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⁷ Ibid.

⁸ Ibid.

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¹⁰ Becht, M. & Mayer, C. , “Corporate Control in Europe” (2002) 112(4) Revue d’Economie Politique 471–498 CrossRefGoogle Scholar, find that more than 25% of listed European companies have more than one large shareholder and Faccio, M. & Lang, L. H. P., “The Ultimate Ownership of Western European Corporations” (2002) 65 Journal of Financial Economics 365–395 CrossRefGoogle Scholar using a sample of 3,300 Western European corporations, document the presence of a second large shareholder in 46% of the corporations with at least one controlling shareholder.

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¹⁴ Supra note 1.

¹⁵ Ibid.

¹⁶ Supra note 1.

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²¹ Ibid.

²² See online: <http://www.pcg.gov.my/faq.asp> (last accessed 5 May 2013).

²³ Gomez, E. T. & Jomo, K. S., Malaysia’s Political Economy, Politics, Patronage and Profits (Cambridge: Cambridge University Press, 2002)Google Scholar.

²⁴ Kahan, Marcel & Rock, Edward B., “When the Government Is the Controlling Shareholder” (2011) 89 Tex. L. Rev. 1293 Google Scholar; Megginson, William L. & Netter, Jeffry M., “From State to Market: A Survey of Empirical Studies on Privatization” (2001) 39 J. Econ. Lit. 321 CrossRefGoogle Scholar, 380 but contrast with Martin, Stephen & Parker, David, “Privatization and Economic Performance Throughout the UK Business Cycle” (1995) 16 Managerial & Decision Econ. 225 CrossRefGoogle Scholar, 235-236.

²⁵ Pargendler, Mariana, “State Ownership and Corporate Governance” (2012) 80 Fordham L. Rev. 2917.Google Scholar

²⁶ Ibid.

²⁷ Claessens, S. et al., “Who Controls East Asian Corporations” (Policy Research Working Paper 2054) (The World Bank, 1999).Google Scholar

²⁸ Claessens, S. et al., “Disentangling the Inventive and Entrenchment Effects of Large Shareholding” (2002) 57 Journal of Finance 2741–2771.CrossRefGoogle Scholar

²⁹ R. Thillainathan, “Corporate Governance and Restructuring in Malaysia – A Review of Markets, Mechanisms, Agents and The Legal Infrastructure” (1999), paper prepared for the joint World Bank/OECD Survey of Corporate Governance arrangements in a selected number of Asian countries.

³⁰ Ibid.

³¹ Ameer, R., Fairuz, R. & Zakaria, H., “A New Perspective on Board Composition and Firm Performance in an Emerging Market” (2010) 10(5) Corporate Governance 647–661.CrossRefGoogle Scholar

³² Zulkafli, A. H., Abdul Samad, M. F. & Ismail, I., Corporate Governance In Malaysia (Malaysian Institute of Corporate Governance, 2005)Google Scholar, online: <http://www.micg.net/research/> (last accessed April 2007).

³³ On Tam, Kit & Tan, Monica Guo-Sze, “Ownership, Governance and Firm Performance in Malaysia” (2007) 15(2) Corporate Governance – An International Review 208–222.CrossRefGoogle Scholar

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³⁵ Sourced from shareholdings analysis in annual reports 2006/2007 of respective companies from the Bursa Malaysia website, online: <http://www.bursamalaysia.com/market/listed-companies/list-of-companies/main-market/> (last accessed 20 November 2011).

³⁶ EMIS database, online: <http://site.securities.com> (last accessed 14 December 2011).

³⁷ Examples of family-owned PLCs in Malaysia, amongst others, are Genting Bhd, Berjaya Group Bhd, and YTL Berhad.

³⁸ Khazanah Nasional, online: <www.Khazanah.com.my> (last accessed 28 November 2011).

³⁹ Lau, Y. W. & Tong, C. Q., “Are Malaysian Government Linked Companies (GLCs) Creating Value?” (2008) 1(1) International Applied Economics and Management Letters 9–12.Google Scholar

⁴⁰ Yoshihara, K., The Rise of Ersatz Capitalism in South-East Asia (Singapore: Oxford University Press, 1988)Google Scholar.

