Legal Updates for April 2023Singapore Conducts World's First Live Electronic Transferable Record Cross-Border Trade
Singapore has taken a position as a regional leader in trade digitalisation, with numerous programmes and initiatives directed at achieving effective implementation. In line with this, the Infocomm Media Development Authority ("IMDA") has announced that it has successfully executed a live shipment from Singapore to Thailand during the first quarter of 2023. This fully paperless, live cross-border trade was conducted using an Electronic Transferable Record ("ETR"), that is functionally equivalent to a paper Bill of Lading using Singapore's TradeTrust framework.
This is the world's first ETR cross-border trade, and demonstrates Singapore's championing of the pushing of boundaries of digitalisation for global trade. Parties involved in international trade should be aware of Singapore's growing capabilities in this regard, and the development of trade options that they may be able to take advantage of in the near future. This Update provides an overview of the landmark ETR cross-border trade conducted by IMDA.
Ratification after Litigation?
In Asidokona Mining Resources Pte Ltd & Anor v Alternative Advisors Investments Pte Ltd [2023] SGHC(A) 6, the Appellate Division of the High Court allowed an appeal in a case that raised "several difficult questions". The Appellate Division considered the law as to when a principal may ratify a contract purportedly entered on its behalf. The three important issues considered by the Court were:
- Can a principal ratify a contract (in this case, a loan agreement) when the alleged agent did not even purport to act on behalf of the principal?
- Can the principal ratify when it cannot show that it has performed the contract (in this case, a loan disbursement)?
- Where legal action has been commenced on a contract that has not yet been ratified, can ratification thereafter retrospectively remedy the cause of action and so provide legal basis for the action (the "Post-Action Ratification Issue")?
The Appellate Division answered all these three issues in the negative. The Post-Action Ratification Issue was an especially difficult question of law analysed by the Court. Ultimately, it accepted the appellants' (principal's) case on that issue and atypically endorsed a proposition of law derived from an American case.
Gregory Vijayendran SC, assisted by Lester Chua, Tomoyuki Ban, and Kevin Wong from Rajah & Tann Singapore LLP, was instructed Counsel for the successful appellant in the appeal.
Government Increases Additional Buyer's Stamp Duty Rates to Promote a Sustainable Property Market
On 26 April 2023, the Ministry of Finance, Ministry of National Development, and Monetary Authority of Singapore jointly announced in a press release the increase in Additional Buyer's Stamp Duty ("ABSD") rates to "promote a sustainable property market". The new measures have since taken effect from (and including) 27 April 2023. In this Update, we provide a summary of the key changes to ABSD rates in the new measures.
Regional Competition Bites Q1 2023
This Rajah & Tann Regional Competition Bites provides an overview of the key competition updates in South-east Asia during the period of January to March 2023.
A key macro trend across the region is the introduction of new merger regimes or enhancing existing regimes so as to capture a wider range of mergers. Cambodia has now introduced merger filing thresholds and mergers will have to be filed with the regulator come September 2023. Vietnam and Thailand have been reviewing an increasing number of mergers, with Vietnam seeking to review even foreign-to-foreign mergers. Indonesia has bucked the trend a little, providing a breather to businesses by shifting from a single nexus to a double nexus requirement, while Philippines has raised its notification thresholds. What these developments spell for businesses is that Southeast Asia is a region that can no longer be ignored from a merger control review perspective. Even in Singapore, which has a voluntary regime, the regulator takes the position that if thresholds are crossed, a notification is necessary.
Separately, fighting inflation and cost of living issues continue to be a focus area. Regulators in Indonesia, Thailand and Philippines have opened cartel investigations products involving daily essentials such as onions and chicken eggs, while the Malaysian regulator is working closely to support the Ministry of Domestic Trade and Cost of Living in tackling these issues.
Another key area where focus continues is in all things data, digital, and e-commerce. Several of the regulators have reiterated that this is an area of priority, and with some opening investigations in the area. Tech is also important for the regulators as they look to enhance their internal capabilities to handle more complex mergers and investigations.
On regulators, the Vietnam Competition Commission ("VCC") has finally been properly constituted and empowered to take enforcement action. VCC is now responsible for all competition matters, ranging from investigations to enforcement and merger control. We expect stronger competition law enforcement and quicker review of merger cases in Vietnam moving forward.
Developments in the region remain dynamic and the Rajah & Tann Asia Team is very much in the thick of many of the developments and on-going matters. Please reach out to us if you wish to further discuss these developments.
ASEAN Taxonomy V2: Enabling a Just Transition Towards Sustainable Finance Adoption by ASEAN
The ASEAN Taxonomy for Sustainable Finance Version 2 ("ASEAN Taxonomy V2") was released on 27 March 2023 by the ASEAN Taxonomy Board. The release follows extensive stakeholder consultations upon the earlier released ASEAN Taxonomy for Sustainable Finance Version 1. A crucial addition to the ASEAN Taxonomy V2 is the inclusion of social aspects as the third essential criteria, adding a holistic dimension to the taxonomy principles. Other additions include the completion of the Foundation Framework, building upon the broad framework laid out previously, and also finalisation of the details in the initial Plus Standard.
The ASEAN Taxonomy seeks to enable a just transition towards sustainable finance adoption by ASEAN Member States ("AMS") by providing a common and credible framework for AMS and their stakeholders to assess and classify sustainable economic activities. Having an ASEAN Taxonomy will attract more capital flow into the region to help AMS and their stakeholders to transition to a low carbon economy and achieve AMS' climate change goals.
This Update provides a brief overview of the ASEAN Taxonomy V2 and what it means for AMS and businesses in the region.
Updates for Employers of Foreign Workforce: COMPASS Bonus Criteria, Enhanced Mandatory Medical Insurance Coverage
In March 2022, the Ministry of Manpower ("MOM") announced a slew of changes relating to Singapore's foreign workforce. Key among them was the introduction of the Complementarity Assessment ("COMPASS") framework for Employment Pass ("EP") applications. Under the points-based framework, EP applicants will be required to score a total of 40 points under its four foundational criteria and two bonus criteria. The COMPASS framework will take effect on 1 September 2023 for new EP applications, and on 1 September 2024 for renewal EP applications.
MOM also announced that the mandatory medical insurance ("MI") coverage for Work Permit (including migrant domestic workers) and S Pass holders (collectively "migrant workers") would be enhanced. As employers are responsible for the medical bills of their migrant workers, this move aimed to better protect employers from having to bear large unexpected medical bills.
On 31 March 2023, MOM provided further details on the two bonus criteria under the COMPASS framework, and further announced a phased approach to implementing the enhanced mandatory MI coverage.
In this Update, we elaborate on these two developments.
European Commission Amends Article 102 TFEU Enforcement Priorities
On 27 March 2023, the European Commission ("EC") published a Communication and Annex, amending its 2008 Guidance on enforcement priorities concerning exclusionary abuses ("Guidance on Enforcement Priorities"). This came in conjunction with a Call for Evidence to seek feedback on the proposed introduction of Guidelines on exclusionary abuses of dominance ("Proposed Guidelines") by the EC. These Proposed Guidelines are slated to be released for public consultation by mid-2024 and the EC is seeking to adopt them by end 2025.
This Update summarises key changes to the Guidelines on Enforcement Priorities.
|
