THE NEW TAXI LAW

Aiming to meet the needs of the population and the concerns of entrepreneurs in the segment of the passenger transport by taxi, Law no. 3/2019, published on the 4th March this year, approved the new legal regime for the taxi service activity that will enter into force on the 3rd of June 2019.

 

GENERAL FRAMEWORK

From the analysis of this new legal regime, we highlight the legislator’s initiative to attempt for the consolidation, in a single Law, of the legal framework for the transport of passengers by taxi (although it does foresee the need for complementary regulation), thereby reducing legal uncertainties associated to the previous regulatory framework, which was spread throughout several separate diplomas – some of which older than 30 years – and whose loopholes the Macau Administration attempted to tackle on the specifications of the public tenders launched from time to time to award administrative authorisations to carry out the provision of taxi services.

The new legal regime for the taxi service activity has also introduced significant changes in the licensing procedures and has strengthened the enforcement mechanisms, as well as introduced tougher fines in case of breach of activity requirements.

 

NEW LICENCE MODEL

Only commercial companies incorporated in Macau, with a minimum share capital of MOP5,000,000.00 and exclusive business scope dedicated to taxi services are eligible candidates to be awarded with a license to carry out the taxi service activity.

As for the award of the licences, the new law sets forth that in principle the same shall be granted by means of a public tender organized by the Transport Bureau. Such kind of public tenders must be announced in the Official Gazette up to 30 days before the date of the call for tender.

It is important to note that the new law foresees two types of licences – a general licence and a special license – both provided for fixed periods of time and without possibility of renewal.

Moreover, these new licences cannot be assigned or charged in favour of any third party.

The distinction between the two types of licences takes into account the places where the licence holders are authorized to pick up or to drop passengers. Therefore, holders of the general licence may pick up and drop passengers everywhere with the exception of those prohibited by law, whereas holders of the special licence may only do so at the places specifically indicated in their respective licences.

It should be noted, however, that the mere ownership of one of these licences is not sufficient for a company to start its business operations, as licence holders are required to apply – in accordance with their respective licences – for the permits of the vehicles that are intended to be assigned to the taxi activity.

 

THE TRANSITIONAL REGIME

With respect to existing permits, the new law allows the current license holders to continue carrying out the taxi activity, and if such permits are subject to a validity period, they may do so only until the expiration of their term or of its renewal term. Moreover, the assignment or charge of such licenses is also still allowed – however from now onwards such kind of agreements are required to be executed in writing and a notice of the same shall be made to the Transport Bureau.

According to the new law, current license holders have a period of 18 months counted from the date of the entry into force of the complementary regulations, to upgrade the respective taxis with the mandatory equipment that is defined by the new law, such as the global satellite navigation system and the sound and image recording system.

Lastly, holders of a professional taxi driver licence must, upon entry into force of the taxi law, apply at the Transport Bureau for the replacement of their former licences by taxi driver identification cards. Failure to do so will bar the existing taxi drivers from paying the annual tax fee, which will only be possible after the present licence is substituted by the new identification card.

 

André Castanheira Pinto
David Sá Machado

The offshore termination plan in the Macau S.A.R.

Background

The Government of the Macao Special Administrative Region (“MSAR”) has recently put forward and sent to the Legislative Assembly a proposal for the revocation of Decree-Law no 58/99/M, of 18th October. In other words, the whole offshore system in the MSAR is coming to a definitive end as the draft legislation sets the extinction of the offshore activity for the first day of the year 2021.

This provision comes as a follow-up measure after the Region was included in the European Union’s tax haven blacklist (since January 2018 transferred to the greylist), upon which the Government of the MSAR set itself to study and review in order to find strategies to improve the tax system for offshore institutions.

Despite this, the MSAR Government did not consider a regeneration of the offshore legislation and instead chose to end it once and for all.