⁴¹ Johnson, S. & Mitton, T., “Cronyism and Capital Controls: Evidence from Malaysia” (2003) 67(2) Journal of Financial Economics 351–82 CrossRefGoogle Scholar; Yatim, P., Kent, P. & Clarkson, P., “Governance Structures, Ethnicity, and Audit Fees of Malaysian Listed Firms” (2006) 21(7) Managerial Auditing Journal 757–782 CrossRefGoogle Scholar; Gul, F. A., “Auditors’ Response to Political Connections and Cronyism in Malaysia” (2006) 44(5) Journal of Accounting Research 931–963.CrossRefGoogle Scholar

⁴² Bank Negara Report (Malaysia: Bank Negara Malaysia, 2009). It was below the RM19.3 billion achieved in 2007 when the global economic crises began. See The Daily Express (13 March 2009), online: The Daily Express <www.dailyexpress.com.my> (last accessed 1 October 2013): member of parliament, Lim Guan Eng, a qualified accountant, told parliament Khazanah’s performance had not been encouraging despite the economic storm, saying its records showed that in 2008, Khazanah’s portfolio fell RM17.8 billion with overall Realisable Asset Value (RAV) deteriorating to RM70.4 billion on 31 December 2008 from RM88.2 billion on 31 May 2008. He stated that what was more worrying is the net worth, RAV less total liabilities, stood at RM 33.7 billion at 31 December 2008 against RM 53.1 billion at 31 May 2008. This amounts to a reduction of RM19.4 billion or a drop of 36.5% in just six months.

⁴³ Gomez, E. T. & Jomo, K. S., Malaysia’s Political Economy, Politics, Patronage and Profits (Cambridge: Cambridge University Press, 2002)Google Scholar.

⁴⁴ This is also highlighted in the following articles, Torii, T., “The New Economic Policy and the United Malays National Organisation, with Special Reference to the Restructuring of the Malaysian Society” (2007) 35(3) The Developing Economies 209–239 CrossRefGoogle Scholar; Shamsul, A. B., “The Economic Dimension of Malay Nationalism – The Socio-Historical Roots of the New Economic Policy and Its Contemporary Implications” (1997) 35(3) The Developing Economies 240–261 Google Scholar: The journal of the Institute of Developing Economies, Tokyo, Japan. Carlton, Vic.: Wiley-Blackwell, ISSN 0012-1533, ZDB-ID 4270290; Heng, P. K., “The New Economic Policy and the Chinese Community in Peninsula Malaysia” (1997) 35(3) The Developing Economies 262.Google Scholar

⁴⁵ A Consultative Document by the Companies Commission of Malaysia, Clarifying and Reformulating the Directors’ Role and Duties (Malaysia: SSM, 2006)Google Scholar.

⁴⁶ See the U.K. Directors Remuneration Report Regulation 2002.

⁴⁷ The Corporations Act 2001 of Australia has included Say on Pay provisions since 2005.

⁴⁸ “OSC staff notice 54-701 regulatory developments regarding shareholder democracy issues”, online: <http://www.osc.gov.on.ca/en/securitieslaw_rule_20110110_54-701_reg-proposal.htm> (last accessed 3 March 2012).

⁴⁹ The U.S. Dodd-Frank Act requires every public company in the United States to include in the proxy for its first shareholder meeting held on or after 21 January 2011 an advisory non-binding Say on Pay vote on executive compensation, as well as a separate vote to determine whether subsequent Say on Pay votes will be held annually, or at intervals of two or three years.

⁵⁰ Achieved through the introduction of the Enterprise and Regulatory Reform Bill 2012, Clause71.

⁵¹ Institute of Directors, “Executive Remuneration Discussion Paper” (25 November 2011), online: <http://www.iod.com/mainwebsite/resources/document/executive-pay-discussion-paper. pdf> (last accessed 29 November 2011).

⁵² This differs from earlier government proposals which would have given shareholders a binding vote on a case by case basis on any exit payment which exceeds the equivalent of one year’s base salary.

