Section 36 — CENTRAL BANK OF MALAYSIA ACT 2009

(2)

This section shall have full force and effect notwithstanding—

(a)

any conflict or inconsistency between this section and any other provision of this Act;

(b)

anything contained in any law including the law by or under which the financial institution is constituted, established, incorporated or registered; or

(c)

anything contained in the constituent document of the financial institution or in any contract entered into by or on behalf of the financial institution or in any contract affecting the shares or other capital instruments issued by or otherwise relating to the financial institution.

(3)

Where the Bank makes an order to a financial institution referred to in subparagraph 32(1)(c)(iii), the Bank shall give notice of such order by publication in at least two daily newspapers published in

Malaysia, one of which shall be in the national language.

(4)

The notice under subsection (3) shall include the transacted price of the transfer and the right of any affected person to appeal under

44 Laws of Malaysia ACT 701

subsection (11) on the transacted price to the Assessor Committee constituted under subsection (12).

(5)

The transacted price referred to in subsection (4) shall be determined by an independent valuer.

(6)

Subject to subsection (14), the transferee and the transferor shall mutually agree on the person to be appointed by the Bank as the independent valuer under subsection (5).

(7)

Where an agreement under subsection (6) cannot be reached between the transferee and the transferor within a period the Bank determines to be reasonable, the appointment of an independent valuer shall be made by the Minister upon the matter being referred to him by the Bank and the decision of the Minister shall be final.

(8)

The remuneration of the independent valuer appointed under subsection (6) or (7) shall be payable out of the transacted price unless otherwise determined by the Bank.

(9)

In determining the transacted price under subsection (5) for the business, assets, liabilities, shares or other capital instruments of the transferor, the independent valuer shall—

(a)

have regard to matters which the independent valuer considers relevant including the prevailing market conditions for sale or disposal of similar business, assets, liabilities, shares or other capital instruments of the transferor; and

(b)

disregard any benefit derived from any special financial assistance provided directly or indirectly by the Bank or the Government to the transferor.

(10)

Notwithstanding subsection (9), where the transferor is insolvent and the whole of the business, assets or liabilities of the transferor are vested under subparagraph 32(1)(c)(iii), a consideration of one ringgit shall be deemed to be reasonable as the transacted price under subsection (5).

Central Bank of Malaysia 45

(11)

Any person aggrieved by the transacted price may, within twenty-one days from the date of publication of the notice under subsection (3), appeal on the transacted price to the Assessor

Committee constituted under subsection (12) by submitting the appeal in writing to the Bank.

(12)

Where any person appeals under subsection (11), the Bank shall constitute an Assessor Committee consisting of three independent persons as members of the Assessor Committee, drawn from a panel of ten persons appointed by the Minister on the recommendation of the

Board Governance Committee, and refer the appeal to the Assessor

Committee.

(13)

The Assessor Committee constituted under subsection (12)

may determine its own procedures.

(14)

Where the vesting under subparagraph 32(1)(c)(iii) is to be in the Bank or a body corporate established by the Bank under paragraph 48(1)(d), the independent valuer referred to in subsection (5) shall be appointed by the Minister.

(15)

A vesting of the business, assets, liabilities, shares or other capital instruments of a transferor under subparagraph 32(1)(c)(iii)

shall take effect despite any appeal under subsection (11), or any decision made by the Assessor Committee.

(16)

The Bank may, as it deems necessary, in exercising its powers under subparagraph 32(1)(c)(iii) in relation to a transferor, by order in writing—

(a)

remove from office, with effect from such date as may be specified in the order, any director, officer or employee of the transferor;

(b)

vary or terminate the contract of service of any director, officer or employee of the transferor as may be specified in the order; or

46 Laws of Malaysia ACT 701

(c)

appoint any person as a director, officer or employee of the transferor subject to such terms and conditions as the

Bank may specify.

(17)

Before exercising its powers under subsection (16), the Bank shall give the director, officer or employee of such transferor an opportunity to make representation.

(18)

For purposes of this section—

“transacted price” means the price at which the whole or part of the business, assets or liabilities of, or all or any of the shares or other capital instruments of a financial institution referred to in subparagraph 32(1)(c)(iii) is vested in the transferee;

“transferee” means the Bank, a body corporate established by the

Bank under paragraph 48(1)(d), a financial institution, or any other person, as the case may be, in which is vested under subparagraph 32(1)(c)(iii) the whole or part of the business, assets or liabilities of, or all or any of the shares or other capital instruments issued by the financial institution which has ceased to become viable or which the

Bank considers likely to become non-viable;

“transferor” means the financial institution under subparagraph 32(1)(c)(iii) which has ceased to become viable or which the Bank considers likely to become non-viable, the shareholders of such financial institution or the holders of the capital instruments of such financial institution, as the case may be.

Financial Stability Executive Committee