It was not that long ago that the MSAR was praising the offshore sector as a gateway for the development of an international business centre in the region, whereas the justification note for the draft bill reads now that the current legislation “does not meet the needs and the environment of economic development” in the MSAR. Contrary to this claim however, at least Bank Institutions and quite a number of resident workers and Law Offices in the MSAR have been actively participating in sizeable financial operations involving local offshore companies.

Amongst the most relevant concerns, let us turn our attention to the most important consequences that such policy may arise, briefly analysing the draft legislation.

 

Overview

Comprised of merely five articles, the legislation’s focus was clearly set on a short-term termination of the offshore sector in the MSAR. Overall, the following consequences are somewhat evident:

  • Henceforth, no enterprise shall be able to be licenced as an offshore entity;
  • There will be an expiration of all licences as of 1st January 2021, although they may subsequently proceed with normal activities as domestic companies, provided that the respective articles of association are amended in accordance with the provisions of the new law as detailed bellow;
  • During the period between the date of entry of the new law and 31st December 2020 – the transitional period – offshore companies may still carry on their business although some of the offshore tax benefits shall cease as follows:
  1. Offshore institutions shall not benefit from:
  • the exemption from inheritance and donations tax on the free transfer of movable and unmoveable property exclusively affected to the offshore business;
  • the exemption from real estate transmission tax on properties affected, exclusively, to the offshore activity;
  • the exemption from stamp duty on donations between living persons to whom the exemption on (i) applies;
  1. The managers and high level specialized staff authorised to establish residence in the Territory, under the terms of the MSAR law, shall no longer be exempted of professional tax concerning the salaries paid to them by offshore institutions until 31st of December of the third year after the beginning of the activity in Macau;
  2. Offshore institutions with certain exemptions from income tax shall no longer be exempted from submitting the declarations stipulated in the regulations relating to income tax;
  3. Tax exemption over income, derived from intellectual property, that has been acquired as of 16th October 2017 shall cease, starting on 1st July 2018;
  • If offshore companies opt to convert as domestic companies they are required to change their business names and business scope. And thus, they will be since the incorporation date subject to full Macau complementary tax;
  • If offshore enterprises request the abovementioned changes within 90-days from 1st January 2021, they shall be exempted from the applicable taxes, notary and commercial registry fees.

 

Brief commentary

Although the offshore system is going to be abolished, the MSAR remains a tremendously competitive location.

On one hand, enterprises in the MSAR are able to take advantage of the privileged geo economic situation that the Region has to offer, given the increasingly closer relations with the People’s Republic of China as well as other relevant Asian countries. On the other hand, the training and specialisation of local workers in the MSAR, bearing higher academic qualifications, are also a key decisive factor for economic growth and success.

Therefore, is it very likely that most of the offshore institutions transformed into domestic companies shall remain in the MSAR, making it sufficiently attractive – together with the overall fiscal environment – for these companies to stay and do business in the MSAR.

However, companies wishing to continue their operations in the MSAR and willing to make the necessary amendments may face some challenges according to what is currently set in the draft legislation.

While the new law provides for a reasonable period for these companies to disappear as offshore entities and allows the same to maintain certain tax exemptions, it should be possible for these enterprises to become domestic companies over these two years and simultaneously benefit from the favourable tax regime foreseen in the new law, allowing the envisaged changes to take place in a smoother way and a wider period of time, rather than the proposed limited three-month time span commencing on the 1st January 2021.

Quite clearly, it is a mistake not to allow the transformation until 31st December 2020, as offshore companies could easily continue to benefit from a more relaxed period in which they could be allowed to readapt. In fact, most offshore enterprises have foreign partners abroad, which means that it might take some time for them to undertake the necessary measures.

At the very least, there should be an ex officio procedure or decision ordering the cancelation and deletion of registration from the Financial Services Bureau and the Commerce and Movable Property Registry, if these companies do not transform into domestic companies within the time frame established by the new law. Indeed, the proposed legislation merely states that the licence expires but does not refer what the consequences are if these companies do not adapt to the new regime, making them legally inoperable but formally existent at the same time.