⁵³ The Corporations Amendment (Improving Accountability on Director and Executive Remuneration) Act 2011 (Cth.).

⁵⁴ Ibid.

⁵⁵ L. Bebchuk, “Written Testimony Submitted Before the Committee on Financial Services United States House of Representatives Hearing on Empowering Shareholders on Executive Compensation” (2007). Written Testimony Submitted by Professor Lucian A. Bebchuk William J. Friedman & Alicia Townsend Friedman Professor of Law, Economics, and Finance and Director of the Corporate Governance Program Harvard Law School. Before the Committee on Financial Services United States House of Representatives Hearing on Empowering Shareholders on Executive Compensation, 8 March 2007. See online: <http://www.law.harvard.edu/faculty/bebchuk/pdfs/2007_HFSC.pdf> (last accessed 12 June 2013).

⁵⁶ Section 951 of the Dodd-Frank Act amends the Securities Exchange Act of 1934 by adding s. 14A, which requires companies to conduct a separate shareholder advisory vote to approve the compensation of executives. Section 952 of the Act requires compensation committees to be composed exclusively of independent directors. Relevant factors the exchanges must consider include the source of compensation of the director and whether a director is affiliated with an issuer or a subsidiary or an affiliate of a subsidiary. Section 953 says companies must disclose the relationship between executive compensation actually paid and the financial performance of the issuer.

⁵⁷ Juan E. Monteverde, Emily C. Komlossy & Ross A. Appel, “Battling for Say on Pay Transparency” (2012), online: <http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2013_corporate_counselcleseminar/7_1_battling_for_say_on_pay.authcheckdam.pdf> (last accessed 18 June 2013).

⁵⁸ Prudential Assurance Co Ltd v. Newman Industries Ltd (No 2) [1982] Ch 204, at 210.

⁵⁹ The CEO of Genting Berhad is Tan Sri Lim Kok Thay who is the son of the founder Tan Sri Lim Goh Tong. The CEO of Berjaya Group is the founder Tan Sri Vincent Tan who holds 41.23% of the shares. Both of them sit in the remuneration committee.

⁶⁰ Aznita Ahmad Pharmy & Dorothy Teoh, “NEDs Under the Spotlight” (22 February 2010), online: <http://www.theedgemalaysia.com/sports/161261-neds-under-the-spotlight.html> (last accessed 7 December 2011).

⁶¹ The MCCG was published in 2000 and was recently revised in 2007. The 2007 MCCG was superseded by the MCCG 2012.

⁶² Paragraph 15.25 of the Listing Requirements. Note that this “comply or explain” approach was specifically mentioned in MCCG 2000 and 2007 but that statement is no longer put in the MCCG 2012 although in the MCCG 2012, it is stated that: Listed companies are however required to report on their compliance with the MCCG 2012 in their annual reports.

⁶³ This was also recommended by MCCG 2007.

⁶⁴ The PriceWaterhouseCoopers (2005), “Board Remuneration & Practices in Relation to Board Effectiveness: An Update” (2005), online: <http://www.pwc.com/gx/en/corporate-reporting/governance-reporting/good-practice-corporate-governance-reporting.jhtml> (last accessed 24 November 2013). Mohd-Sulaiman, A. N. & Wan Jusoh, W. J., “Duty of Care, Skill and Diligence: A Survey on Non-Executive Directors in Public Listed Companies in Malaysia” (2005) 1(2) The Corporate Governance Law Review 305.Google Scholar A survey in 1998 found that most companies do not have a remuneration committee. However, a 2006 survey showed that at least 75% of listed companies have a remuneration committee. See “Malaysian survey on Public listed companies, Independent Non-executive directors and institutional groups” (2002), Corporate Governance in Malaysia – An Investor Perspective 2006, The Institute of International Finance, Inc., online: <http://www.iif.com/download.php?id=soTU1PxWTJc=> (last accessed 3 July 2011).

⁶⁵ Consultation Paper on Review of the Code on Corporate Governance Practices and Associated Listing Rules (December 2010), online: <http://www.hkex.com.hk/eng/index.htm> (last accessed 2 November 2011).

