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UPCOMING EVENT>> 4 Good Reasons Why Lawyers are Needed for Property Transactions - Recent Developments - 20 March 2014

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UPCOMING EVENT>> Developments in Singapore Contract Law 2013 - 27 March 2014

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Rajah & Tann Expands Regional Presence with Vietnam Tie-Up

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14 Lawyers from Hunton & Williams Join Rajah & Tann’s Bangkok Office

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Cartels, Leniency and Settlements - How?

Partner (Foreign Lawyer) Dominique Lombardi and Kimberly Tan from the Competition & Antitrust, Trade Practice spoke at the conference titled "Competition Law Compliance 2014" which was held on 28 February 2014.

In their session on "Cartels, Leniency and Settlements – How?", they discussed what constitutes anti-competitive agreements as provided for in the Competition Act, and the trends in cartel enforcement. Dominique and Kimberly also outlined the Competition Commission of Singapore’s ("CCS") Leniency Programme which incentivises undertakings involved in a cartel to disclose evidence of cartel activities. They then touched on the importance of having compliance programmes in place as a key part of proactive risk management within a company. This entails instituting and updating competition compliance programmes, being vigilant when exchanging information, and being alert to competition risks. 

The last segment of the session was devoted to a discussion on settlements. Although this is not expressly provided for in the Competition Act or the CCS Guidelines, settlements may provide a more practicable and economically efficient alternative to infringement findings. To illustrate, Dominique and Kimberly shared two recent cases that opened up the possibility for settlements. 

The event was organised by CrimsonLogic.

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Unlocking Myanmar's Potential

Chia Kim Huat, the Head of the Firm's Corporate & Transactional Practice, and Kenneth Lim, Associate Director of Rajah & Tann NK Legal Myanmar Company Limited, participated in the symposium titled "Unlocking Myanmar's Potential" in Yangon on 26 February 2014.

Kim Huat was the moderator at a panel on "Harnessing Opportunities in Myanmar - in Conversation with Business Leaders", which comprised chief executive officers from top Singapore and Myanmar companies. It was a lively panel discussion and the panelists provided practical input on and highlighted the challenges of investment in Myanmar, as well as their outlook on the Myanmar economy.

Kenneth spoke at the session on "Getting it Right: A Legal Perspective". He talked about Myanmar's economic reforms that offer foreign investors increasing opportunities to establish business presence in the country. Kenneth pointed out that with the enactment of the new Foreign Investment Law, foreign ownership and participation in most sectors are allowed, subject to conditions. The key challenges in doing business in Myanmar were also discussed, such as unstable regulatory regime and social unrest.

Kenneth concluded the session by giving updates on the efforts by the Government to open up Myanmar's economy, including those in the telecommunications industry. Potential investors can also look forward to seeing the enactment of new intellectual property laws, the full ratification of the New York Convention that permits enforcement of foreign arbitral awards and the enactment of new competitions laws as part of ASEAN commitments. 

The event was organised by UOB.

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Regulatory Update on New Singapore Laws and their Impact on Investment Managers

The Firm's Regulatory & Funds and Technology Media and Telecommunications Practices conducted a series of talks titled "Regulatory Update on New Singapore Laws and its Impact on Investments Managers" on 20 February 2014. 

There has been a broad transition of exempt fund managers that have become holders of capital markets licences and registered fund managers in the last 12 months. Arnold Tan, the Head of the Regulatory & Funds Practice, Leong Lu Yueh and Anne Yeo from the same Practice, discussed pertinent issues relating to the transition. They touched on the legal and regulatory developments in the regulatory framework governing fund managers. These include new changes to the total risk requirements for license holders, requirements when establishing overseas offices, professional staffing requirements, employee and investor on-boarding. Lu Yueh also spoke on impending changes to the Employment Act offering greater protection to Professionals, Managers and Executive employees, and the new Fair Consideration Framework.

Rajesh Sreenivasan, the Head of the Firm's Technology Media and Telecommunications Practice, provided an overview of the Personal Data Protection Act ("PDPA"). To come into full operation in July 2014, the PDPA regulates the collection, use and disclosure of personal data of natural persons. Rajesh proffered some measures that fund managers might wish to carry out to comply with the PDPA.