Also, there shall be cases where offshore enterprises need time to discuss with the financial institutions, management, associated companies, group companies, etc., because of their joint financial responsibilities, which could lead to disastrous and unintentional defaults in the future, amid contractual duties and financial responsibilities.  In any case, offshore companies will have to start discussions with the banks regarding the upcoming changes brought by the draft law and explain that they will have to transform into normal commercial companies in order to continue trading. At the same time, the short-span deadline may also pose a problem for the Registry services themselves, facing up to 500 potential amendment requests in one go.

On the other hand, the draft legislation is also misleading in terms of defining what the companies’ scope of business are set to become in the near future. In fact, article 4 calls for an exclusion of these companies’ corporate object, leading to believe that their corporate activity is illegal, which is actually false, because their activity is entirely within the law’s boundaries and there are hundreds of companies with the same corporate object. As it happens, there is actual legislation mentioning several activities within the offshore commercial service and auxiliary service scope, in areas such as consultancy in information technology equipment, data processing, database activities, administrative and archival support, research and development, testing and technical analysis, ship and aircraft management and administrative services, and trade in goods and services between the People’s Republic of China and Portuguese-speaking countries. Therefore, the idea of transformation of a corporate name is correct, but not when applied to the corporate object, which is entirely legal, independently of being an offshore entity or a local corporation.

 

Conclusion

The somewhat straightforward solution adopted by the Government looks like being more a quick discard rather than a well-considered and informed decision. In short, the diploma has several deficiencies and its drafting should be reconsidered. There is no magic formula to make an offshore system disappear and taking any dodgy shortcuts will just make matters worse.

The Macau land law: Overview and status quo

1. The old law vs the new law

Much has been said and written about the expiration of concession leaseholds under Law no. 13/2013, of 2 September (the “New Land Law”), as opposed to the former Law no. 6/80/M, of 5 July (the “Old Land Law”).

In comparative terms, it should be noted that there are very little differences between the Old Land Law and the New Land Law, within the relevant controversial context, with particular emphasis to the preclusion of renewal of the provisional concessions as set forth by the New Land Law – within the terms set in paragraph 1 of its Article 48.

In this sense, a closer look at the Old Land Law and the New Land Law reveals that the previous article 55 and the current article 48 both converge on the understanding that there is no room for land lease renewal within provisional concessions, as this merely applies to definitive ones.

What did in fact change is the Government’s disposition towards the matter, now choosing to terminate the concessionaires licence due to expiration and to withhold any further concession leasehold awards, whereas in the past, it was customary practice from the Government to declare the expiration of the concession leaseholds due to term expiration, alongside the decision to regrant the licence with exemption of public tender, on the grounds of public interest – as shown, e.g. by Dispatch of the Secretary for Transport and Public Works No. 20/2006 –.

This decision has ultimately led to entirely unreasonable, disastrous and unfair economic and social practical results – which were certainly not the goals pursued by the legislator when the New Land Law was discussed and approved –, thereby sentencing to death the validity and effectiveness of legal instruments such as contracts of developers with promissory buyers by the thousands, as well as the concessionaire’s trust alongside with that of the investors and the general public, ultimately jeopardizing a massive volume of legal transactions.

2. How has the New Land Law been applied?

From this viewpoint, both the Administration and the Macau Courts have consistently made it clear that once the provisional concession period has expired without it becoming definitive – i.e., without developing the land within the (development) period set out in the contract – the concession shall be deemed expired ipso facto, simply due to a mere passing of time and regardless of whether or not the land was effectively used by the concessionaire, and whether or not the concessionaire was at fault for the non-development of the land.

This claim is sustained by the notion that in such cases there would be no other alternative for the Chief Executive except to declare the expiration of the concession leaseholds, and therefore honour the principle of administrative legality and legal security and certainty.