⁶⁶ Jaafar, Syaiful Baharee, James, Kieran & Wahab, Effiezal Aswadi Abdul, “Remuneration Committee and Director Remuneration in Family-Owned Companies: Evidence from Malaysia” (November 2012) 8(7) International Review of Business Research Papers 17–38.Google Scholar

⁶⁷ Consultation Paper on Review of the Code on Corporate Governance Practices and Associated Listing Rules (December 2010), online: <http://www.hkex.com.hk/eng/index.htm> (last accessed 2 November 2011).

⁶⁸ See MCCG 2007: Part 2 Best practices in corporate governance-XXIII Use of Board Committees: Where the board appoints a committee, it should spell out the authority of the committee and, in particular, whether the committee has the authority to act on behalf of the board or just the authority to examine a particular issue and report back to the board with a recommendation.

⁶⁹ 2011 EU Green Paper on Corporate Governance in Financial Institution COM (2011) 164, online: <http://ec.europa.eu/geninfo/query/index.do?swlang=en#queryText=2011+EU+Gre en+Paper+on+Corporate+Governance+in+Financial+Institution+COM+(2011)+164&tab=europa> (last accessed 5 November 2012).

⁷⁰ See Siow Chen Meng, “Stock Options Bonanza”, online: <www.theedgedaily.com> (last accessed 16 October 2006); Andrew Khoo, “My Say: A Move in the Wrong Direction” The Edge (25 May 2004).

⁷¹ See Jennifer G. Hill & Charles M. Yablon, “Corporate Governance and Executive Remuneration: Rediscovering Managerial Positional Conflict” (Vanderbilt Law and Economics Research Paper No. 03-02), online: <http://ssrn.com/abstract=375240> (last accessed 15 June 2013) or DOI: 10.2139/ssrn.375240. Also available in (2002) 25 University of New South Wales L.J. 294.

⁷² John Durie, “Fury at NAB’s Underperformance Is Gathering Steam” The Australian (14 December 2012) at 28, online: The Australian <www.theasutralian.com.au/business> (last accessed 15 June 2013).

⁷³ Lawton, Phillip, “Directors’ Remuneration, Benefits and Extractions, an Analysis of Their Uses, Abuses and Controls in the Corporate Governance Context of Hong Kong” (1995) As. J.C.L. 430–458.Google Scholar

⁷⁴ Mohd-Sulaiman, A. N. & Wan Jusoh, W. J., “Duty of Care, Skill and Diligence: A Survey on Non-executive Directors in Public Listed Companies in Malaysia” (2005) 1(2) The Corporate Governance Law Review 305 Google Scholar, supra note 64.

⁷⁵ The company had initiated legal proceedings against the former directors but the case has been stayed pending the criminal action against the directors by SC, the Malaysian capital market regulator.

⁷⁶ Ismail, Zaidi Isham, “GHope Fails in Bid to Sell Negara Prop” Business Times (22 November 2005) (Malaysia).Google Scholar The proposed merger was between Negara Properties and Island & Peninsular. The failure could be due to failure to address minority shareholders’ dissatisfaction. It was reported that the valuation of Negara Properties was not acceptable to minority shareholders of GHPB who were concerned that they have not been fairly treated. This was also in consideration of the recommendations made by two independent advisers, Malaysian International Merchant Bankers Bhd to the shareholders of Negara Properties and Public Merchant Bank Bhd to the minority shareholders of Golden Hope Plantations Bhd (GHPB) respectively: see Dalila Abu Bakar, “MSWG wants GHope to Reconsider VGO for Negara Properties” Asia Africa Intelligence Wire (18 March 2005), online: Asia Africa Intelligence Wire <http://www.accessmylibrary.com/coms2/summary_0286-19157782_ITM> (last accessed 1 April 2012). However, a merger between Island & Peninsular and Golden Hope Properties subsequent to this event obtained minority shareholders’ approval. At the early stages of the merger discussion over the same concern about pricing was also raised. Ahmad, Massita, “I&P Receives Shareholders’ Nod for Proposed Merger with GHope” Asia Africa Intelligence Wire (28 September 2004).Google Scholar

⁷⁷ [2012] 2 AMCR 521.

