Directors’ independence

Directorsโ€™ independence has been a key focus of the Securities Commission Malaysia (โ€œ๐—ฆ๐—–โ€) and Bursa Malaysia Securitiesย Berhadย (โ€œ๐—•๐˜‚๐—ฟ๐˜€๐—ฎโ€) lately as can be seen from the following amendments or proposed amendments:

๐—ฅ๐—ฒ๐˜ƒ๐—ถ๐˜€๐—ถ๐—ผ๐—ป ๐˜๐—ผ ๐— ๐—ฎ๐—น๐—ฎ๐˜†๐˜€๐—ถ๐—ฎ๐—ป ๐—–๐—ผ๐—ฑ๐—ฒ ๐—ผ๐—ณ ๐—–๐—ผ๐—ฟ๐—ฝ๐—ผ๐—ฟ๐—ฎ๐˜๐—ฒ ๐—š๐—ผ๐˜ƒ๐—ฒ๐—ฟ๐—ป๐—ฎ๐—ป๐—ฐ๐—ฒ (โ€œ๐— ๐—–๐—–๐—šโ€)
The SC issued the revised MCCG on 28 April 2021 which took effect on the same day. The revisions in relation to directorsโ€™ independence include:

1. recommending that ifย the board intends to retain an independent director (“ID”) after 9 years, the board should provide justification and seek annual shareholdersโ€™ approval via a 2-tier voting process (previously required after 12 years);

2. discouraging a listed issuer from appointing active politicians as directors;

3. recommending that board committee meeting to be conducted separately from board meeting to enable objective and independent discussion; and

4. recommending that the Audit Committee of a listed company to have a policy that requires aย former partner of the external audit firm of the listed company to observe a cooling-off period of at least 3 years before being appointed as an Audit Committee member. This applies to all former partners of the audit firm and affiliate firm (including those providing advisory services, tax consulting etc). Previously, the cooling-off period of at least 2 years applied to former key audit partner.

๐—”๐—บ๐—ฒ๐—ป๐—ฑ๐—บ๐—ฒ๐—ป๐˜๐˜€ ๐˜๐—ผ ๐—•๐˜‚๐—ฟ๐˜€๐—ฎ ๐—Ÿ๐—ถ๐˜€๐˜๐—ถ๐—ป๐—ด ๐—ฅ๐—ฒ๐—พ๐˜‚๐—ถ๐—ฟ๐—ฒ๐—บ๐—ฒ๐—ป๐˜๐˜€ (โ€œ๐—Ÿ๐—ฅโ€)
Bursa enhanced the requirements and eligibility of ID in the LR by:

1.ย lengtheningย the cooling-off period from 2 years to 3 years for:
(i) an officer;
(ii) an adviser; or
(iii) a transacting party of prescribed transactions,
of an applicant, listed issuer or any related corporation of the applicant or listed issuer; and

2. extending 3 years cooling-off period to a non-independent non-executive director.

The amendments have been in effect since 1 October 2020.

๐—•๐˜‚๐—ฟ๐˜€๐—ฎโ€™๐˜€ ๐—ฝ๐—ฟ๐—ผ๐—ฝ๐—ผ๐˜€๐—ฒ๐—ฑ ๐—ฎ๐—บ๐—ฒ๐—ป๐—ฑ๐—บ๐—ฒ๐—ป๐˜๐˜€ ๐˜๐—ผ ๐—Ÿ๐—ฅ
Bursa has issued a consultation paper on 21 July 2021 to seek public feedback by 1 September 2021 on, amongst others, the following proposed amendments to the LR in relation to directorsโ€™ independence:

1. amendment to the definition ofย โ€œindependent directorโ€ under the LR by specifying that an ID is one who has not served as an ID of an applicant, listed issuer or any related corporation of the applicant or listed issuer for a cumulative period of more than 12 years from the date of his first appointment as an ID; and

2. requiring a ID who has served for a cumulative 12 years to observe a cooling-off period of 3 years before he or she may be reappointed as an ID. The appointment is still subject to satisfaction of all the criteria on independence as set out in the LR as well as shareholdersโ€™ scrutiny and approval.

#malaysiancorporatelawyer
#directors
#corporategovernance

Linkedin Post
Five key steps for legal due diligence

Most lawyers are good at identifying issues, but legal due diligence shouldnโ€™t be limited to merely reviewing documents and identifying issues. Here are my five steps for conducting legal due diligence: 1. Identify the issues based on the scope of legal due diligence as agreed with the clients. 2.ย Provide recommendations …

Linkedin Post
Begin with the end in mind: Post-completion integration

I once worked on an M&A deal that took more than a year to complete. While the deal was not inherently complex, it dragged on due to delays in finalizing the details of the transaction agreements for reason beyond my control. As the deal involved a larger corporation acquiring a …

Lawyering
Being a Corporate Lawyer: Why I Do What I Do

After years of demanding schedule and juggling simultaneous corporate exercises which take a toll on physical and mental health, it is not surprising that some corporate lawyers experience burnout. Unlike some legal practice areas, the work of a corporate lawyer may not seem immediately impactful or โ€œmake a differenceโ€ to …