In truth, the aforementioned understanding is based on a possible interpretation / application of the New Land Law, but it is certainly not what this legislation had initially intended for, and neither does it comply with the Macau legal system as a whole. Also, the said interpretation is seemingly inconsistent with the land concession leasehold regime, and it does not benefit the enforcement of the principles on which such interpretation is supposedly based, namely the principle of legality and the principle of security and certainty of the legal trade.

3. There are other interpretations

Following a close scrutiny of the New Land Law’s legal framework it is not entirely difficult to find other viable and more suitable interpretations which, although they may follow a different dogmatic approach to the matter, are however more beneficial, revealing a more harmonious outcome and leading to a better aligned and overall fairer legal system. This might allow for the period of the concession leaseholds to be legally and legitimately extended (and not renewed), suspended, and more importantly, for the provisional concession to be converted into a definitive concession.

Let’s have a closer look at these alternative interpretations:

  1. The concession leasehold as a surface right

    The scope of the concession leasehold is first and foremost to grant powers to build, transform or maintain the works for the purposes set forth in the respective title (vide article 42 of the New Land Law).

    Granting the concessionaire powers to maintain the works on the concessioned land, which were absent from previous laws, which only mentioned powers to build and transform, is symptomatic of the New Land Law’s acknowledgement of the confluence of the substance of the right arising from the concession leasehold and the surface right.

    On the other hand, the concession itself is governed by contract and additionally by civil law, according to article 41 of the New Land Law.

    With regard to the expiration period, it is clear from the surface right’s regime set out in the Civil Code (vide paragraph 3 of Article 1427 of the Civil Code) that the termination of the surface right by way of lack of use after 7 years is subject to the rules on the suspension and interruption of the limitation period.

    Therefore, in cases where the Government has deliberately prevented the concessionaire to develop the land within the stipulated term, there are grounds to suspend the time period given to exercise the right, pursuant to paragraph 2 of art. 313 of the Civil Code.

  2. Expiration as a punitive sanction

    On the other hand, should it be chosen to dismiss any discussion around the nature of the provisional concession period (expiration / limitation period), the fact that should also be considered is that (and contrary to the current understanding of the Macau Courts) the New Land Law prescribes an expiration regime which itself is a true punitive expiration, as in fact already did the Old Land Law. In this sense, and to the extent that the expiration of the provisional concession is associated with the failure to carry out the development, it always bears a punitive intent, aiming to sanction the concessionaire who failed to develop the land due to his inertia or negligence.

    Consequently, when expiration is invoked due to failure to comply with obligation to develop the land within the concession’s set term, the following circumstances must be verified simultaneously:

    1. expiration of the concession leasehold period;
    2. whether the land was in fact developed or not;
    3. failure to carry out the land development; and
    4. whether such failure was due to a breach of the contract’s development clauses attributable to the concessionaire;

    Therefore, only in case all of the abovementioned conditions are met will the declaration of expiration be legitimate.

  3. The condition thesis

    From a different perspective, it should also be noted that the land development is itself a condition for converting the provisional land concession into a definitive concession.

    As such, under paragraph 2, article 268 of the Civil Code, such condition is considered to have been met should the land development be barred, in breach of good faith, by the obligee.

    Now, let’s assume that the lack of development is due to the Government’s decision to suspend works and carry out an assessment of development projects aimed at approving a new urban plan, and such approval is pending for over a decade. In this case, the Government is exclusively liable for the fact that the building was not constructed and the land not developed, which was a resolutory condition of the concession’s provisional nature and a suspensive condition of its definitiveness.

    Therefore, in this case one can argue that the aforementioned condition was not fulfilled due to fault of the obligee and should be considered applicable by analogical application paragraph 2 of article 268 of the Civil Code.

  4. Extension / Suspension

    Lastly, articles 103 and 104 of the New Land Law provide that the term for development can be suspended or extended in the event it is not attributable to the concessionaire the failure to carry out the necessary steps in the development within the indicated term, and the Chief Executive deems the reasons invoked admissible.

    In light of such circumstance, should it be assumed that the referred suspension or extension is included within the time-limit for the concession period?

