30.11.2022 Newsletter
Newsletter November 2022
We are happy to inform you about the latest legal developments in Asia. The authors of the articles are at your disposal for further questions and information.
JAPAN: When is the electronic signature sufficient?
When is the electronic signature sufficient?
In principle, the contracting parties are free to decide whether they accept a conclusion of contract with an electronic signature as sufficient.
What is often overlooked by lawyers in the international context is the question of the admissibility of the chosen procedure. For this is always determined by the chosen applicable law.
A current example from case law illustrates the problem very drastically:
A railway manufacturer participated in a tender of the Austrian Federal Railways (ÖBB) for 186 double-decker trains in autumn 2021. One condition was that the application be submitted with an electronic signature. The Swiss manufacturer did this with the help of a technical service provider certified in Switzerland, but the Federal Administrative Court in Austria then ruled, after an appeal by a French competitor, that the electronic signature chosen did not comply with EU law and determined that the award to the Swiss for the billion-euro contract was invalid. The applicable law was the law of Austria and in EU countries only eIDAS-compliant electronic signatures may be used. However, the courts in Austria ruled on appeal that ÖBB could repeat the tender, which it did.
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Your point of contact in Japan: Michael Müller
Mueller Foreign Law Office
Shin-Kasumigaseki Building
3-3-2 Kasumigaseki, Chiyoda-ku
Tokyo 100-0013, Japan
TEL +81 3 6805 5161
FAX +81 3 6805 5162
MALAYSIA: Chaos due to early elections? Why parliamentary elections in Malaysia are more likely to bring stability
Chaos due to early elections? Why parliamentary elecetions in Malaysia are more likely to bring stability
A few weeks ago, Malaysia also made it into the German media when the Sultan dissolved the parliament. RND - Redaktions Netzwerk Deutschland, for example, reported that the new elections would now be held nine months before the end of the parliamentary term. A date for these elections had not been set at the time, but now 19 November has been fixed.
What basically sounds like great chaos was generally well received. Oberall, it is expected that Malaysia can achieve more political stability through the new elections.
In May 2018, there was a political earthquake: For the first time since Malaysia's independence, the opposition won the elections. However, the alliance called the "Alliance of Hope" (Pakatan Harapan or PH for short) was not able to fulfil the high hopes and could only make limited use of the spirit of optimism. One of the reasons for this was certainly the fact that the PH is made up of a large number of political groups, some of which have conflicting interests.
In February 2020, for example, the infamous "Sheraton Move" (named after a meeting at the Sheraton Hotels & Resorts in Pualing Jaya) took place, in which several members of the ruling parties changed sides and caused a government crisis in the country. New elections have not taken place since then and there have been a number of party changes and thus new coalitions. As a result, there have been several government reshuffles and three different prime ministers since 2018.
Given this political turmoil and the COVID crisis, it is surprising that Malaysia has come through the last few years relatively well and has already returned to pre-Coronavirus levels economically speaking. It is not yet known how the new elections will turn out. However, it is generally expected that they will lead to stability. This is not least due to the fact that tere is now a new law that prohibits "party-hopping" - i.e. changing a party within the legislative period.
The elecetions are therefore expected to be positive for business in Malaysia and with Malaysian business partners!
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Your point of contact in Malaysia: Dr. Harald Sippel
Skrine
Level 8, Wisma UOA Damansara
50 Jalan Dungun, Damansara Heights
Kuala Lumpur, Malaysia
TEL +60 1 8211 4958
FAX +60 3 2081 3999
SINGAPORE: Singapore High Court finds emergency interim award enforceable
Singapore High Court finds emergency interim award enforceable
Is an interim award made by a foreign emergency arbitrator enforceable under the New York Convention? On 7 October 2022 the Singapore High Court answered this question.
In CVG v CVH the Singapore High Court confirmed that an interim award made by an emergency arbitrator in a foreign seated arbitraion was, in principle, enforceable in Singapore.
The court held that such an interim award could meet the definition of a "foreign award" under the Singapore International Arbitration Act (Ch. 143A) (IAA) and therefore could be enforced.
