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NewsBytes


Former Head of Allens' Singapore Office Joins Rajah & Tann

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Competition Law - The Movie Marathon - What Should not be Keeping you Awake at Night - 21 May

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Trade Issues into Thailand & ASEAN - Tight Spots with Customs - 22 May

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Legal Aspects of Transfer Pricing - 23 May

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SIAC Congress 2014 - Dispute Resolutionn in Asia - Innovation and Change in an Age of Opportunity - A View from the Lion City - 6 June

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Protection from Harassment 2014: Application in the Workplace and Cyberspace

The Firm's Employment and Executive Compensation Practice organised a client seminar titled "Protection from Harassment Act 2014: Application in the Workplace and Cyberspace" on 30 April 2014.

The Protection from Harassment Act, passed on 13 March 2014, will serve as a consolidated, one-stop legislation providing greater protection for persons against anti-social behaviour such as causing harassment, alarm or distress by using threatening, abusive or insulting words, behaviour or communcation. This includes acts of cyber harassment. Notable changes brought by this new Act includes the creation and definition of a new criminal offence, unlawful stalking, greater penalties for existing harassment offences, and the extension of such offences to include acts done online.

Partners Kala Anandarajah and Lionel Tan provided an overview of the key aspects of the Act. They explained the offences that may be committed under the Act as well as the remedies available to the victims. Kala and Lionel also focused on the likely impact of the Act in the workplace environment and on online behaviour in the use of social media. Businesses and employers were advised to implement a Code of Conduct setting out agreed expectations for employees' appropriate behaviour. Periodic training sessions should also be conducted to educate employees on the company's workplace harassment policy and procedures.

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Decoding Revenue Cases

Irving Aw from the Tax Practice was one of the speakers at a seminar on "Decoding Revenue Cases" conducted on 25 April 2014.

The Supreme Court of Singapore delivered nine decisions in 2013 concerning property tax and income tax. The property tax cases dealt with annual value and vacancy refund issues, while the income tax cases dealt with taxability, deductibility and exchange of information issues. This seminar provided an overview of the cases and offered insights by tax practitioners on the same.

In his presentation on "Case Law on Exchange of Tax Information", Irving discussed three decisions issued by the High Court of Singapore in relation to various court orders for the exchange of tax information ("EOI") between the Inland Revenue Authority of Singapore ("IRAS") and other competent tax authorities. Although the requirement for a court order has since been removed, Irving explained that these cases remain relevant insofar as they relate to the OECD standard to be satisfied in order for an EOI request to be valid, which will likely be taken into consideration by IRAS in processing EOI requests and by the local courts if a taxpayer chooses to challenge such a request by way of judicial review.

The event was co-sponsored by the Tax Academy of Singapore and The Law Society of Singapore.

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Parenthood in the 21st Century: The Status of Children (Assisted Reproduction Technology) Act

Rebecca Chew was one of the speakers at a seminar titled "Parenthood in the 21st Century: The Status of Children (Assisted Reproduction Technology) Act" held on 23 April 2014. The seminar was organised by the Singapore Academy of Law. She covered the practical challenges of the Status of Children (Assisted Reproduction Technology) Act and the policy behind the promulgation of the Act, i.e. to clarify the legal parentage and status of children conceived through assisted reproduction technology ("ART"). It is the intention of the Act that children conceived and born through ART should have a single set of parents. In cases of ART mix-ups where, inter alia, the patient's egg was fertilised by mistake with the sperm of a third-party male, the gestational mother will be the child's legal mother, and her husband or de facto partner the legal father.

Rebecca also identified other practical challenges in the application of the Act. One relates to the concept of de facto partners. She noted that the Act prefers not to be prescriptive about what would constitute a de facto partner because the intention is to accommodate all appropriate circumstances. Despite this, she remarked that a set of guidelines with a list of non-exhaustive factors would be helpful in determining the existence of a de facto partner. Another challenge deals with the issue of whether a subsequent withdrawal of consent by the father or partner following the fertilisation procedure is allowed. Rebecca was of the view that as long as there has been a written consent given at the time the fertilisation procedure was carried out, it is unlikely that the father or partner will be permitted to withdraw his consent thereafter.

