Legal Updates for October 2021Steering Away from Unfair Trade Practices
Consumer protection is taken seriously in Singapore. The Consumer Protection (Fair Trading) Act, as administered by Competition and Consumer Commission of Singapore ("CCCS"), protects consumers against unfair practices and grants consumers additional rights in respect of goods that do not conform to contract. The Consumers Association of Singapore ("CASE") is the body that generally first reviews complaints from local consumers and, to the extent that it cannot be resolved through negotiations, mediation or entering into a voluntary settlement, refers errant suppliers who persist in unfair trade practices to CCCS for investigation.
In this Update, we highlight a recent case which demonstrates exactly this, where CCCS commenced action against an errant fire extinguisher supplier to prevent it from engaging further in unfair trade practices. We also outline updates issued by CASE on areas that it is focussing on to combat unfair trade practices, as highlighted by new CASE president, Mr Melvin Yong.
Clarification of Amendments to Personal Data Protection Act – Follow-Up Changes to Regulations and Advisory Guidelines
The Personal Data Protection Act 2012 ("PDPA") has been undergoing a series of amendments pursuant to the Personal Data Protection (Amendment) Act 2020, aimed at enhancing the PDPA and strengthening organisation accountability and consumer protection. The changes have taken effect in phases, with the first phase coming into operation on 1 February 2021.
As a follow-up to the earlier changes, a number of subsequent amendments have been made to the Regulations under the PDPA – specifically, the Personal Data Protection Regulations 2021 and the Personal Data Protection (Notification of Data Breaches) Regulations 2021. These amendments have taken effect from 1 October 2021, and serve to clarify the concept of significant harm for mandatory data breach reporting, defences for egregious mishandling of personal data and the provision of business contact information of Data Protection Officers. This {start}Update{end} provides a summary of the amendments to the Regulations.
Exemption Frameworks for Cross-Border Business Arrangements for Foreign Offices & Foreign Related Corporations of Singapore FIs Take Effect
On 9 October 2021, the Monetary Authority of Singapore ("MAS") put in place an exemption framework to exempt the foreign head offices or branches ("FOs") of relevant financial institutions in Singapore ("Singapore FIs") conducting capital markets services and/or financial advisory services from applicable business conduct and representative notification requirements when the FOs conduct business in Singapore, subject to boundary and notification conditions ("Branch Framework"). The Branch Framework aims to level the playing field between FOs and foreign-related corporations of the Singapore FIs ("FRCs") which provide cross-border financial services in Singapore under a MAS approved arrangement with the Singapore FI ("FRC Framework").
At the same time, the FRC Framework has been streamlined, moving away from the case-by-case approval approach to an ex-post notification approach. Before 9 October 2021, FRCs have to be approved by MAS to operate under the FRC Framework so that they are exempted from the licensing and applicable business conduct requirements under the Securities and Futures Act and Financial Advisers Act.
This Update provides an overview of the: (i) scope and boundary conditions under the new Branch Framework and revised FRC Framework; (ii) notification requirement for cross-border arrangements under the Branch Framework and the FRC Framework; and (iii) on-going requirements in relation to the Singapore FI's cross-border arrangements with its FOs and FRCs (including anti-money laundering and countering of the financing of terrorism (AML/CFT) requirements).
Singapore High Court Refuses to Impose Conditions in Ordering a Stay of Proceedings in Favour of Arbitration in London
If a claim would be time-barred in arbitration, but not in the court proceedings that had been commenced within time, would that be enough reason to impose conditions when ordering a stay of court proceedings? The Singapore High Court answered the question in the negative in The Navios Koyo [2021] SGHC 131.
This case is a reminder for parties to commence legal proceedings timeously and in the agreed forum, or risk the claim being time-barred. In this Update, we provide a summary of the decision and the key points potential disputants should note.
Singapore and Malaysia Announce Protocols for Court-to-Court Cooperation in Cross-Border Insolvency and Shipping
On 5 October 2021, the Supreme Court of Singapore and the Federal Court of Malaysia announced the implementation of Protocols on Court-to-Court communication and cooperation in Admiralty, Shipping and Cross-Border Insolvency matters ("Protocols"). The Protocols put in place a framework for cooperation and communication between the two Courts to facilitate the efficient and timely coordination and administration of prescribed types of cases.
