Legal Updates

Legal Updates for January 2022

DIFC Court of Appeal Rules on Setting Aside of Arbitral Award
In Lachesis v Lacrosse [2021] DIFC CA 005, the Dubai International Financial Centre ("DIFC") Court of Appeal considered an application to set aside an arbitral award on grounds of failure to observe arbitral procedure, incapacity, and unfair treatment. The Tribunal had earlier issued an arbitral award in favour of the Respondent. The Appellant sought to challenge the award before the DIFC Court, where the Court of First Instance dismissed the Appellant's application. On appeal, the Court of Appeal upheld the Court of First Instance's decision.

The Respondent was successfully represented by V Bala and Dinesh Sabapathy of Rajah & Tann Singapore LLP before the Tribunal, the DIFC Court of First Instance and the Court of Appeal. This Update provides a summary of the matter and the Court’s decision on the law of setting aside of arbitral awards.

Bill Passed to Allow Conditional Fee Agreements, Expand Foreign Lawyers' Representation
In a drive to strengthen Singapore's position as an international dispute resolution hub, the Ministry of Law ("MinLaw") has been continuously updating Singapore's legal regime. This has borne fruit, with Singapore being selected in 2021 as the most preferred seat of arbitration in the world for the first time, while its exports of legal services exceeded S$0.9 billion in 2020.

As part of Singapore's continuing efforts to stay competitive and current, the Legal Profession (Amendment) Bill ("Bill") was passed by Parliament on 12 January 2022. The Bill principally sets out two key amendments to the Legal Profession Act:

1. Introduction of a framework for conditional fee agreements ("CFAs"), commonly known as "no win no fee" or "no win less fee" agreements; and
2. Refining the scope of representation of foreign lawyers in the Singapore International Commercial Court ("SICC"), thus facilitating collaboration between local and foreign lawyers.

Towards an Efficient and Business-Friendly IP System – Intellectual Property (Amendment) Act 2021 Passed in Parliament
The Intellectual Property (Amendment) Bill 2021 ("Bill") was passed in Parliament on 12 January 2022. The Bill makes changes to a number of Intellectual Property statutes, seeking to create a more efficient and business-friendly registration system in Singapore. The Bill makes changes to the Patents Act, Trade Marks Act, Registered Designs Act, Plant Varieties Protection Act, and Geographical Indications Act 2014.

The Bill seeks to effect improvements across three broad categories: (a) Enhanced business-friendliness; (b) Operational efficiency; and (c) Enhanced legislative and procedural clarity. This Update highlights the key changes effected by the Bill.

Singapore Court Provides Guidance on the Conduct of a Debtor's Bankruptcy Application
Debtor's bankruptcy applications may be seen as being less common than creditors' bankruptcy applications. The law regarding the conduct of debtor's bankruptcy applications, including the relevant tests and the burden of proof, is thus less often explored. In Re Then Feng [2022] SGHCR 1, the Singapore High Court provided guidance in this regard.

The Court considered a number of questions regarding debtor's bankruptcy applications. Who is entitled to intervene? What must the debtor show to succeed in an application? On what grounds will the Court dismiss an application, and what are the relevant tests? In this Update, we provide a summary of the key points of the Court's decision and what it means for future debtor's bankruptcy applications.

Key Legislative Changes Enhancing Transparency and Beneficial Ownership of Companies, Foreign Companies, and LLPs
On 10 January 2022, the Parliament passed the Corporate Registers (Miscellaneous Amendments) Act that amends the Companies Act and the Limited Liability Partnerships Act to improve the transparency and beneficial ownership of companies and limited liability partnerships. This follows an earlier consultation in July 2021 conducted by the Ministry of Finance and the Accounting and Corporate Regulatory Authority.

The changes align our corporate governance requirements closer with international standards by the Financial Action Task Force (FATF) to make it harder for illicit actors to engage in money laundering, terrorism financing and other actions that abuse the system. The changes have not come into force, but companies and LLPs should be familiar with the changes and prepared when they do.

In this Update, we highlight the key legislative changes.

Bill Amending Laws on Gambling Duties Passed in Parliament
On 10 January 2022, the Gambling Duties Bill ("Bill") had its second reading and was passed in Parliament. The Bill consolidates and harmonises the law on the levy and collection of duties on legalised betting and lotteries, and also increases the amounts of fines and penalties for default in payment of gambling duties. In addition, the Bill makes related amendments to other legislation such as the Casino Control Act, the Private Lotteries Act, and the Inland Revenue Authority of Singapore Act, as well as repeals the Betting and Sweepstakes Duties Act.

In this Update, we highlight the key changes introduced by the Bill.

Enhanced Protections, Information for Home Buyers: Public Consultation on Changes to Housing Developers Rules
Recently, the Urban Redevelopment Authority ("URA") launched a public consultation on proposed changes to the Housing Developer Rules ("HDR") that would grant home buyers more protections and require developers to provide more information. This includes some changes to the standard sale and purchase agreement ("SPA").

