Legal Updates

Legal Updates for September 2023

MAS Framework for Domestic Systemically Important Insurers (D-SIIs) to Take Effect on 1 Jan 2024
In October last year, the Monetary Authority of Singapore ("MAS") issued a Consultation Paper on its proposed framework for Domestic Systemically Important Insurers ("D-SIIs") which is intended to formalise and update its Framework for Impact and Risk Assessment of Financial Institutions to facilitate the annual impact assessment of insurers based on their size, interconnectedness, substitutability and complexity. On 21 September 2023, MAS issued its Response to feedback received on the Consultation Paper, and announced that it will be implementing the D-SII framework as proposed on 1 January 2024. Under the D-SII framework, MAS will formally designate insurers whose failures are assessed to have a significant impact on the financial system and broader economy in Singapore as D-SIIs. Four insurers are included in the inaugural list of D-SIIs: AIA Singapore Private Limited; Income Insurance Limited; Prudential Assurance Company Singapore (Pte) Limited; and The Great Eastern Life Assurance Company Limited.

This Update highlights the key aspects of the D-SII framework, and where relevant, salient responses from MAS on the feedback received on the Consultation Paper.

Exploring the Limits of Contractual Discretion - Court Considers Discretion to Withdraw Banking Facilities in Winding Up Application
In commercial contracts, it is not uncommon to find provisions allowing for contractual discretion on the part of one or more parties. While such provisions give a certain amount of decision-making power to the party that has been conferred the discretion, they are not without limit. These limits were explored in the Singapore High Court decision of Maybank Singapore Ltd v Synergy Global Resources Pte Ltd [2023] SGHC 258.

The Court highlighted that contractual discretion must be exercised within reasonable boundaries, and set out the applicable principles for determining the limits of such discretion. The decision thus provides an insight on how contractual discretion should be exercised in order to avoid challenges to validity.

Launch of Intangibles Disclosure Framework – Helping Enterprises Commercialise Intangibles
As the global economy becomes increasingly driven by innovation and intangibles, the value of an enterprise is no longer limited to tangible assets. Cognisant of this shift, Singapore has taken the step to develop and launch an intangibles-specific disclosure framework.

On 4 September 2023, the Accounting and Corporate Regulatory Authority and the Intellectual Property Office of Singapore jointly launched the Intangibles Disclosure Framework ("Framework"). The Framework is part of the Singapore IP Strategy 2030 and is a key step to helping enterprises commercialise their intangibles.

The launch of the new Framework follows a public consultation on the Proposed Intangibles Disclosure Framework that ran from 14 December 2022 to 28 February 2023. The finalised Framework incorporates revisions from the proposed draft to address feedback received during the public consultation on technical and implementation matters.

The Framework enables enterprises to disclose and communicate the value of intangibles, such as brand value, patents, registered designs, human capital or internally generated intangibles, by outlining the key principles that an enterprise should follow when disclosing their intangibles in a report. It details the four pillars for disclosure, the requirements of each pillar, and provides guidance on how enterprises can disclose their intangibles.

This Update provides a summary of the key features of the Framework and why enterprises may wish to consider adopting the Framework.

SGX RegCo Shares Key Elements for a Credible Climate Transition Plan
On 8 September 2023, the Singapore Exchange Regulation ("SGX RegCo") issued the "Regulator's Column: Developing and executing a credible climate transition plan", highlighting three key elements of developing, executing and disclosing a credible climate transition plan, which companies should adopt. In June 2023, the inaugural IFRS Sustainability Disclosure Standards ("ISSB Standards"), that required information about a company’s climate transition plan as part of its strategy, were published. SGX RegCo expects to consult on amendments to the SGX-ST Listing Rules to align sustainability reporting requirements with the ISSB Standards by the end of 2023. SGX RegCo aims to finalise its recommendations on mandatory climate reporting for SGX-ST equity issuers by 2024. To help you and your business with the process, this Update outlines the three key elements of developing, executing and disclosing a credible climate transition plan and action items as stated in the Regulator's Column.

Amendments to Carbon Pricing Act 2018 Come into Force on 1 Jan 2024
The Carbon Pricing Act 2018 ("CPA") provides for, among other things, requirements relating to registration as registered persons and reportable facilities, as well as, reporting and payment of tax in relation to greenhouse gas emissions. The Carbon Pricing (Amendment) Act 2022 which amends the CPA, will come into operation on 1 January 2024. This Update provides you with a summary outline of the upcoming key changes to the CPA and our comments on this development.