In this Update, we highlight the key features of the Protocols and how they impact cross-border commercial disputes.
Public Consultation on Proposed Amendments to Limited Partnerships Act
A limited partnership ("LP") is a vehicle for doing business in Singapore, comprising at least one general partner who takes on unlimited liability for the partnership's obligations (usually the fund manager), and one or more limited partners (investors) who are not personally liable for the partnership's obligations beyond their agreed commitments, provided they do not take part in the management of the LP.
LPs are popular amongst investment funds due to the relative ease of day-to-day administration and management and flexibility in the capital structure. Their features include:
- Limitation of liability for investors;
- Greater privacy than companies;
- Greater flexibility than companies; and
- Tax transparency, as the partnership is not treated as a distinct tax entity from the partners.
In Singapore, LPs are governed by the Limited Partnerships Act ("LP Act"). On 4 October 2021, the Accounting and Corporate Regulatory Authority ("ACRA") announced a public consultation running from 4 October 2021 to 1 November 2021 on 14 proposed changes to the LP Act to:
- make the limited partnership vehicle more attractive to fund LPs; and
- update existing provisions in the LP Act for all types of LPs.
In this Update, we examine key proposed amendments.
MAS Consults on Features & Legislative Framework of Digital Platform for FIs to Share Information for AML/CFT Purposes
The Monetary Authority of Singapore ("MAS") is seeking feedback on its proposal to deploy a secured digital platform, to be named COSMIC (Collaborative Sharing of ML/TF Information & Cases), that will allow financial institutions to share information to help them detect and disrupt illicit transactions in a timelier manner. Such information relates to the particulars of a customer (including the beneficial owners and authorised signatories of the customer) and transactions, money laundering, terrorism financing and proliferation financing risk observations or analysis relating to the customer, or the high-risk behaviour exhibited.
These proposals are set out in MAS' "Consultation Paper on FI-FI Information Sharing Platform for AML/CFT" that was published on 1 October 2021. The consultation ends on 1 November 2021, with MAS intending to launch COSMIC in the first half of 2023.
This Update outlines salient features of COSMIC and the proposed legislative framework.
Interpreting Arbitration Agreements: A Cautionary Tale for Commercial Parties
With the indiscriminate spread of COVID-19 and the corresponding prevalence of remote hearing tools across the world, it has never been easier for disputes to be heard in a foreign jurisdiction of one's choice. However, all that glisters is not gold, and it pays for parties to pay special attention to the drafting of arbitration agreements and, in particular, references to the arbitral seat.
In Civil Appeal No. 4 of 2019, the Court of Appeal of Brunei Darussalam ("BCA") considered an arbitration agreement that seemingly referenced both Brunei and Singapore as potential arbitral seats. Preferring a commonsensical approach, the BCA interpreted the arbitration agreement as having clearly established Brunei as the proper seat of the arbitration.
The BCA's decision goes beyond academic interest or discussion, and serves as a cautionary tale for commercial parties. In this Update, we look at the practical significance of the arbitral seat and how the wrong interpretation of an arbitration agreement may result in the uninformed party's waste of significant time and costs.
The Plaintiff shipowners in this case were successfully represented by Kendall Tan, Yip Li Ming, and Shaun Ou from Rajah & Tann Asia's Brunei desk.
Industry Consultation on the Licensing Framework for Cybersecurity Service Providers
The Cybersecurity Agency of Singapore ("CSA") has released its Industry Consultation Paper on the Licensing Framework for Cybersecurity Service Providers ("CSPs") under Part 5 of the Cybersecurity Act. While the rest of the Cybersecurity Act came into effect on 31 August 2018, the CSA intended for the licensing framework for CSPs to commence later after industry views on the implementation details have been gathered to enhance the practicality of the licensing framework.
The CSA has considered the feedback received on the proposed licensing framework during the public consultation on the Cybersecurity Bill held in 2017 in its drafting of Part 5 of the Cybersecurity Act. The current Industry Consultation is focused on the implementation details of the licensing framework. In this Update, we provide a background of the types and scope of licensable services and highlight the key proposed conditions of the licensing regime found in the Industry Consultation Paper.
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