Legal Updates for January 2021
Freezing Injunction in Aid of Foreign Court Proceedings: How Does Singapore's Approach Fare?
Freezing injunctions in aid of foreign proceedings have seen growing importance in cross-border fraud and asset tracing litigation, especially as new payment technologies and the increased adoption of internet and mobile banking have made it easier and faster for ill-gotten gains to be dissipated across jurisdictions.
This article examines Singapore's approach to the grant of freezing injunctions in aid of foreign proceedings, as situated against the range of solutions which other commonwealth jurisdictions have developed to keep pace with the rise in transnational fraud, including the British Virgin Islands, which in 2021 became the latest jurisdiction to enact legislation empowering its courts to grant such freezing injunctions.
Multimodal Transport Bill: Standardising Framework for Multimodal Transport Operators throughout ASEAN
On 5 January 2021, the Multimodal Transport Bill ("Bill") was passed by the Parliament of Singapore. The Bill facilitates Singapore's anticipated ratification of the ASEAN Framework Agreement on Multimodal Transport ("Agreement"), which should take place later this year.
By way of background, the Agreement was signed by Singapore on 17 November 2005, and will provide a single, unified framework for the multimodal transport of goods within the Association of Southeast Asian Nations ("ASEAN") once it has been ratified by all ASEAN member countries. This will facilitate market access for Singapore logistics operators to operate in other ASEAN member countries under a set of regionally aligned standards.
The Bill will apply to the carriage of goods via more than one transport mode, whether through air, land or sea. These goods are carried by a multimodal transport operator registered with the Competent National Body ("CNB") established in each ASEAN member state, under a single multimodal transport contract ("MT contract") where the origin or destination of the goods is in an ASEAN member country.
The Bill, which will come into effect on a date yet to be specified, covers five key areas:
In this Update, we set out the overarching framework of the Bill and examine its implications in the sectors of shipping and trade.
- Registration with the Singapore CNB;
- Issuance of multimodal transport documents ("MTDs");
- Liabilities of multimodal transport operators ("MTOs");
- Duties and liabilities of consignors; and
- Miscellaneous matters.
Second Public Consultation on Converged Competition Code for the Media and Telecommunication Markets
As growth in media and telecommunication markets evolve, the Infocomm Media Development Authority ("IMDA") conducted a first consultation in February 2019 to obtain the public's views on key trends identified by IMDA in the media and telecommunication markets which have been separately governed by two codes, the Media Market Conduct Code and the Telecom Competition Code respectively. One of the key proposals in the first consultation was to develop a harmonised competition code for the telecommunication and media markets.
Taking into account feedback received from the first consultation, on 5 January 2021, IMDA published a second consultation paper on the draft harmonised competition code. This second consultation closes at 12pm, 2 March 2021.
In this Update, we provide a summary of IMDA's position on the feedback received in the first consultation and briefly discuss noteworthy areas of IMDA’s proposed harmonised competition code.
Admiralty Actions: Service of Warrants of Arrest and Writs on Agent; Dispensation of Security Guard
The maritime and shipping industry has had to adapt to ensure safe and responsible practices amidst the COVID-19 pandemic. In keeping with these efforts, the Supreme Court of Singapore has acknowledged the concerns involved in the requirement of in-person service of documents against a ship, and has addressed them by introducing temporary alternative methods of service. From 22 January 2021 and until further notice, service of Warrants of Arrest or Writs in an in rem action against a ship, freight or cargo may be effected by leaving or transmitting the same to the agent of the ship. In the same vein, security guards are also not required to be deployed on board an arrested ship with effect from 15 January 2021 and until further notice.
In this Update, we provide a summary of the requirements of the newly-introduced alternative methods of service and practical steps for complying with these requirements, as well as a discussion of the effect of the dispensation of security guards for ship arrests.
SGX Enhances Rules on Appointment of Auditors and Property Valuation
On 12 January 2021, the Singapore Exchange Regulation announced key changes to the SGX-ST Mainboard Rules and Catalist Rules (collectively, the "Listing Rules"). These changes enhance requirements concerning the appointment of auditors by certain listed issuers and property valuation matters.