    The New Land Law provides no indication to the contrary. What would happen if under the abovementioned provisions the development period was suspended for such an extended period of time that it would inevitably cause the concession period itself to be exceeded? Would the provisions set out in article 48 of the New Land Law be applicable unconditionally? It does not seem a judicious understanding.

    In fact, the extension of the leasehold period does not consist on a renewal (the extension is not automatic and is only granted for a strictly necessary period of time), and the fact that the New Land Law states that the concession period cannot exceed the duration of 25 years does not necessarily mean that the land concession overall duration might not exceed the said 25 years, suspensions included. Should there in fact be a suspension, the leasehold period reaches a standstill and therefore the same is not increased.

4. Conclusion

Although different legal solutions and interpretations consistent with the New Land Law’s ratio and sentiment of justice do exist, it is by far convenient that a matter of such importance as the one under scrutiny is carefully analysed and made uncontentious for the sake of security and stability of the legal trade in Macau. This may only be achieved by manner of legislative intervention, which is in fact badly needed.

32nd Birthday of Manuela Antonio Law Firm

It is with great pride that we commemorate yet another birthday here at our law office, crossing milestone after milestone in our already rich history. On the 28th of this month our firm completes 32 years of its establishment. We take this occasion to thank the support of our excellent team of collaborators, and indeed of our loyal clients for their priceless aid in our success.

As usual, our law office stands tall amongst the professional leads of the time, with countless achievements and accomplishments along the years, including this year which proved to be exceptionally productive.

In fact, this year has surpassed the impressive figure of more than 15000 clients.

Also, we won numerous awards, among which the prestigious International Financial Law Review’s market leader award for the principal of our firm Manuela Antonio, as well as the Chambers and Partners top tier law firms.

On the other hand, and looking towards the future generation of lawyers, our firm has also grown larger on the inside, adding three new trainees to our already capable team of counsels.

As always, we plan on keeping our professional relationship with our clients thriving, and to continue providing the excellence that throughout the years has constantly accompanied the name of our law office. Another year, another shower of success!

Happy birthday to us!

Macau Perspective over Financial Derivatives

Derivatives are financial instruments that result from fixed-term contracts whose value is ascertained by reference to a specific underlying asset or group of assets that play a very important role in the financial markets.

Other than its speculative purpose, derivatives are nowadays a useful risk management tool at disposal of financial institutions to cover exposures to important risks inherent to market variations like interest rates, currencies, index, etc.

Although derivatives can be traded on organized market places, they are predominantly traded over-the-counter (OTC). According to figures disclosed by the Bank for International Settlements, in the end of 2017 the global market for OTC derivatives amounted to more than 531.91 trillion US Dollars, and derivatives traded on organised markets amounted to 33.1 trillion US Dollars.

When trading in a OTC market, the counterparties commonly agree to govern their arrangements by standard terms and conditions (Master Agreement) drafted by worldwide recognized expert organizations like ISDA – International Swaps and Derivatives Organization.

However, when negotiating OTC Master Agreements across different jurisdictions, lawyers and legal counsels are frequently concerned about the validity and enforceability of the netting and close out netting provisions laid down in such contractual standards.

Although the Macau Legal System does not contemplate a definition of derivatives, it however recognizes this kind of financial instrument under the paragraphs e) of article 17.º of the Decree-Law no. 32/93/M of 5 July 1993 (Macau Financial System Law) and of paragraph c) of article 12.º of the Decree-Law no. 25/99/M of 28 June 1999 (Asset Management Companies Law) as regards to the activities that either Banks and Asset Management Companies are allowed to perform.

As in many other jurisdictions, Macau insolvency rules are deemed to be part of public policy and so, although the Parties are allowed to validly choose a foreign law to govern their Master Agreement, in the insolvency scenario the Macau Law shall prevail.