Irving Aw from the Tax Practice talked about the US Foreign Account Tax Compliance Act ("FATCA") in general and the steps that should be taken by fund managers in respect of themselves and the funds that they manage in Singapore or in the Cayman Islands for FATCA compliance purposes. 

Larry Lim from the Regulatory & Funds Practice focused on OTC derivatives. He noted that there has been heightened regulation worldwide on the trading of OTC derivatives and Singapore is in the process of implementing its own reporting regime. Larry then discussed the reporting obligations that managers trading in derivatives will need to know to comply with these new rules.

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Recent Indonesian Court Decisions Affecting Banking & Finance Transactions

Rajah & Tann organised on 20 February 2014 a client lunchtime seminar titled "Recent Indonesian Court Decisions Affecting Banking & Finance Transactions". Ibrahim Assegaf  from Rajah & Tann's Indonesian associate firm Assegaf Hamzah & Partners first touched on the latest developments on offshore loan reporting in Indonesia. In the country, any payment obligation to a non-Indonesian party must be reported by the borrower amongst others to Bank Indonesia ("BI"). The Indonesian Supreme Court had previously ruled that the BI offshore loan report was a public policy requirement that was crucial for the protection of Indonesia’s foreign exchange reserves. The decision created controversy and has since been corrected via a Supreme Court ruling, holding that the failure to submit the BI offshore loan report is only subject to administrative penalties and does not affect the validity and enforceability of the subject loan agreement. Years later, the Court decided that the failure to report an offshore loan to BI would render the subject agreement non-binding in Indonesia. This Court relied on this case in a 2011 bankruptcy matter. Ibrahim viewed that the public policy argument is expected to resurface if and when Indonesia's economy weakens.

He also discussed the National Flag, Language, Cost of Arms and Anthem Act ("Act"), a legislation which requires the use of Bahasa Indonesia in executing commercial agreements to which one of the parties is the Government of Indonesia, an Indonesian private entity or an Indonesian citizen. In 2009, the Ministry of Law and Human Rights issued an opinion, stating that this specific provision does not apply to private commercial transactions. AHP is of the view that as the language requirement is clear the Ministry Opinion cannot supersede or circumvent the clear wording of the language provision of the Act. Citing a West Jakarta Court Decision, Ibrahim stressed that "only a ruling against its constitutionality by the Constitutional Court or the amendment of the Act by the House of Representatives" could set aside the language requirement.

Ibrahim likewise addressed other issues related to the language requirement, such as the applicability of the requirement to documents governed by law other than Indonesia. He pointed out that the requirement applies to an agreement to which an Indonesian entity is a party, regardless of the governing law.

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Antitrust in Asia: Cartels, Abuses, Leniency & Settlements - Building Better Compliance

The Firm's Competition & Antitrust, Trade Practice conducted a client seminar titled "Antitrust in Asia: Cartels, Abuses, Leniency & settlements- Building Better Compliance" at The American Chamber of Commerce in Singapore on 20 February 2014.

The team, comprising the Head of the Practice, Kala Anandarajah, Partner (Foreign Lawyer) Dominique Lombardi and Principal Economist Tanya Tang, shared insights on the importance of competition compliance and the issues surrounding information exchange among competitors, as well as highlights from recent competition cases in the region. The session provided practical tips that companies doing businesses in the region can adopt to ensure compliance with the various competition regimes in place.
 
The seminar was well attended by senior executives from multinational corporations and professional services organisations.

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Emerging Legal Issues Affecting the Financial Sector

K Muralidharan Pillai, Lai Yew Fei and Gregory Vijayendran from the Commercial Litigation Practice, and Sim Kwan Kiat, the Head of the Business Finance and Insolvency Practice, were the speakers at the Firm-sponsored client seminar titled "Emerging Legal Issues Affecting the Financial Sector" held on 10 February 2014.

Financial institutions operate in a constantly evolving legal and regulatory landscape. The talks by the speakers were intended to highlight a few of the more recent developments and changes which impact financial institutions.

In his session on "The Future of Mis-selling Cases against Banks in Singapore Courts",   Murali examined the typical grounds that are relied on in mis-selling claims against financial institutions such as misrepresentation, breach of fiduciary duty, breach of duty of care, breach of mandate, and how recent case law affect such civil claims in the Singapore court.