The amended Listing Rules introduce a new requirement for primary listed issuers on SGX-ST to appoint an auditor registered with the Accounting and Corporate Regulatory Authority to conduct their statutory audits and empower SGX to require the appointment of a second auditor under certain circumstances. The amended Listing Rules also impose minimum qualification criteria for property valuers and prescribed standards for property valuation reporting.
The amendments to the Listing Rules will be effective from 12 February 2021.
This Update provides an overview of the main changes to the Listing Rules, highlights salient requirements and specific timelines for the implementation of certain requirements.
Court of Appeal Determines When a Payment Claim Can Be Served After Termination of a Contract
The Building and Construction Industry Security of Payment Act provides a statutory mechanism through which contractors may serve payment claims on their employers. In the decision of Orion-One Residential Pte Ltd v Dong Cheng Construction Pte Ltd  SGCA 121, the Singapore Court of Appeal considered the circumstances in which a payment claim can be validly served even after the termination of the underlying contract between the contractor and employer.
The Court of Appeal held that the proper approach is to first consider the terms of the contract, and whether the contract entitles the contractor to serve progress payment claims after termination of the contractor’s employment, rejecting the submission that the statutory entitlement to payment will automatically survive termination. This Update provides a summary of the key points of the Court of Appeal's decision.
UK-Singapore Free Trade Agreement Effective From 1 January 2021: Ensuring Trade Continuity Post-Brexit
On 1 January 2021, the UK-Singapore Free Trade Agreement ("UKSFTA") took effect via provisional application, enabling the United Kingdom ("UK") and Singapore to apply treaty commitments under the UKSFTA on a provisional basis until it is ratified by both countries and enters into force. The UKSFTA aims to ensure trade continuity between Singapore and UK following the Brexit Transition period which expired on 31 December 2020, which had meant that the existing EU-Singapore Free Trade Agreement ("EUSFTA") stopped applying to UK-Singapore trade. The UKSFTA allows companies to continue enjoying the same benefits under the EUSFTA when trading between Singapore and UK. This was announced in the Ministry of Trade and Industry Singapore's ("MTI") press release dated 31 December 2020.
Based on the Joint Ministerial Statement by Singapore and UK, UK is amongst Singapore's top three European trading partners and is its top investment destination in Europe. On the other hand, Singapore is UK's largest trade and investment partner from the Association of Southeast Asian Nations ("ASEAN"). The UKSFTA covers more than S$30.5 billion (approximately £17 billion) of bilateral trade in goods and services. Given the existing trade volume and synergies between the two countries, we encourage you to review the UKSFTA closely to continue to take advantage of benefits now provided under the UKSFTA that were provided under the EUSFTA, and new benefits that the UKSFTA offers.
This Update hence highlights the key benefits under the UKSFTA, which include, amongst others, elimination of tariff for goods trade, liberal and flexible rules of origin ("ROO"), EU & ASEAN cumulation, reduction of technical and non-tariff barriers, enhanced market access to the services sector, more opportunities in government procurement, and enhanced intellectual property rights.
Rajah & Tann Contributes to the Asia-Pacific Arbitration Review 2022 – Chapters on (i) The Rise of Arbitration in the Asia-Pacific; and (ii) Maintaining the Policy of Minimising Curial Intervention in Malaysia
Rajah & Tann Singapore’s leading International Arbitration Partners have contributed two chapters in the Asia-Pacific Arbitration Review 2022 , a special report published by the Global Arbitration Review. The Asia-Pacific Arbitration Review 2022 (available here) contains insight and thought leadership inspired by recent events from 35 pre-eminent practitioners.
Our International Arbitration Partners Andre Yeap, S.C., Kelvin Poon and Alessa Pang, authored the chapter on “The Rise of Arbitration in the Asia Pacific” which examines recent developments in Asia and ASEAN and deduces that the trend in these regions is one that generally continues to converge in favour of arbitration. The full chapter can be read here.
Authored by our International Arbitration Partners Andre Yeap, S.C. and Avinash Pradhan, the chapter on “Maintaining the Policy of Minimising Curial Intervention in Malaysia” explains the legal framework for arbitration in Malaysia, a coherent modern framework in line with international norms and best practices. In addition, recent decisions of the Malaysian courts underscore the fact that the Malaysian judiciary is now distinctly pro-arbitration, paving the way for Malaysia to tap into the growth of international arbitration in the region. The full chapter can be read here. The full Asia-Pacific Arbitration Review 2022 is available here.