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Tailoring Dispute Resolution Clauses for Complex Disputes

The Firm's Appeals & Issues Practice and International Arbitration Practice conducted a client seminar titled "Tailoring Dispute Resolution Clauses for Complex Disputes" on 11 April 2014. The speakers at the seminar were Disa Sim, and Ng Kim Beng and Paul Tan from the Appeals & Issues Practice and the International Arbitration Practice, respectively.

It has been noted in recent years that large corporate entities and financial institutions are averse to bringing their disputes to court, even in meritorious cases, citing reasons such as cost, reputational risk, lack of confidentiality and lack of subject-matter expertise.  In the light of such concerns, corporate entities and financial institutions pose legitimate questions such as whether both litigation and arbitration may be resorted to when disputes arise, and whether there are dispute resolution clauses that may be adopted to address complex disputes.

The speakers examined the dispute resolution options available to parties in complex disputes. Citing local and UK cases, they highlighted the use of tiered dispute resolution clauses and split / hybrid clauses to accommodate complex disputes. Tiered dispute resolution clauses allow a claim to be escalated in stages, while split / hybrid clauses typically provide for both litigation and arbitration, coupled with a mechanism to allow one or both parties to decide on the appropriate procedure in the event of a dispute. They then discussed the key considerations that parties need to bear in mind in drafting such clauses, such as the number of parties involved, the place where the proceedings will take place, and the party that has more bargaining power. Towards the end of the talk, the speakers provided practical tips on drafting dispute resolution clauses for complex disputes, including ensuring that the conditions that would trigger the next step in tiered dispute resolution clauses are clearly set out.

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Regional Mergers & Acquisitions Seminar 2014

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Regional Employment Law Master Classes

Several partners and lawyers from Rajah & Tann's regional offices spoke at two Regional Employment Law Master Classes that were conducted separately on 7-8 April 2014 and 5-6 March 2014.

Chester Toh, the Co-Head of the Firm's Myanmar Practice and Brian Ng from Rajah & Tann's Vietnam regional office Rajah & Tann LCT Lawyers, were the speakers at the 7-8 April 2014 Master Class.

Chester delivered a presentation on employment law in Myanmar in his session titled "Myanmar Unraveled: Building a Solid Employment Framework". He kicked off the presentation by discussing the challenges and opportunities present in Myanmar's labour market, which is currently dominated by a young workforce and characterised by low-cost labour. Chester then provided an overview of the major labour laws in Myanmar, including legislation relating to overtime, minimum wage, social security and compensation. Chester then addressed the latest developments on labour laws in Myanmar, including the recently enacted Settlement of Labour Disputes Law 2012, and Employment and Skill Development Law 2013.  Following this, Chester considered labour obligations under the Foreign Investment Law 2012, including the requirement for foreign investors to observe a graduated increase in the skilled labour quota of Myanmar citizens in their workforce. Finally, Chester raised practical employment challenges and issues that businesses may face in Myanmar. These included shortages in skilled labour and difficulties in filling roles involving senior and managerial-level work. Chester then considered the implications of the formation of the ASEAN Economic Community ("AEC") in 2015 on Myanmar's labour market. He noted that while integration through the AEC may serve to facilitate information sharing, skills development and training amongst Southeast Asian countries, businesses operating in Myanmar should also prepare themselves for potential increases in the shortage of skilled labour, given the greater ease of labour mobility the AEC will likely bring.

Brian, in his talk on "Vietnam Employment Law", provided an overview of Vietnam's legal framework with focus on the country's employment regime. Specifically, he talked about the mandatory terms of labour contracts and the procedure for hiring local and foreign employees. He also touched on termination of employment and important points relating to severance pay. Brian devoted the last part of his talk delving on the practical issues and challenges pertaining to local employment in Vietnam. Of significance was his discussion on how to establish local employment prior to the establishment of a new office in Vietnam. Equally important were his pointers for prospective Vietnam employers on how to overcome restrictive and pro-labour provisions that characterise labour contracts in the country.

For the 5-6 March 2014 Master Class, Kenneth Lim from Rajah & Tann's Myanmar regional office Rajah & Tann NK Legal Myanmar Company Limited provided an overview of Myanmar's employment law regime, touching on the major points tackled by Chester in his April talk. Other speakers in this Master Class were Kala Anandarajah from the Firm's Employment and Executive Compensation Practice, Teoh Sui Lin from Thailand regional office Rajah & Tann (Thailand) Limited, and Mar Samborana from Cambodia affiliate firm R&T Sok & Heng Law Office.