The amendments generally favour buyers, with some changes imposing greater liability on developers, such as the reduction of the claim threshold where units fall short of the area stated in the SPA. Developers should review the proposed changes, and submit any input to URA.

We summarise the proposed changes below in the following categories:

1. Enhanced protections;
2. Additional information provided to home buyers; and
3. Other amendments, namely a simplified payment schedule and a later start for the defects liability period.

Correcting the Course – Can a Ship Arrest be Maintained on Subsequently Amended Pleadings?
If the premise upon which an arrest was obtained turns out to be factually unsustainable, can the arrest nonetheless be maintained on a different factual basis by amending the pleadings? That was the question in The Jeil Crystal [2021] SGHC 292 where the Singapore High Court sustained an arrest on the basis that the facts underpinning the amended pleadings fell within the admiralty jurisdiction of the Court and existed when the writ in rem was issued.

The decision of the Court is noteworthy as this appears to be the first time the issue has been considered by the Singapore Courts. This Update provides a summary of the decision and the implications on the law of ship arrest.

ACRA Consults on Legislative Changes for Enhancing Transparency of Beneficial Ownership, Addressing Data Privacy & Digitalisation
The Accounting and Corporate Regulatory Authority ("ACRA") is conducting a public consultation to seek comments on changes to the legislation governing the business entities regulated by ACRA to achieve the following broad objectives:

• Provide ACRA with greater flexibility in the collection, sharing and usage of personal data;
• Strike a balance between corporate transparency and personal data privacy;
• Make filing with ACRA more convenient;
• Facilitate Government-to-Business digital correspondence;
• Enhance transparency of beneficial ownership of companies and limited liability partnerships ("LLPs") in order to reduce the chances of Singapore business entities being used for illicit purposes;
• Standardise and consolidate service of summons and other civil originating process under the Acts administered by ACRA;
• Streamline and clarify the striking-off regime for companies, foreign companies, variable capital companies and LLPs.

Maritime Piracy and the Entitlement to Contributions for Ransoms Paid
Are shipowners entitled to recover part of the ransom paid to pirates as general average contribution from the holders of the bill of lading? That was the principal question before the English Court of Appeal in Herculito Maritime Limited v Gunvor International [2021] EWCA Civ 1828. The Court of Appeal answered the question in the affirmative, arriving at its conclusion by interpreting the terms of the bills of lading and the terms of the voyage charter to the extent they were germane to the contract of carriage evidenced by the bills.

In this Update, we provide a summary of the decision and its implications on the right to contribution for ransoms, as well as the issue of incorporation of provisions into bills of lading.

Shipping Law Updates
The Shipping Law Updates is a publication by our Regional Shipping Group which marshals legal expertise, industry insight, and commercial acumen in the fields of maritime and trade from the diverse talent pool of specialist lawyers at the Rajah & Tann Asia offices. The publication provides a snapshot of the key legal, regulatory, case law and industry developments in the region that have an impact on the shipping industry and your operations.

In this issue, we report on the launch of the Fourth Edition Rules of the Singapore Chamber of Maritime Arbitration which will apply to maritime arbitrations commencing this year. We also spotlight the implementation of Protocols on Court-to-Court communication and cooperation in Admiralty, Shipping and Cross-Border Insolvency matters announced by the Supreme Court of Singapore and the Federal Court of Malaysia in October 2021. From a recent court decision in Brunei, with conjoined arbitrations launched in Singapore, we revisit the practical significance of the arbitral seat and the consequences of wrongly interpreting an arbitration agreement. Regarding the topical subject to main-line operators and logistics companies of abandoned containerised cargoes, we consider the options available to manage the same, as well as the factual and legal issues to be considered as a matter of English law and Singapore law.

Revised CCCS Competition Guidelines – Implications in the Digital Era and Other Guidance
CCCS Revised Competition Guidelines Take Effect From 1 Feb 2022
Various developments in the legal and business spheres have impacted competition law and its application, for instance, the rise of e-commerce platforms competing in multiple market segments offering distinct products and/or services in Singapore and Southeast Asia.

Taking into account the findings and recommendations from its e-commerce platform market study report, amendments to the Competition Act in 2018, its experience in administering and enforcing the Act since the Guidelines were last revised, as well as international best practices, the Competition and Consumer Commission of Singapore ("CCCS") has revised various CCCS Competition Guidelines for enhanced clarity and guidance.

The revised CCCS Competition Guidelines will take effect from 1 February 2022.

This Update briefly highlights several key changes to the relevant Guidelines that may be of pertinence to businesses.

Regional Comprehensive Economic Partnership Agreement Enters into Force
The Regional Comprehensive Economic Partnership ("RCEP") Agreement has entered into force on 1 January 2022, following the ratification of the Agreement by 10 Parties – Australia, Brunei, Cambodia, China, Japan, Laos, New Zealand, Singapore, Thailand, and Vietnam.

The RCEP Agreement is a comprehensive and mutually beneficial economic partnership, and is the largest Free Trade Agreement to date. It includes new areas such as Intellectual Property, Competition Policy, e-Commerce, Government Procurement and SMEs. In this Update, we highlight the key benefits of the RCEP Agreement.