Our International Arbitration Practice & Arbitration Asia website
In conjunction with the growth of international arbitration in the region, our International Arbitration Practice has created Arbitration Asia, a one-stop arbitration website covering the latest legal developments, case alerts, market updates, and events across Rajah & Tann Asia's geographical footprint in Cambodia, China, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam.
Our Arbitration Asia website will be launched on 18 August 2021. Register here. for the launch event of Arbitration Asia on 18 August 2021 to find out more.
Find out more about our International Arbitration Practice here.
Rajah & Tann Asia Regional Competition Report 2020
2020 has been an interesting year to say the least, with the COVID-19 outbreak changing the way we live, learn, work and play. One notable result has been the hastening of the shift towards e-commerce and platforms, a trend that many of the competition regulators in the region have picked up on and responded to, either by conducting market studies, issuing guidelines or conducting investigations in this area. Competition enforcement and activity by the competition regulators in the region also remained high in the other traditional areas, such as merger review, cartel enforcement and investigations.
Many of your businesses would be impacted by these competition developments, and it is critical for businesses to keep abreast of these legislative and enforcement updates. Hence, we thought that a wrap of the Year in a 2020 Report touching on the countries that we have market leading presence in, i.e. across Southeast Asia, would lend a personal touch to better understanding the climate in each of the countries. We hope that our 2020 Report here is helpful to you, and we would be happy to discuss any of these updates in greater detail with you.
Proposed Changes to Electronic Transactions Act to Allow Digitalisation of Trade Documents and Other Key Items
On 4 January 2021, the Electronic Transactions (Amendment) Bill 2021 ("Amendment Bill") had its first reading in Parliament. The Amendment Bill seeks to amend the Electronic Transactions Act to adopt the UNCITRAL Model Law on Electronic Transferable Records. This would allow the use of digital documentation (such as bills of lading) with international ports and reduce the reliance on hard copy trade documents.
The Amendment Bill is part of a wider and ongoing initiative by the Government to review and support the digitalisation of various types of instruments or transactions. In this Update, we take a look at the key provisions introduced in the Amendment Bill, as well as the changes which may be subsequently implemented following further framework enhancements.
Singapore High Court Issues Significant Judgment on Freezing Injunctions in Cross-Border Insolvency and Asset Recovery Claim
In Allenger, Shiona (Trustee-in-bankruptcy of the Estate of Pelletier, Richard Paul Joseph) v Pelletier, Olga and another  SGHC 279, Rajah and Tann Singapore's Fraud, Asset Recovery and Investigations team led by partners Danny Ong and Yam Wern-Jhien, assisted by Bethel Chan and Chen Lixin, prevailed in a significant decision examining principles governing the grant of freezing injunctions against foreign defendants in the context of a cross-border insolvency and asset recovery claim.
The team successfully argued that the Singapore High Court has subject-matter jurisdiction to adjudicate claims based on foreign avoidance laws, and that the foreign defendants had submitted to the Singapore court's jurisdiction by failing to promptly raise a jurisdictional challenge and taking various steps in the proceedings that were inconsistent with an intention to challenge the Singapore court's jurisdiction.
COVID-19 (Temporary Measures) Act: Re-Align Framework Available from 15 January 2021 and Other Additional Reliefs for Built Environment Sector
The COVID-19 (Temporary Measures) Act ("Act") has introduced a series of legal reliefs and mechanisms for businesses and individuals to aid them in managing the impact of the COVID-19 pandemic. This Update highlights the key features of the latest temporary reliefs:
- The Re-Align Framework, which facilitates the renegotiation of specified contracts for eligible businesses which are significantly affected by the COVID-19 pandemic, is set to be available from 15 January 2021 to 26 February 2021;
- Certain additional reliefs for the Built Environment sector have come into operation on 30 November 2020. These include a universal extension of time to the completion date for eligible construction contracts under Part 8A of the Act, and co-sharing of qualifying costs arising from COVID-19 related project delays for eligible construction contracts under Part 8B of the Act; and
- The regulations relating to the property tax rebate have been amended to take into account the Rental Relief Framework via the COVID-19 (Temporary Measures) (Transfer of Benefit of Property Tax Remission) (Amendment) Regulations 2020, which was published on 18 December 2020.