus, foreign investors can now hold 100% of the equity in all investments in new projects, as well as investments in expansion/diversification projects by existing companies, irrespective of the level of exports and without any product/activity being excluded.
EQUITY POLICY APPLICABLE TO EXISTING COMPANIES
Equity and export conditions imposed on companies prior to 17 June 2003 will be maintained. However, companies can request for these conditions to be removed. The government will be flexible in considering such requests and approval will be given based on the merits of each case.
The new equity policy also applies to :
(a) Companies previously exempted from obtaining a manufacturing licence but whose shareholders' funds have now reached RM2.5 million or have now engaged 75 or more full-time employees and are thus required to be licensed.
(b) Existing licensed companies previously exempted from complying with equity conditions but are now required to due to their shareholders' funds having reached RM2.5 million.
RELAXATION OF EXPORT REQUIREMENTS FOR EXISTING COMPANIES
To enhance industrial linkages and domestic sales, the government has relaxed the export requirements imposed on existing manufacturing companies. As a result, companies with export conditions can now apply for approval from MIDA to sell in the domestic market:
(a) Up to 100% of their output for those products with nil duty or those not produced locally;
(b) Up to 80% of their output if the domestic supply is inadequate or there has been an increase in imports from ASEAN for products with Common Effective Preferential Tariff (CEPT) duties of 5% and below.
3.2 PROTECTION OF FOREIGN INVESTMENT
Malaysia's commitment in creating a safe investment environment has persuaded more than 4,000 international companies from over 50 countries to make Malaysia their offshore base.
A company whose equity participation has been approved will not be required to restructure its equity at any time as long as the company continues to comply with the original conditions of approval and retains the original features of the project.
INVESTMENT GUARANTEE AGREEMENTS
Malaysia's readiness to conclude Investment Guarantee Agreements (IGAs) is a testimony of the government's desire to increase foreign investor confidence in Malaysia. IGAs will:
(a) Protect against nationalisation and expropriation.
(b) Ensure prompt and adequate compensation in the event of nationalisation or expropriation.
(c) Provide free transfer of profits, capital and other fees.
(d) Ensure settlement of investment disputes under the Convention on the Settlement of Investment Disputes of which Malaysia has been a member since 1966.
Malaysia has concluded Investment Guarantee Agreements with the following groupings and countries (in alphabetical order):
* Association of South-East Asian Nations (ASEAN)
* Organisation of Islamic Countries (OIC)