In such case, the enforceability of netting and close out netting provisions foreseen in OTC´S Master Agreements becomes quite problematic. Indeed, provided that the status of insolvent is declared by Macau Courts, it will be impossible to proceed with any set-off with regard to the credits / liabilities of the insolvent party, which shall be frozen and under control of Court-appointed administrator. As such, in our jurisdiction the set-off provisions will only operate, in principle, until the start of any insolvency proceedings against a Macau Counterparty.

In conclusion, Macau is not, for the time being, a “friendly jurisdiction” to netting provisions, although pursuant to the n.º 4 of the article 6.º of the Macau Financial System Law, the local regulator (Monetary Authority of Macau – AMCM) has the authority to enact regulatory requirements towards the establishment of automatic compensation mechanisms. Legislation clarity is therefore a must-do task that the local authorities shall have to embrace in order to create a proper environment in the business development of derivative instruments in Macau.

Weapons and Ammunition Regulation

Two weeks ago, tragedy struck the United States of America after a gunman rampaged through a high school in Parkland Florida killing 17 people. The occasion quickly gave rise to a yet another nationwide discussion over gun control, regarding whether it is appropriate to implement rules limiting the access and ownership of guns – and the respective type of weaponry.

In the context of this discussion, we have decided this month to take a glimpse at our laws concerning gun ownership and usage. In fact, gun control regulations have been in place for a long time in the Macau SAR. At least since 1973, since the approval of the first Weapons and Ammunition Regulation, the possession of any firearm or other object normally used by security forces, among others, is regarded as a weapon and requires a license issued by the Public Security Police.

After 1973, two other pieces of legislation were further approved, namely Decree-Law no. 11/93/M – which reviewed the sanctions for the possession, usage and bearing of weapons – and Decree no. 139/SAS/99 – setting annual fees to be charged for issuing or renewing licenses for the usage and possession of defense and competition weapons and for issuing authorizations for possession of collection items.

The said legislative diploma no. 21/73, the Weapons and Ammunition Regulation, then underwent a major revision, in order to bring it in line with the current times, namely given the considerable technical and technological evolution of weaponry in general. The result of such review was Decree-Law no. 77/99/M, which was approved and published in the Official Gazette on 8 November and thus entering into force 30 days later in the same year, having revoked the majority of the previous legislation.

The legislator began by classifying the different existing weapons, separating self-defense weapons from competition, ornamental and collection weapons, and also defining forbidden weapons and ammunitions

In Macau, the license for usage and possession of a defense weapon may be granted to a common citizen provided that the necessary legal requirements are observed. Accordingly, these defense weapons consist of pistols and revolvers of a caliber not exceeding 7,65 mm (•32) and having a barrel length not exceeding 10 cm. It should be stressed that this is no ordinary license, and the administration holds a high degree of discretionary power in the process and under substantial criteria, which results in the fact that only a few are able to meet the administration’s standards for holding a gun. The conditions set by law to obtain a license are as follow:

  1. to be of age;
  2. to show adequate moral and civil creditworthiness;
  3. to show the need to carry a weapon for personal or family-related defense, due to special life situations or the risk inherent to carrying out a given professional activity;
  4. to have basic weapon handling ability.

On the other hand, certain political and government official entities benefit from a special exemption which entitles them to the possession, usage and bearing of any of the aforementioned defense weapons without having to apply for a license. They are, namely:

  1. The Chief Executive and the President of the Legislative Assembly;
  2. Ministers or equivalent entities;
  3. Members of the Legislative Assembly;
  4. Judges and Prosecutors;
  5. Other entities exceptionally authorized by the Chief Executive.

Other important aspects are also regulated in this diploma such as internal and external weapons and ammunitions sale, other registrations, exchange of weapons between license holders, among others.

As far as sanctions are concerned, the regime prescribes a wide range of fines applicable up to the amount of 200,000.00 patacas, without prejudice to criminal liability in the more serious offences.

We would like to finish by highlighting that our system does not provide for a constitutional right to bear arms – unlike in the United States of America, in which the Second Amendment to the United States Constitution protects the right of the people to keep and bear arms since 1791 – and overall, the access to firearms is, in the Macau SAR, as aforementioned, quite restricted.