New Mechanisms, Shortened Timelines: SIAC Consults on Draft Seventh Edition of SIAC Rules
Since its establishment in 1991, the Singapore International Arbitration Centre ("SIAC") has emerged as a leading global arbitration institution. Ranked second among the world’s top five arbitral institutions, SIAC was also determined to be the most preferred arbitral institution in the Asia-Pacific in the 2021 Queen Mary University of London and White & Case International Arbitration Survey: Adapting Arbitration to a Changing World.

Part of SIAC's competitive edge is the SIAC Rules ("2016 Rules"), currently in their sixth edition, which provide a framework to ensure that SIAC arbitrations are administered in an efficient, cost-effective and flexible manner. Per the last revision, the 2016 Rules incorporated new procedures for multi-contract disputes and providing for the joinder of additional parties, among others.

To enhance the user experience and raise the bar on efficiency, expedition and cost-effectiveness, SIAC recently launched a public consultation on the draft 7th Edition of the SIAC Rules ("Draft Rules"). The consultation will run from 22 August 2023 to 21 November 2023. Key amendments proposed include:

1. the introduction of new mechanisms for preliminary determination, coordinated proceedings, and the use of a new online case management system;
2. the mandatory disclosure of third-party funding relationships and arrangements;
3. amendments to the rules on the constitution of the tribunal, including a new list procedure that the President of the SIAC Court may employ when appointing an arbitrator;
4. changes to the Emergency Arbitration procedure to improve its efficiency, such as shortened timelines;
5. changes to the Expedited Procedure, including the monetary limit on the amount in dispute; and
6. other general amendments, including information security measures and providing for virtual or hybrid hearings.

Ex-Treasurer of Singapore Chess Federation Wins Defamation Lawsuit and is Awarded S$120,000 in Damages
Mr Jasmin Nisban, formerly the Honorary Treasurer and elected Council member of the Singapore Chess Federation, recently won a defamation lawsuit against 21 defendants and was awarded S$120,000 in damages. In a 427-page judgment in the case of Jasmin Nisban v Chan Boon Siang and 20 Ors [2023] SGDC 158, District Judge Tan May Tee ruled on several noteworthy points of law, including whether a failure to dissociate from the defamatory statements would amount to a retrospective assumption of responsibility for the publication of defamatory statements, as well as the effect of prior settlements on the quantum of damages. This Update provides a summary of the decision and highlights the key points of law.

Mr Nisban was represented by Lau Kok Keng and Edina Lim of Rajah & Tann Singapore's Intellectual Property, Sports & Gaming Practice.

Online Criminal Harms Act Passed in Singapore
On 5 July 2023, the Singapore Parliament passed the Online Criminal Harms Act ("OCHA"). The OCHA is aimed at online content or activity which is criminal in nature, or which is used to facilitate or abet crimes. The OCHA allows directions to be issued to online service providers, other entities, or individuals, when specified criminal offences take place. The OCHA also requires designated online services to put in place systems and processes to counter scams and malicious cyber activities. This Update will provide an overview of the OCHA.

Guide to the Real Estate Industry in Asia
A keen understanding of the nature of real estate and the legal and regulatory issues related to this asset class is critical to working out any real estate deal. In this third edition of Rajah & Tann Asia's "Guide to the Real Estate Industry in Asia", we share with you a brief overview of certain key insights to the real estate industry in Cambodia, China, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam. Topics covered include the legal framework, types of real estate, ownership and tenure, taxes and other important aspects for investors of real estate to note.

A key pillar of our strength is our Rajah & Tann Asia network with offices in Cambodia, China, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam, as well as dedicated desks focusing on Japan and South Asia. With the most extensive legal network in Asia, our lawyers have a tight grasp of the local culture, business practices, and language not just within their own home countries, but in the other markets in which they frequently conduct cross-border deals as well. Our depth of transactional and regulatory experience allows us to advise clients strategically and creatively, from structuring to eventual execution and implementation of the transaction. It is important to seek specific legal advice in any corporate real estate matters, and our team would be pleased to discuss your specific objectives and requirements.