The events were organised by Leadership International Group and Straits Training, respectively.

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International Commercial Dispute Resolution

Lau Kok Keng, the Head of the Firm's Intellectual Property Practice and a Partner in our Commercial Litigation Group, conducted a session on "International Commercial Dispute Resolution" for the NUS Asia-Pacific Executive MBA Program students on 4 April 2014. Kok Keng started off by observing that as opposed to domestic disputes, international disputes typically involve parties whose places of business are situated in different countries. Disputes are also "international" if the place with which the subject matter of the disputes is most closely connected is situated outside one or both of the parties' place of business, or if the place for performance of a substantial part of the obligations of the commercial relationship is situated outside one or both of the parties' place of business.

Kok Keng then went through the range of international commercial dispute resolution options that are available to disputing parties in Singapore: (i) litigation; (ii) international arbitration; (iii) alternative dispute resolution; and (iv) online dispute resolution. He discussed the advantages and disadvantages of using these options, as well as the key issues that confront parties and the courts / tribunals for each of these options. Key issues include jurisdiction, joinder of parties, enforcement of judgments / awards, appeal, choice of law, discovery and confidentiality (for arbitration). Kok Keng also outlined the basic procedures / processes involved in each of these alternatives.

The NUS Asia-Pacific EMBA programme is a specialised programme of the NUS Business School aimed at equipping business executives and leaders to meet managerial challenges in the global and regional economy. It draws on the insights of thought leaders in the region.

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Asian Claims Convention: Recent Trends for Assessment of Damages in the Singapore Courts

Simon Goh, the Head of the Firm's Insurance and Reinsurance Practice, spoke at the Asian Claims Convention that was held in Singapore on 2-4 April 2014. By way of introduction in his talk on "Recent Trends for Assessment of Damages in the Singapore Courts", Simon stated that there is usually little difficulty in assessing the appropriate level of damages for property damage. However, in personal injury cases, the fundamental principle of damages - that the plaintiff should be fully compensated for his loss and restored to the position he would have been in, had the tort not been committed - can be a challenge. Damages for pain and suffering are usually based on precedents, but other aspects like loss of future earnings ("LFE") can be challenging to quantify.  The question to ask therefore is: how does one quantify LFE?

Simon examined a recent case where the Singapore Court was confronted with this issue. The plaintiff here was a pilot trainee who suffered injuries as a result of an accident. He then pursued a degree in management after the incident. Simon noted that this case is unique in that in determining the quantum of damages due to the plaintiff for loss of future earnings, the Court accepted the expert evidence from a remuneration consultant on the plaintiff's possible career and salary trajectories, instead of the very generic salary data from the Ministry of Manpower Wage Report. The fact that engaging a remuneration consultant has "not been done before for LFE assessment" was simply not good enough to prevent this approach from being used. This is now an acceptable method in so far as the assessment of LFE is concerned.

This case, which was handled by Simon and Ms Wang Ying Shuang, was featured in the January-February issue of the NewsBytes. To read the summary of the case, click here.

The Conference was organised by the Australasian Institute of Chartered Loss Adjusters ("AICLA").

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Asia Pacific Research Ethics Conference

Our Partner Rebecca Chew was one of the speakers at the 3rd Asia Pacific Research Ethics Conference (APREC 2014) held on 26-28 March 2014. The theme of the Conference was "Research Ethics: Harmonising Global Principles with Asia Pacific Practices". She was also a member of the organising committee for this Conference headed by Associate Professor Chin Jing Jih.

Rebecca spoke on "Subject's Ethical & Legal Rights - Withdrawal of Consent" in the context of clinical trials with human subjects. She is the only local practising lawyer invited to speak at this Conference attended by researchers from the USA and the Asia Pacific region. The topic drew a lot of interest from the clinical research community as it touches on the issue of informed consent and the implications when consent is withdrawn by the subjects.

The Conference, organised by the National Healthcare Group, saw participants from various healthcare organisations in the Asia Pacific region and beyond, including Australia, Hong Kong, Japan, Malaysia, the Philippines, Thailand, Belgium, Qatar and the United States of America.

