Legal Updates for September 2022Insurance Claims for Marine Collision: Court Examines Constructive Total Loss, Responsibilities of the Insured, and Notification
In PT Adidaya Energy Mandiri v MS First Capital Insurance Pte Ltd [2022] SGHC(I) 14, the Singapore International Commercial Court ("SICC") was faced with a claim for constructive total loss ("CTL") under a marine insurance policy arising from collision damage. The SICC held that the insurer was not liable to the insured, and considered a number of issues relating to the insurance coverage for the claim, including the proving of CTL; late notice of abandonment; the responsibilities of the insured under certain warranties provided in the policy; and compliance with the policy's claim notification requirements.
The insurer was successfully represented by Jainil Bhandari, Aleksandar Georgiev, Kristin Ng and Nathaniel Loh of Rajah & Tann Singapore LLP.
In this Update, we provide a summary of the key points of the judgment and the SICC's consideration of the issues above.
SICC's Jurisdiction over Cross-Border Restructuring and Insolvency Matters
Singapore has been strengthening its position as a key nodal jurisdiction for cross-border restructuring and insolvency. This includes the establishment of the Singapore International Commercial Court ("SICC") to handle international commercial disputes, the adoption of the UNCITRAL Model Law on Cross-Border Insolvency, and the introduction of the Insolvency, Restructuring and Dissolution Act.
This process continues with amendments to the laws to provide that the SICC has jurisdiction over international restructuring and insolvency matters. These amendments come into effect on 1 October 2022. This development is expected to further enhance Singapore's capabilities and attractiveness as a forum of choice for cross-border insolvency. In this Update, we highlight the key amendments, and how they will affect the framework for cross-border restructuring and insolvency in Singapore.
Launch of the Code of Practice on Chief Executives' and Board of Directors' Workplace Safety and Health Duties
The Code of Practice on Chief Executives' and Board of Directors' Workplace Safety and Health Duties ("COP") was launched on 19 September 2022, and is expected to be gazetted as an Approved COP by October 2022. Once gazetted, the COP will be relevant in the event of offences under the Workplace Safety and Health Act 2006, as the Courts can consider compliance to the COP in determining the liability of the organisation and its management team.
The COP sets out the principles that Company Directors should observe in improving workplace safety and health ("WSH") performance and management, as well as the practical measures that should be taken. It should be noted that WSH includes both physical health and mental well-being, and organisations should ensure that both aspects are addressed in their WSH policies. In this Update, we highlight the key principles and measures in the COP, and the effect of the COP being gazetted.
Business Trusts (Amendment) Bill Introduced to Align with Regulatory Regimes for Companies and REITs
On 12 September 2022, the Business Trusts (Amendment) Bill ("Bill") was tabled in Parliament for First Reading. The Bill seeks to amend the Business Trusts Act 2004 ("BTA") which governs the registration and regulation of business trusts ("BTs"). Introduced in 2004, a BT is a hybrid structure embodying the features of both a company and a trust. A key advantage of a BT is the ability to pay dividends to unitholders out of its cash profits, unlike a company which may only do so out of accounting profits. Given a BT's similarities with a company, many provisions of the BTA are based on the Companies Act 1967 ("CA"). From the time the BTA came into effect, there have been various amendments to the CA, as well as revisions to the real estate investment trusts ("REITs") regime.
In view thereof, the Monetary Authority of Singapore conducted a public consultation in November 2021 concerning proposed amendments to the BTA, mainly to align it with 2014 and 2017 amendments to the CA pursuant to the Companies (Amendment) Acts, "CAA", as well as the regulatory regime for REITs. The amendments to the BTA also seek to streamline and clarify regulatory requirements. The proposed Bill received general support from respondents.
In this Update, we outline certain key amendments to the BTA set out in the Bill.
Clarifying the Right to Private Action under the Personal Data Protection Act
The Personal Data Protection Act ("PDPA") sets out the duties of businesses and organisations regarding personal data. Breaches of the PDPA open up the offending organisation and employees not only to public enforcement action, but also to private civil action by an individual who has suffered loss or damage from the breach. In Reed, Michael v Bellingham, Alex [2022] SGCA 60, the Singapore Court of Appeal provided some much-anticipated clarification on what constitutes "loss or damage", and thus when an individual is entitled to initiate civil proceedings under the PDPA. Notably, the Court held that emotional distress falls within the scope of "loss or damage" under the PDPA.