Yew Fei, in his talk on "New Regime of Transnational Exchange of Information – Banking Secrecy and Privilege" discussed the impact of the amendments to the Income Tax Act that came into operation on 28 November 2013. This specific amendment allows the Inland Revenue Authority of Singapore, in responding to a request from a foreign tax authority, to obtain information from banks and trust companies without having to seek a court order.  This information is otherwise protected by banking secrecy and confidentiality under the Banking Act and the Trust Companies Act.

Kwan Kiat surveyed the recent case law on foreign insolvency orders. When a foreign corporate is placed under liquidation or an equivalent regime under the law of its incorporation, should financial institutions recognise or give effect to the foreign insolvency order? This question was examined in his talk on "Effect of Foreign Insolvency Orders - Recent Developments" in light of recent case law from the UK and other commonwealth jurisdictions. In summary, the latest position is that a foreign insolvency order will be subject to the same rules of recognition and enforcement as any other foreign judgment, ie, the party against whom the foreign judgment is to be enforced must either be present or has submitted to the foreign jurisdiction.

Finally, Gregory analysed the reliability of non-reliance clauses in agreements with banks in his talk on "The Reliability of Non-Reliance Clauses – Recent Judicial Decisions". The Singapore Court of Appeal in 2007 decided that a non-reliance clause in a customer's agreement with a bank effectively precluded the customer from suing the bank for, amongst others, breach of duties and negligence. However, more recent court decisions suggest a judicial re-consideration of these clauses as bulwarks especially in scenarios involving unsophisticated customers. In his segment, Gregory presented an analysis of non-reliance clauses from three different perspectives : (1) negativing a duty of care (2) as exclusion or restriction of liability clauses and the implications of the Unfair Contract Terms Act and (3) as an evidential or contractual estoppel.

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Competition in the Region: Reflections in 2013; What is Forthcoming in 2014

The Firm's Competition & Antitrust, Trade Practice held a client seminar titled "Competition in the Region: Reflections in 2013; What is Forthcoming in 2014" on 27 January 2014.

The team, comprising the Head of the Practice, Kala Anandarajah, Partner (Foreign Lawyer) Dominique Lombardi and Principal Economist Tanya Tang, provided an overview of the various developments that have occurred on the competition / antitrust front in the region in 2013. These included the breaking of the first international cartel in Singapore, the first conditionally-approved merger in Indonesia, and the imposition of massive proposed penalties on Malaysian companies for abuse of dominance and market-sharing. They then touched on what might be expected in 2014, including developments towards the introduction by 2015 by all ASEAN countries of a nation-wide competition policy and law in fulfillment of the goals set out in the ASEAN Economic Community blueprint. The team concluded the seminar by discussing the trends in cartel enforcement and other possible competition law developments, and their implications for businesses.

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Introduction to International Arbitration

Francis Xavier SC, the Head of the Firm’s Disputes Practices, and Heng Chhay, the Managing Partner of Rajah & Tann Sok & Heng Law Office, were the speakers at the Introductory Course to International Arbitration in Phnom Penh, Cambodia on 24-25 January 2014. The Course consisted of a series of talks on the various stages of an international arbitration and the relevant legal principles and case laws applicable at each stage.

Francis covered the essential features of arbitration as well as the key differences between litigation and arbitration in the session, "General Overview and Features of International Arbitration". In another session on "Composition of the Arbitral Tribunal", he looked into the qualifications of arbitrators, the independence and impartiality required of them, and the grounds and procedure to challenge the arbitrators.

In his talk on "Jurisdiction, Powers and Duties of the Arbitral Tribunal", he discussed the sources of jurisdiction and the powers of the arbitral tribunal. In relation to this, Francis touched on the key features of the emergency arbitrator regime which is aimed at providing interim / provisional relief before the constitution of an arbitral tribunal.

The topic, "Conduct of the Proceedings, Organising the Proceedings and the Preliminary Meeting" dealt with arbitration rules relating to the conduct of the proceedings. Consistent with the relevant arbitration rules, it is good practice to organise a preliminary meeting for the conduct of the arbitration. Although preliminary meetings are allowed to facilitate the resolution of disputes in an organised and timely manner, Francis was quick to point out that the parties must be treated equally and be given full or reasonable opportunity to present their cases in the course of the proceedings.

