Malaysia legislation
Section 23
Section 23
(2)
Where a foreign representative makes such an application under subsection (1), the provisions of the Companies Act 2016
and the Labuan Companies Act 1990 as referred to in subsection (1)
shall apply—
(a)
regardless of whether the debtor is being wound up, is placed under judicial management, or is undergoing a scheme of compromise or arrangement under the
Companies Act 2016 or the Labuan Companies Act 1990, as the case may be; and
(b)
subject to the modifications specified in subsection (3).
Act 877
(3)
For the purposes of this section, the applicable modifications are as follows:
(a)
for the purposes of section 366 of the Companies Act 2016, the date which corresponds with the commencement of a scheme of compromise or arrangement shall be the date of the opening of the relevant foreign proceedings;
(b)
for the purposes of section 426 of the Companies Act 2016, the date which corresponds with the presentation of an application for judicial management shall be the date of the opening of the relevant foreign proceedings;
(c)
for the purposes of section 472 of the Companies
Act 2016, the date which corresponds with the presentation of a winding up petition shall be the date of the opening of the relevant foreign proceedings;
(d)
for the purposes of sections 528, 529, 530, 531, 540
and 541 of the Companies Act 2016, the date which corresponds with the presentation of a winding up petition in the case of winding up by Court or passing of the resolution in the case of voluntary winding up, shall be the date of the opening of the relevant foreign proceedings; and
(e)
for the purposes of section 20 of the Labuan Companies
Act 1990, the date which corresponds with the date the ultra vires transaction is sought to be restrained shall be the date of the opening of the relevant foreign proceedings.
(4)
For the purposes of subsection (3), the date of the opening of the relevant foreign proceedings shall be determined in accordance with the law of the foreign State where the foreign proceedings take place, including any rule of law under which the foreign proceedings are deemed to have been opened at an earlier date.
(5)
Where the foreign proceedings are foreign non-main proceedings, the Court shall be satisfied that the application under this section relates to property which, under the laws of Malaysia, should be administered in the foreign non-main proceedings.
Cross-Border Insolvency 25
(6)
Where, at the time the application is filed, proceedings in respect of the debtor are pending under Malaysian insolvency law, the foreign representative shall not make an application under this section without the leave of the Court.
(7)
Upon granting an order in relation to the application under this section, the Court may give such directions regarding the distribution of any proceeds of the claim by the foreign representative, as it thinks fit, to ensure that the interests of creditors in Malaysia are adequately protected.
(8)
Nothing in this section shall affect the rights of a Malaysian insolvency office-holder to make any application under, or in connection with, any of the provisions specified in subsection (1).
(9)
Subsection (1) shall not apply in respect of any preference given, floating charge created, alienation, assignment made, or other transaction entered into before the date of the coming into operation of this Act.
Intervention by foreign representative in proceedings in Malaysia