Amended tenancy regime comes into force

As you might recall from our previous article back in October 2017, the Macau SAR Legislative Assembly approved on 21 August 2017 the amendment of the tenancy regime provided in the Macau SAR Civil Code, setting it to come into force within 180 days after its publication in the Macau Official Gazette. In other words, the new tenancy regime will come into effect on 21 February 2018.

The said legislation altered articles 1015, 1032 and 1038 of the Macau Civil Code and established an Arbitration Center for Tenancy Disputes. In this last regard, it should be noted that the implementation of the said arbitration center is referred to the Chief Executive, which has yet to issue any ordinance in that regard. In any case, the law hints that the arbitration will be voluntary and thus the parties will still be able to resort to the courts directly.

As we previously stated, the major changes to the tenancy regime concern, on the one hand, the need for the parties’ signatures on the tenancy agreement to be notarized and, on the other hand, that the unilateral termination by the landlord (without cause attributable to the tenant) can only be effected after a three-year tenancy term.

Accordingly, landlords might consider including additional safeguards in the tenancy agreements to alleviate the said restrictive provisions that were imposed with the new law, while tenants should be aware of the additional protection granted with the amendments to the regime.

As usual, we remain fully available to provide any clarification as deemed necessary.
We also take the opportunity to inform that during the Chinese New Year, we will be closing slightly earlier on the 15th of February and closed all day during the 16th and 19th.

Until next time!

Macau, 28 January 2018

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* Sai Van Lake – recorded by a hobbyist photographer lawyer of the office

Animal Protection Law

Here at Manuela Antonio – Lawyers and Notaries, aside from our utmost commitment to our clients, we care deeply for the Macau SAR community with whom we have an established connection which dates back to over three decades. In fact, we have not only seen the ups and downs of the community but also celebrated its victories whilst sharing the not so cheerful moments that it had to endure.

Although scarcely in the past, animal welfare is an ever-increasing concern of our citizens. In fact, a new wave of trendy global concerns of this nature has seemingly sensitized the general public. The past recent years have brought to light a few animal-friendly institutions such as ANIMA (2003) and the Macau Animal Rescue Association (2009), seeking to turn the region into a role model community in terms of awareness and prevention of neglectfulness and cruelty to animals. And unavoidably reaching the governmental entities as well. Under the authority of the Civic and Municipal Affairs Bureau (“IACM”), the subunit “Division of Animal Control and Inspection” was created in 2002, seeking to safeguard the public health, preventing the spread and outbreak of animal-borne diseases, and raising the public’s awareness of their civic responsibilities in raising pets.

Moreover, the trend also developed a sense of growing awareness in the local legislator, having meanwhile created important general regulations tackling the matter such as the Administrative Regulation no. 28/2004 – regarding the Approval of the General Regulations Governing Public Places. The law sets requirements in terms of cleanliness, personal hygiene and public health and protecting natural environment as well as the balance of a variety of habitats, including that of domestic pets. Also, the said regulation was followed by two executive orders stating a list of contraventions and other relevant additional provisions – Chief Executive Orders no. 106/2005 and 432/2005).

While the said regulations did not address specifically the issue of animal protection, it somewhat paved the way for Law no. 4/2016, also known as the Animal Protection Law. This legislative piece, which was published in the Macau Official Gazette on July 25 and came into force on September 1st, 2016, among other provisions, prohibits and punishes cruelty and violence towards animals, especially actions that may subject the same to pain and suffering.

Accordingly, animal owners are in general prohibited from abandoning their pets and must provide food, drinking water, sufficient space for free movement, proper living conditions, and necessary preventive and medical care to animals. One of the most controversial issues that arose during the legislative debates on the law was the mandatory requirement of muzzles in public areas (including public spaces in buildings) for dogs that weigh 23 kilograms or more, or those considered dangerous by the IACM (in alternative to a muzzle, it is possible to opt for a cone collar). It should be noted, however, that dog owners may apply for a license to exempt certain dogs from such requirement.