Chhay, in his session on "Cambodian Commercial Arbitration and Enforcement of Arbitral Awards", provided an overview and current development of the Cambodian legal framework pertaining to commercial arbitration, and also touched on the issues surrounding the recognition and enforcement of foreign arbitral awards in Cambodia. He also drew on two precedent cases, providing the latest available update.

The Course was organised by the Chartered Institute of Arbitrators ("CIArb").

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Secure Your Business – Improved Mobile Device Security

Rajesh Sreenivasan, the Head of the Firm's Technology, Media and Telecommunications Practice, presented a talk on "Securing Mobile Devices: Legal Risks and Challenges" at a seminar titled “Enhance Mobile Device Security for your Business” held on 24 January 2014.

There is a rising Bring Your Own Device ("BYOD") trend in the business environment nowadays where employees connect their personal devices to the company network or download company data on their mobile devices in the course of their work. Rajesh talked about the legal implications of using BYOD for work, as well as the implications of the Personal Data Protection Act ("PDPA") in relation to mobile devices.  He then proceeded to identify the risk issues associated with the BYOD scheme, such as company data leakage, intellectual property leakage, violation of customer privacy and infringement of licensing agreements. Rajesh wrapped up his talk by providing practical pointers to mitigate the risks associated with the increasing prevalence of BYOD, with focus on compliance with the relevant provisions of the PDPA. 

The seminar was organised by SingTel.

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Transfer Pricing, Tax Risk and Dispute Resolution

Irving Aw from the Tax Practice was the speaker for three of the five sessions at Biznet's one day seminar on "Transfer Pricing, Tax Risk and Dispute Resolution" held on 16 January 2014.

In the session on "Tax Dispute Resolution", Irving discussed the common types of tax disputes faced by taxpayers as well as the tax objection and tax appeal processes in Singapore. He also shared with the participants his experience in handling tax disputes and a number of best practices that may be adopted by taxpayers to prevent or settle such disputes.

In the second session on "Exchanging of Tax Information", Irving discussed various significant changes to Singapore's exchange of information ("EOI") regime, including Singapore's accession to the Convention on Mutual Administrative Assistance in Tax Matters ("Convention"), an anticipated Model 1 Inter-Governmental Agreement ("IGA") to be concluded with the US for Foreign Account Tax Compliance Act ("FATCA") purposes, as well as the removal of the court order requirement for the disclosure of information protected by banking and trust companies secrecy rules for EOI purposes. He also talked about the impact of these changes on businesses and the steps that should be taken to avoid any potential breach of confidentiality.

For the final session on "How FATCA Affects Non-Financial Businesses and What to do to Prepare for it", Irving explained the core requirements of FATCA for non-financial companies under the Final Regulations and Model 1 IGA template. He also delved into the key implementation challenges faced by both financial institutions and non-financial companies in complying with FATCA.

The event was co-sponsored by Rajah & Tann and Ernst & Young. 

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Understanding and Demystifying the Role of the Data Protection Officer

Rajesh Sreenivasan, the Head of the Firm's Technology Media and Telecommunications Practice, was the speaker at a seminar on "Understanding and Demystifying the Role of the Data Protection Officer" held on 16 January 2014. He provided an overview of the Personal Data Protection Act 2012 ("PDPA"), including the data protection principles found in the legislation. 

Rajesh then explained the role and scope of work of the Data Protection Officer ("DPO"), the person who has the responsibility of overseeing all data protection-related matters within the organisation. The DPO being the key person in the implementation of the PDPA in an organisation, Rajesh looked at his role in the areas of data security, confidentiality of employee information, and staff selection and training. To properly implement the PDPA, Rajesh suggested an approach that DPOs may adopt in their respective organisations. The approach consists of a pre-audit stage where the staff are introduced to the PDPA and how this law may impact the organisation’s operations and procedures. There will then be an audit stage where the DPO determines whether the organisation’s relevant policies and procedures comply with the PDPA. The last stage is the post-audit rectification and implementation stage. Here, the DPO assesses the compliance level of the organisation and recommends steps on how to have a fool-proof data protection policy.

The seminar was organised by CrimsonLogic.

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