⁷⁸ This is a compulsory superannuation scheme for serving members (other than officers) in the Armed Forces who are required to contribute 10% of their monthly salary to LTAT with the government as employer contributing 15%. Participation by officers is voluntary at a contribution of a minimum of RM 25 with a maximum of RM 200 monthly: see online: <www.ltat.org.my> (last accessed 10 April 2012).

⁷⁹ MSWG was established as part of the governance reform agenda in Malaysia. It is a public company limited by guarantee funded by five founding organisations: EPF; Armed Forces Fund Board; National Equity Corporation; Social Security Organization and Pilgrimage Board. The objectives of MSWG activities are to develop and disseminate the educational aspects of corporate governance, to influence the decision-making process in public-listed companies as the leader of the minority shareholder interests, and to monitor breach and non-compliance of corporate governance practices by listed companies.

⁸⁰ See Azizan, Siti Sakinah & Ameer, Rashid, “Shareholder Activism in Family-Controlled Firms in Malaysia” (2012) 27(8) Managerial Auditing Journal 774–794 CrossRefGoogle Scholar; Ameer, R. & Abdul Rahman, R., “The Impact of Minority Shareholder Watchdog Group Activism on the Targeted Firms’ Performance in Malaysia” (2009) 5(1) Asian Academy of Management Journal of Accounting and Finance 67–92.Google Scholar

⁸¹ Dalila Abu Bakar, “MSWG Wants GHope to Reconsider VGO for Negara Properties” Asia Africa Intelligence Wire (18 March 2005), online: Asia Africa Intelligence Wire <http://www.accessmylibrary.com/coms2/summary_0286-19157782_ITM> (last accessed 2 April 2012).

⁸² Other past scandals include the Renong/UEM scandal. Here, the deal involving United Engineers (M) Bhd’s (UEM) put-and-call option raised many unanswered questions. It can be traced to November 1997, when UEM purchased a 32.6% block in Renong Bhd, its parent company, from the market at RM3.24 per share. The total cost came to about RM2.34 billion. The deal sent the whole market fretting. From whom UEM purchased the shares is still not known. Hence, former Renong executive chairman Tan Sri Halim Saad, in an effort to appease UEM’s minority shareholders and the regulator, entered into a put-and-call option, giving an undertaking to buy back the shares from UEM at RM3.24, inclusive of the holding cost. The entire amount would come up to RM3.2 billion on 14 February 2001, when the option was due. When the put option expired, there was however no settlement. In fact, Halim resigned from the Renong/UEM group in October 2001. Khazanah Nasional Bhd took UEM private in 2001 and later cancelled the option. UEM’s chief executive then, Abdul Wahid Omar (now Datuk Seri), told reporters that the option was cancelled on 16 November 2001, because “UEM needs to retain control of Renong”. So Halim got off without paying a cent of what was then valued at RM3.2 billion. See Tee Lin Say, “Famous Past Scandals”, online: <http://www.thestar.com.my/story.aspx?file=%2f2010%2f7%2f3%2fbusiness%2f6579934> (last accessed 15 May 2012).

⁸³ Sulaiman, Aiman Nariman Mohd, “Challenges of Public and/or Private Enforcement of the Corporate Governance Code” (2007) 6(1) Inter & Comparative Corporate Law Journal (ICCLJ) 17.Google Scholar

⁸⁴ 2011 EU Green Paper on Corporate Governance in Financial Institution COM (2011) 164, online: <http://ec.europa.eu/geninfo/query/index.do?swlang=en#queryText=2011+EU+Green+P aper+on+Corporate+Governance+in+Financial+Institution+COM+(2011)+164&tab=europa http://ec.europa.eu/geninfo/query/index.do?swlang=en#queryText=2011+EU+Green+ Paper+on+Corporate+Governance+in+Financial+Institution+COM+(2011)+164&tab=europa> (last accessed 5 November 2012) at 19.