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Restrictive Covenants and Protecting Trade Secrets in Singapore

Lionel Tan from the Employment and Executive Compensation Practice was one of the speakers at the "Compensation and Benefits Asia Congress" that was held on 24-25 March 2014.  In his talk on "Restrictive Covenants and Protecting Trade Secrets in Singapore", Lionel discussed the concept of restrictive covenants in employment context. They are usually incorporated into the employment contracts to prevent employees from taking advantage of the resources, goodwill and trade secrets that they obtain during employment, and prevent these employees from using such tools to unfairly put themselves in competition with their former employers after resignation. Covenants in restraint of trade are unenforceable unless it can be shown that there are legitimate proprietary interests that need to be protected, and the restrictive clause is reasonable in the interests of the parties and the public.

Employers must be aware of the distinction between two types of clauses that they may include in their employment contracts. The first type, forfeiture-for-competition clause, causes an employee to forfeit certain benefits if he competes with the current employer. In the second type of clause, the payment-for-loyalty clause, the employee would obtain extra payment only if he remains in the employment of the employer for a stipulated period. The Singapore Court of Appeal in Mano Vikrant Singh v Cargill TSF Asia held that the forfeiture-for-competition clause was in restraint of trade and therefore unenforceable. Based on this ruling, Lionel cautioned employers who are considering using such clauses to see to it that they do not vest bonus awards until and unless a list of pre-conditions are met.

Given the impact of restrictive clauses on an employer's talent retention strategy and compensation structure in an organisation, Lionel stressed that careful drafting of employment contracts is the key to avoiding ambiguity in future. In doing this, employers must take into account relevant considerations and the unique circumstances of each case.

The Congress was organised by Crown Leadership International Group.

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Recent Developments in Indian Company Law and the Tax Benefits of Singapore as an Investment Gateway to India

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4 Good Reasons Why Lawyers are Needed for Property Transactions – Recent Developments

The Firm's Corporate Real Estate Practice organised a client seminar titled "4 Good Reasons Why Lawyers are Needed for Property Transactions – Recent Developments" on 20 March 2014. The seminar provided a general round-up of recent legal developments that have impacted real estate practice and how home buyers, investors and developers have to navigate their way when acquiring or disposing of their properties.

In her talk on "Inspection of Title – Why is it Important to Inspect the Head Lease", Lim Mei Ann examined the ruling of the Singapore High Court in Defu Furniture Pte Ltd v RBC Properties Pte Ltd, where it held that the use of a sub-leased property as a showroom was not authorised under the underlying superior lease. Mei Ann reminded tenants that besides undertaking a review of the lease agreement to which they are a party, any head lease or superior lease would also have to be reviewed for any restrictions or prohibitions. In this regard, landlords should ensure that the obligation to perform and observe the terms of the head lease or superior lease be placed on their tenants through carefully crafted and unambiguous clauses in the contract.

Referring to another High Court case, Boon Lay Choo and another v Ting Siew May, Margaret Chin discussed a scenario where an Option to Purchase ("OTP") was backdated, in her session on "What Happens When an Option to Purchase is Backdated?". The court held that the contravention of a statutory provision (i.e. backdating of the OTP) did not automatically render the contract to purchase a house unenforceable. The OTP was a contract concerning a sale and purchase of land and the exercise was perfectly legal. The illegal manner of procuring the financing was only incidental to the OTP and thus did not, in itself, prohibit the performing of the contract. Margaret highlighted that the decision was appealed against and the outcome is not yet known, but the principles applied in this case are nonetheless worth knowing. (Note: In its 26 May 2014 decision, the Court of Appeal overruled the High Court decision on the grounds of illegality and public policy. The apex court highlighted that as a matter of public policy, the court will refuse assistance to a party whose intention in entering into a contract was to contravene the law.)

Foong Kim Lan's talk on "The Law Society's Conditions of Sale 2012 - Is Life Kinder Now for the Purchaser" focused on the key features of the latest Law Society's Conditions of Sale ("2012 Conditions"), a set of standard terms and conditions that can be applied to contracts for the sale and purchase of immovable properties. Recent developments in the property sector have been incorporated into the 2012 Conditions, such as those that relate to certain measures to safeguard conveyancing monies, the imposition of Seller's Stamp Duty (SSD) and Additional Buyer's Stamp Duty (ABSD), and late completion interest. It was pointed out that while there are some new conditions in the 2012 Conditions that are generally more favourable to the purchaser, it is really between the vendor and the purchaser to decide whether they intend to make reference to the latest Conditions, or its forerunner, the Conditions of Sale 1999, in their contract.