In addition, dogs must be leashed or put in carriers when in public areas. Also, all dogs living in construction sites and junkyards must be neutered and owners or the people responsible for those sites must cooperate with government authorities when the latter perform their relevant duties in that regard. The law further enlists which animals are not allowed to be used for human consumption and expressly provides for a prohibition of the instigation of animals to fight. Animal usage for scientific research is also an important aspect regulated by the Animal Protection Law, as well as the mandatory registration of animals used in competitions.

In terms of liability, perpetrators may face criminal charges, punishable by a one-year term of imprisonment, as well as administrative sanctions of up to MOP100,000 in fines and other additional penalties such as depriving the owner of the animal’s care, the prohibition on the acquisition or breeding of animals for a period of up to 2 years, the disqualification from the practice of commercial activities linked to any kind of animals for a period up to 2 years, and the temporary closure of a given shop or business for a period between 1 month and 1 year.

Subsequently and following the enactment of the Animal Protection Law, other animal-friendly legislation has been approved: Chief Executive’s Notice no. 355/2016, regarding the prohibition of obtaining, raising, breeding or importing animals of specific species and Law no. 2/2017, which seeks to enforce in the Macau SAR the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

As concerned citizens and seeking to fulfill our referred commitment as members of this great community, our office is proud to have recently made a donation to ANIMA – we had the honor of having been received by the organization’s President and delivered the cheque personally.

Until next time!

Macau, 28 December 2017

Manuela António Lawyers and Notaries turns 31

Today, 28 of November, is a very special day for our law firm as we turn 31!

Given another successful year and due to our Corporate Social Responsibility policies, we decided this year to make a donation to the Society for the Protection of Animals (Anima) in order to help man’s best friends!

We also take this opportunity to send a special thanks to Anima and to Dr. Albano Martins for receiving us and for all of the excellent work being done!

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Law no. 13/2017 – Amendment of the Macau Civil Code tenancy regime

One of the consequences of the astounding growth of the Macau Special Administrative Region of the People’s Republic of China after the end of the gaming monopoly has been the asset value increase in the real estate market. In this overnight success that transformed what was formerly a fisherman’s bay into the largest gross income casino industry in the world, the Macau SAR also achieves the feat of having the most densely populated city in the world – more than 20,000 people per square kilometer.

It is said that the real estate market in the Macau SAR is and has been for the past decade slightly unbalanced in the sense that there is excessive demand for a reduced supply, having led to the referred increase of the transaction prices and, consequently, in the rents charged. As a result, the legislator even considered, based on the demands of a group of citizens, implementing a rent control mechanism, later dropped as it would constitute an excessive intervention of the Government in the rental private market.

Taking into account the herculean challenge of establishing an equilibrium between keeping the Government away from intervening in the market (a cornerstone of the Macau SAR economy), and ensuring a minimum level of protection to the lessee (deemed the weaker party in a lease relationship), the Macau SAR Legislative Assembly amended a few provisions of the Civil Code tenency regime, as per the new bill promulgated on 21 August 2017 and which will come into force within 180 days after its publication in the Macau Official Gazette, meaning 21 February 2018:

(i) the execution of the tenancy agreements should be subject to notarization (meaning the signatures therein must be certified by a Macau SAR notary, (ii) the period during which the landlord cannot exercise the right to prevent the renewal of the lease agreement is extended from two years to three years, (iii) the landlord is allowed to proceed directly to enforcement proceedings in case the signatures of the parties in a tenancy termination agreement were notarized; and (iv) an Arbitration Center is established to resolve tenancy disputes (which mode of operation and structure will be detailed in a dispatch from the Macau SAR Chief Executive).

As always, given our long experience in real estate transactions and lease agreements, our team remains ready and willing to advise in any specific matter in this regard.

Macau, 28 October 2017