⁸⁵ Sulaiman, Aiman Nariman Mohd, “Challenges of Public and/or Private Enforcement of the Corporate Governance Code” (2007) 6(1) Inter & Comparative Corporate Law Journal (ICCLJ) 17.Google Scholar

⁸⁶ In the Credit Lyonnais Securities Asia (CLSA) produced corporate governance rankings for 495 firms across 25 emerging markets and 18 sectors. Further, the CSLA have done a survey on emerging markets and the results indicate that though Malaysia scored the highest amongst the 10 countries surveyed for the rules and regulations that it has implemented, the perception of its enforcement of the same has been very poor. See CLSA Emerging Markets, CG Watch: Corporate Governance in Asia (Hong Kong: Asian Corporate Governance Association, 2002 and 2003). This annual survey which was initiated in the year 2000 is written by Amar Gill the Head of Hong Kong Research to examine the practice of corporate governance across 10 East Asian countries namely Hong Kong, India, Indonesia, Malaysia, the People’s Republic of China, the Philippines, the Republic of Korea, Singapore, Taiwan and Thailand. The report “Fakin’ It – Board Games in Asia” which was released on 5 May 2003 represents the first collaborative effort between CLSA and the Asian Corporate Governance Association (see online: <www.acga-asia.org> (last accessed 5 June 2013)). Also, commenting on the overall analysis of companies done under the CLSA Report 2012, CLSA Head of Asia Research, Amar Gill said: “Asian corporations fare worst on the independence of boards. The composition of the audit committee is a genuine test that most companies fail. Few have an independent chairman, and not many have a majority of independent directors. The potential for conflict of interest is a major issue.” Singapore still remains on the top of the chart with good corporate governance followed by Hong Kong and China, Korea and Indonesia were named as countries where corporate governance is a major issue. See online: <https://www.clsa.com/index.php> (last accessed 5 June 2013).

⁸⁷ See Pascoe, Janine, “Corporate Law Reform and Some ‘Rule of Law’ Issues in Malaysia” (2008) 38 Hong Kong L.J. 769 Google Scholar; see also OECD, “Corporate Governance in Malaysia: An Assessment” (Paper presented at the conference on Corporate Governance in Asia: A Comparative Perspective, Organised by OECD, Korea Development Institute, the Government of Japan and World Bank), online: <http://www.oecd.org/daf/corporateaffairs/corporategovernanceprinciples/1931420.pdf> (last accessed 5 June 2013).

⁸⁸ Ariffin, Bany & Hook, Siong, Law, “Family Control Business and Capital Market Development in Asean” (2008) 6 Icfai Journal of Financial Economics 46–55.Google Scholar

⁸⁹ See Isabelle Francis, “Hot Stock: E&O Rises After SC’s Legal Setback” (3 October 2012), online: <http://www.theedgemalaysia.com> (last accessed 15 August 2013).

⁹⁰ The Securities Commission of Malaysia’s five-year Corporate Governance (CG) Blueprint was launched in July 2011. It provides an action plan to elevate the standards of CG in Malaysia by strengthening self and market discipline and promote good governance. The MCCG (2012) would supersede MCCG 2007 effective from 31 December 2012.

⁹¹ There have been several research conducted on directors’ remuneration in Malaysia. PriceWaterhouseCoopers has conducted a survey on board remuneration and practices in 2002, see supra note 64. Another survey was for 2004: PriceWaterhouseCoopers, “Board Remuneration & Practices in Relation to Board Effectiveness: An Update”, supra note 64. A 2009 research conducted by KPMG in Malaysia focused specifically on profiling non-executive directors’ and their pay: KPMG and Audit Committee Institute, “2009 Non-executive Directors: Profile, Practices and Pay” (2009). In 2010, PriceWaterhouseCoopers published their study on financial directors’ remuneration entitled “Performance Pays” comprising a finding of what is the current situation and also proposing a framework for setting remuneration in the financial sector.

⁹² Supra note 86.

⁹³ Avi Licht, “Compensation Guidelines, Executive Compensation” (2013) online: <http://blogs.law.harvard.edu/corpgov/tag/avi-licht/> (last accessed 2 August 2013).