In the session on "ABSD, SSD and TDSR - the New Acronyms to Remember", Elsa Chai talked about the new acronyms that have surfaced in the recent years in the industry, such as TDSR or the Total Debt Servicing Ratio, ABSD or Additional Buyer's Stamp Duty and SSD or a Seller's Stamp Duty. The Government-issued Notices creating these concepts and acronyms were revisited, and their functions and implications on the relevant transactions were examined.

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Perspectives on Online Streaming and Patent Protection Issues in Singapore and the UK

The Firm's Intellectual Property ("IP") Practice conducted a client seminar titled "Perspectives on Online Streaming and Patent Protection Issues in Singapore and the UK" on 11 March 2014.

With the increase in cost of cable and Pay-TV subscriptions, more people are now turning to alternative viewing sources available through advances in internet technology. There are a lot of websites which stream practically every major movie, TV show, news and sporting event directly onto computers or mobile devices. These sites are easy to access and are usually free - though mostly illegal.

Lau Kok Keng, the Head of the Firm's IP Practice and Partner Wendy Low, and Guest Speakers Richard Miller QC and Justin Turner QC of UK-based Chambers at Three New Square assessed the legal implications of online television streaming. They discussed the laws that are infringed when television streaming is carried out unofficially, and the impact on the rights owners, broadcasters, viewers and regulatory bodies of the rise in the availability of illegal online streams. The speakers touched on recent UK and Singapore cases on online streams and examined the UK and Singapore courts' attitude towards this type of technological development. The last part of the seminar delved on patent protection issues in Singapore and the UK. Here, the speakers talked about the state of implementation of the Unified Patent Court in the UK. In Singapore context, they looked at how the recent amendments to the Singapore patents regime affect the landscape for patent protection in the country.

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International M&As: How Indonesia's Merger Regime and Enforcement would Impact such Deals

The Firm's Regional Competition & Antitrust, Trade Practice in conjunction with Rajah & Tann's Indonesian associate firm Assegaf Hamzah & Partners sponsored a client seminar titled "International M&As: How Indonesia's Merger Regime and Enforcement Would Impact Such Deals" on 5 March 2014.

Since its introduction in 2010, Indonesia has tightened its merger control regime and stepped up its enforcement mechanism. The country now has both a mandatory post-merger notification and a voluntary pre-merger notification regime. More information is also required when submitting merger notifications.

In this client seminar, Assegaf Hamzah & Partners' HMBC Rikrik Rizkiyana and Vovo Iswanto identified various issues that must be considered when planning a merger. These include dealing with information exchange during the due diligence exercise process, and including important clauses in the transaction and notification to the Indonesia Competition Authority ("KPPU"). They then discussed recent merger cases and decisions taken by the KPPU, the most important of which relates to a 2012 KPPU decision where the Indonesian competition watchdog imposed a substantial fine on an acquirer for late merger notification. Given Indonesia's thrust of implementing a stricter merger regime, Rikrik and Vovo stressed the need to undertake a competition or merger control analysis at an early stage for all Indonesia-related mergers, even foreign-to-foreign mergers which could potentially affect Indonesia.

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Bribery & Corruption Risks in the Insurance Industry

Simon Goh, the Head of the Firm's Insurance and Reinsurance Practice, chaired the seminar on "Bribery & Corruption Risks in the Insurance Industry" that was held on 5 March 2014. The seminar looked at the major bribery risk areas faced by the insurance industry and how those risks should be managed. It covered risks associated with common business practices, the procedures that must be put in place to mitigate these risks, and the "red flags" that the industry players must be aware of.

The event was organised by the Insurance Law Association, Singapore ("ILAS"), of which Simon is the incumbent President. The members of ILAS consist of lawyers, insurers, insurance brokers, loss adjusters, insurance accountants and others who have an interest in insurance law. ILAS represents the Singapore Chapter of the Association Internationale de Droit des Assurances ("AIDA"), which is The International Insurance Law Association.

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