eOASIS is Rajah & Tann Singapore LLP's legal information website for clients, containing business and legal information prepared from a practitioner's viewpoint. It has four different modules, updated regularly, and materials range from commentaries on the latest legal developments to key legal and business information.

What's new on eOASIS

MAS Sets Out Revised Expectations for Notification of Data Breaches by Licensed Insurers
Data breaches are a key concern for organisations, particularly in light of the increasing incidents of data leaks. As part of Singapore's regulatory framework to protect personal data, there are various requirements in place regarding notification of data breaches to the relevant authorities. For licensed insurers, which collect and hold large quantities of personal data, it is important to be aware of the applicable notification requirements and timelines.

On 22 February 2023, the Monetary Authority of Singapore ("MAS") issued Circular No. ID 03/23 – Notification of Data Breaches to the Monetary Authority of Singapore ("Circular 03/23"). Circular 03/23 sets out the revised expectations for licensed insurers regarding notifying MAS of data breaches. This Update highlights the applicable notification requirements for the prescribed categories of data breaches, as well as the relevant timelines for notification, under Circular 03/23.  

New Regulations for Filing-Based Administration of Overseas Securities Offering and Listing by Domestic Companies
On 17 February 2023, the China Securities Regulatory Commission published new regulations for the filing-based administration of overseas securities offering and listing by companies that are incorporated in the People's Republic of China and the domestic operating entities of companies whose securities are indirectly offered and listed overseas (collectively referred to as "domestic companies"). The new regulations, which will come into effect on 31 March 2023, establish a filing-based approach instead of the current approval-based approach.

The new regulations are made up of six sets of documents, namely, the "Trial Administrative Measures of Overseas Securities Offering and Listing by Domestic Companies (境内企业境外发行证券和上市管理试行办法)" ("Measures") and five supporting guidelines.

This Update provides a broad overview of several key areas under the Measures that may be of significance to domestic companies seeking to carry out a direct or indirect offering of securities and listing on an overseas securities exchange. 

Landmark Singapore Decision on GST Liability for Goods Sold via Direct Selling Business Model
The recent landmark decision of Herbalife International Singapore Pte Ltd v Comptroller of Goods and Services Tax [2023] SGHC 54 lays down the principles in calculating the Goods and Services Tax ("GST") liability for goods sold via a direct selling model where the goods are supplied only to members who are registered with the business ("Members") at a discount and the Members may in turn sell the goods to consumers. The primary issue before the Singapore High Court was whether GST should be levied on the discounted rate of goods sold by the business to its Members or the open market value of the goods. Ruling in favour of the business in this case, Herbalife International Singapore Pte Ltd ("Herbalife"), the Singapore High Court held that it should be the discounted rate of the goods. The Singapore High Court’s decision provides helpful guidance on the meaning of consideration under GST law and whether contractual undertaking of obligations could constitute non-monetary consideration for the purposes of section 17(3) of the Goods and Services Tax Act 1993.

This landmark decision will impact all direct marketing companies. Herbalife was represented by Vikna Rajah, Head of Tax & Trust practice and Co-Head of Private Wealth practice, and Koh Chon Kiat, Senior Associate in the Tax & Trust practice.

In this Update, we consider the decision of the Singapore High Court. 

Receivership vs Judicial Management – Court Considers Interplay of Regimes in Insolvent Company
When a company enters financial trouble, the Singapore restructuring and insolvency framework provides a number of avenues through which the rights of the company's creditors may be addressed. In Yap Sze Kam v Yang Kee Logistics Pte Ltd [2023] SGHC 43, the Singapore High Court was faced with a scenario where it had to consider the interplay between the judicial management regime and the receivership regime. The case involved bondholders, with a debt of about S$110 million, who had appointed receivers over the majority of the shares of the relevant companies, thus achieving effective control of the companies. However, a creditor and a founder of the companies sought to appoint judicial managers over the companies instead.

The Court declined to appoint judicial managers in the circumstances, finding that it would not achieve the statutory purposes of judicial management, and would not be in the best interests of the creditors as a whole. The decision demonstrates the areas where conflict may arise between the receivership and judicial management, and how the Court may resolve such tensions by addressing the interests of the various groups of creditors.

Jansen Chow of Rajah & Tann Singapore LLP successfully represented one of the largest bondholders in this matter. 

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