However, on this occasion the court refused to enforce the interim award on natural justice grounds after finding that the award debtor had been unable to present its case in the arbitration proceedings.
The decision can be found under the following link: https://www.elitigation.sg/gd/s/2022_SGHC_249.
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Your point of contact in Singapore: Dr. Andreas Respondek
Respondek & Fan Pte Ltd
1 North Bridge Road
#16-03 High Street Centre
Singapore 179094
CELL +65 9751 0757
TEL +65 6324 0060
FAX +65 6324 0223
SINGAPORE: New legal requirements for "nominee shareholders" and "controllers" from December 5th 2022
New legal requirements for "nominee shareholders" and "controllers" from December 5th 2022
On 4 October 2022, Singapore's Companies Act 1967 ("CA") and the "Limited Liability Partnerships Act 2005 ("LLP Act")" were amended as follows:
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Mandatory requirement to maintain a register of nominee shareholders ("RONS")
Singapore companies and foreign companies registered in Singapore ("foreign companies") are now required to maintain a non-public RONS containing prescribed details of nominee shareholders and their nominees; and
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Enhanced measures in the event that there is no registrable "controller" or the entity is unable to identify a registrable "controller":
Singapore companies, foreign companies or Singapore limited liability partnerships ("LLPs") that do not have a registrable "controller" or are unable to identify the registrable "controller" are required to identify persons with managerial control as their registrable "controllers".
Read more at: https://lnkd.in/eKnDAsJB.
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Your point of contact in Singapore: Dr. Andreas Respondek
Respondek & Fan Pte Ltd
1 North Bridge Road
#16-03 High Street Centre
Singapore 179094
CELL +65 9751 0757
TEL +65 6324 0060
FAX +65 6324 0223
THAILAND: Minimum wage increase from 1st of October 2022
Minimum wage increase from 1st of October 2022
On 26 August 2022, Thailand's National Wage Committee voted to increase the minimum wage to THB 328-354 per day (USD 9.01-9.72) - an increase of about 5 % from the previous range of THB 313-336. The decision to increase minimum wages, which were last raised in January 2020, came after a 14-year high inflation rate of 7.61 %in July 2022. The wage increase took effect on 1 October 2022. With these changes, the total monthly minimum wage in Thailand will average between THB 9,000 (USD 235) and THB 10,000 (USD 261).
Under Section 90 of the Labour Protection Act BE 2541 (1998), employers are prohibited from paying an employee less than the minimum wage prescribed in the Wage Board Notice. If going against this, the employer will be liable to imprisonment for a term not exceeding six months or a fine not exceeding THB 100,000 or both.
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Your point of contact in Thailand: Dr. Andreas Respondek
Respondek & Fan Ltd
United Center, 39th Floor, Suite 3904 B
323 Silom Road
Bangkok 10500, Thailand
CELL +66 89 896 4048
TEL +66 2 635 5498
FAX +66 2 635 5499
THAILAND: New introduction of the fusion for company mergers
New introduction of the fusion for company mergers
So far, there has only been "fusion/amalgamation" recognized for company mergers in Thailand but no fusion in the actual sense.
The Thai Parliament recently approved the amendment to the Civil and Commercial Code (CC) to introduce "mergers" as another method of business merging. As the amendment is to come into force 90 days after publication in the Official Gazette, we expect the new merger regime to be available in early 2023.
The merger (Company A + Company B = Company A or B) will be another method of business combination in addition to the already possible amalgamation (Company A + Company B = Company C). A company that is merged loses its status as a legal entity and the surviving company receives assets, liabilities, rights, duties and responsibilities by operation of law.
This allows for greater flexibility in licensing and authorisation requirements and reduces legal barriers to the transfer of employees, assets, liabilities etc. The legal change to the CCC would meaningfully promote and facilitate mergers and acquisitions (M&A) in Thailand.
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Your point of contact in Thailand: Dr. Andreas Respondek
Respondek & Fan Ltd
United Center, 39th Floor, Suite 3904 B
323 Silom Road
Bangkok 10500, Thailand
CELL +66 89 896 4048
TEL +66 2 635 5498
FAX +66 2 635 5499