The Court’s decision provides important guidance for organisations and individuals that manage or deal with personal data in the course of operations, shedding light on when they may be exposed to private action for PDPA breaches. This Update provides a summary of the decision and highlights its implications on such organisations and individuals.
NCCS Seeks Feedback on Raising Singapore's Climate Ambition to Achieve Net Zero by 2050
Singapore announced in Budget 2022 that it intends to significantly raise its climate ambition to achieve net zero by 2050. Raising our climate ambition requires a concerted effort from the entire nation and has wide-ranging impact. Against this background, the National Climate Change Secretariat ("NCCS"), Strategy Group, Prime Minister’s Office (PMO-SG) is conducting a public consultation exercise from 5 September 2022 to 26 September 2022 to obtain comments on raising Singapore's climate ambition to achieve net zero by 2050 and how Singapore can attain this goal. Views garnered from the public consultation will be taken into account when Singapore formally revises its LEDS and NDC before the end of 2022.
In the public consultation, NCCS seeks views on: (i) whether the timeline to achieve net zero by 2050 is suitable; (ii) whether Singapore's current pledge to "peak emissions at 65 MtCO2e around 2030" should be enhanced; and (iii) what the stakeholders in Singapore (including the Government, businesses and industries) can do to support Singapore's low-carbon transition.
In this Update, we provide a summary of the key discussion points in the consultation paper and highlight the practical impact of these strategies on businesses.
PDPC Launches Guide on Personal Data Protection Considerations for Blockchain Design
The Personal Data Protection Commission ("PDPC") recently launched the Guide on Personal Data Protection Considerations for Blockchain Design ("Guide") to help organisations with blockchain adoption.
The Guide provides principles and considerations on how to comply with the Personal Data Protection Act 2012 ("PDPA") when deploying blockchain applications that process personal data. It also provides guidance on data protection by design (DPbD) considerations for organisations to implement more accountable management of customers' personal data. Specifically, it looks at:
- Considerations and recommendations for personal data on permissionless blockchain networks;
- Considerations and recommendations for personal data on permissioned blockchain networks; and
- Using off-chain approaches to further mitigate personal data protection risks on both permissionless and permissioned networks.
In its Annex, it also covers developing a data protection management programme (DPMP) for blockchain operators.
The Guide will be relevant to organisations that:
- Govern, configure and operate blockchain networks and consortia (i.e. blockchain operators);
- Design, deploy and maintain applications on blockchain networks (i.e. application service providers); and
- Use blockchain applications (i.e. participating organisations).
In this Update, we elaborate on the key points of the Guide. Although largely focused on blockchain technology, some of the Guide's principles and recommendations may be applicable to other Distributed Ledger Technologies (DLTs) as well.
A Shift to Greater Focus on Conglomerate Effects in Singapore
In the past two years, the Competition and Consumer Commission of Singapore has been increasingly more focused on potential competition concerns arising out of conglomerate mergers compared to before. This shift is important to transaction parties filing in Singapore as greater thought may be required at the outset to identify potential conglomerate concerns that could arise, and to canvass arguments to avoid or defend against such concerns.
Trends in Cartel Enforcement in Singapore
Enforcement against cartels has been relatively quiet as of late, with the number of leniency applications and cartel decisions worldwide having declined in 2020 as compared to 2015. However, with the world gradually adapting to the 'new normal' and the removal of pandemic-era restrictions, competition authorities worldwide, including the Competition and Consumer Commission of Singapore ("CCCS"), are looking at cartel enforcement with a renewed interest.
It is therefore critical for businesses in Singapore to be alert to possible infringements under Singapore's competition laws and review their business practices accordingly. This is particularly since the trend in CCCS's cartel enforcement prior to the pandemic demonstrate its increasingly strict stance and stiff penalties for infringing businesses.
This Update highlights the trends in CCC's cartel enforcement with reference to case statistics, and provides practical pointers for businesses to consider.
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