Insights / Updates

Stay up to date with legal developments in Malaysia.

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The Dividing Line between Indemnities and Guarantees

When drafting indemnities and guarantees, parties should take heed of the differences between the two.

In particular, parties should consider the following:

(a) Whether parties intend:

i.  for the promisor's obligation to hinge upon a default of the principal contract (thus rendering the contract between the parties a guarantee, rather than an indemnity); or

ii.  for the promisor's obligation to be separately and independently enforced (this being a characteristic of an indemnity, rather than a guarantee); and,

(b) Whether parties intend for a variation of the principal contract to have the effect of discharging the promisor's obligations (this again being a characteristic of a guarantee, as distinct from an indemnity).

The latest judgment of the Admiralty Court at Kuala Lumpur in GJ Consultancy Sdn Bhd v Gan Teck Lim [2021] MLJU 933 examines the scope of indemnities and guarantees, and the differences between the two.

In doing so, the Admiralty Court undertook a detailed examination of the documents in question and relied on leading Common Law authorities, which were read with provisions of the Malaysian Contracts Act.

A Guide to the Real Estate Industry in Asia

A keen understanding of the nature of real estate and the legal and regulatory issues related to this asset class is critical to working out the basic features of any real estate deal. The Rajah & Tann Asia’s “Guide to the Real Estate Industry in Asia” gives you a brief overview of certain key insights to the real estate industry in the ten jurisdictions across Rajah & Tann Asia’s geographical footprint, namely, Cambodia, China, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam. Topics covered in the Guide include the legal framework, types of real estate, ownership and tenure, taxes as well as important issues that an investor of real estate in the region should take note of.

In its second edition, we hope that this Guide will be a useful aid to investors who are navigating or looking to navigate this part of the world for their real estate investments.

A key pillar of our strength is our Rajah & Tann Asia network with offices in these ten jurisdictions, as well as dedicated desks focusing on Japan and South Asia. With the most extensive legal network in Asia, our lawyers have a tight grasp of the local culture, business practices, and language not just within their own home countries, but in the other markets in which they frequently conduct cross-border deals as well. Our depth of transactional and regulatory experience allows us to advise clients strategically and creatively, from structuring to eventual execution and implementation of the transaction.

This gives us an unparalleled edge over our competitors in presenting and pursuing solutions that are both practical and cost-effective. It provides our clients with the "home advantage" in any corporate real estate matters.

Recent Malaysian Court Decision Sheds Light on Proof of Debt Exercise in Scheme of Arrangement and the Test for Granting Leave to Proceed against Restraining Order

In the recent decision of the Malaysian High Court in Re Top Builders Capital Bhd & Ors [2021] 10 MLJ 327 ("Top Builders"), Ong Chee Kwan JC examines the proof of debt exercise in a scheme of arrangement ("SOA") and the guiding principles governing the granting of leave to proceed with legal proceedings against a financially distressed company that has obtained a restraining order (moratorium) pursuant to a SOA.

This Update provides a summary of the decision and highlights the procedure and approach for the assessment of the proofs of debt for voting in a scheme and sets out the test and considerations when granting leave to a creditor to proceed with its legal proceedings against a company with a restraining order.