Legal Updates for May 2020
Employers Required to Notify Salary Reduction Measures
On 29 May 2020, the Employment (Returns on Salary Reduction Measures) Notification 2020 ("Notification") came into effect. The Notification requires any employer with more than 10 employees who intends to reduce operating expenses by implementing measures that result in the reduction of salary of any employee to submit a return to the Commissioner for Labour in a prescribed form within the prescribed period.
The Ministry of Manpower has earlier issued an advisory titled "Advisory on salary and leave arrangements during Circuit Breaker" that among other things, set out notification requirements for cost-saving measures with salary reductions during the circuit breaker from 7 April 2020 to 1 June 2020. The Notification applies to employers in Singapore with effect from 29 May 2020.
This Update outlines the requirements in the Notification.
COVID-19: Employers' Road to Reopening
The global economy has taken a staggering hit following the onset of the COVID-19 pandemic. Country after country has announced full lockdowns or issued a multitude of orders intended to limit the movement of people.
As the pandemic shows signs of being brought under control in some countries, governments have begun looking to the future, cautiously seeking to restart their economies without triggering another outbreak. With ten member firms throughout Southeast Asia, Rajah & Tann Asia is uniquely positioned to address queries that employers and businesses with cross-border dealings within this region of high economic interconnectivity and interdependency may have, particularly with regard to the anticipated reopening of businesses.
Our member firms hail from the jurisdictions of Cambodia, China, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. This COVID-19 Publication brings together our lawyers from all member firms to answer the following questions:
- Is your jurisdiction under some form of movement control restrictions, whether full or partial ("Restrictions")? If so, what Restrictions are in place?
- Are businesses open and functioning during these Restrictions?
- If businesses are not allowed to open, how long is this situation expected to last?
- What conditions need to be in place to allow businesses to open and continue to function, and what are employers’ legal obligations in this situation?
- What is the risk to employers who reopen their premises for business? What additional measures should employers take to manage their liabilities?
Payment Token Derivatives on Approved Exchanges Now Regulated under SFA and Safeguards for Retail Investors
On 18 May 2020, the Securities and Futures (Prescribed Underlying Thing) Regulations 2020 ("Regulations") came into force to expand the regulatory scope under the Securities and Futures Act ("SFA") to cover derivatives contracts that reference payment tokens as underlying assets ("Payment Token Derivatives") offered on an approved exchange in Singapore.
This follows from positive feedback received in response to the "Consultation Paper on Proposed Regulatory Approach for Derivatives Contracts on Payment Tokens" issued by the Monetary Authority of Singapore ("MAS") on 20 November 2019. The consultation exercise which ended on 20 December 2019 sought comments on whether Payment Token Derivatives should be regulated under the SFA and if so, the additional measures to safeguard retail investors. On 15 May 2020, MAS issued its "Response to Feedback Received on the Proposed Regulatory Approach for Derivatives Contracts on Payment Tokens".
This Update highlights the scope of the Payment Token Derivatives regulated under the SFA and the measures to safeguard retail investors.
COVID-19 & Insurance: Coverage Issues in a Pandemic World
It has been only two months since the World Health Organization declared the COVID-19 outbreak a pandemic, but the world has probably seen only a fraction of the likely long-lasting economic and social impacts of the pandemic. Whilst various social distancing and lockdown restrictions imposed across the world have slowed down the rate of outbreaks, myriad financial losses to both corporate entities and individuals have already skyrocketed. Many affected persons are likely to turn to and eagerly expect their existing insurance coverage to defray some or all of these losses.
This Update discusses the following potentially difficult coverage issues under some of such existing (and pre COVID-19) commercial insurance policies:
- Loss of profit/revenue and business interruption;
- Event cancellation;
- Credit insurance;
- Public liability; and
- Management liability.
Singapore Enhances Legal Framework for Maritime Casualty Claims
As a global maritime hub, Singapore stands as one of the key jurisdictions for admiralty and shipping dispute resolution. On this front, the Singapore government has pushed ahead with new laws to further enhance the legal framework.
These developments mean that Singapore will be better able to hear salvage claims and allow enforcement of such claims through ship arrest. They also serve to increase the limits of liability for claims against shipowners. Rajah & Tann Singapore LLP's Shipping and International Trade Practice is firmly established in the field of maritime disputes, and parties seeking to better understand these new developments or to take advantage of the country's enhanced dispute resolution capabilities should feel free to approach the team for consultation.
- The introduction of legislative amendments to support Singapore's adoption of the International Convention on Salvage
- The implementation of the 1996 Protocol to the Convention on Limitation of Liability for Maritime Claims under Singapore law.
In this Update, we look at the key aspects of the recent legislative amendments and their potential impact on the shipping industry.
Contracts between Housing Developers and Buyers Added to Scope of COVID-19 Temporary Relief
an option given by a housing developer to an intending property purchaser, and/or
a sale and purchase agreement between a housing developer and a property purchaser
On 13 May 2020, the Government announced amendments to the COVID-19 (Temporary Measures) Act and the COVID-19 (Temporary Measures) (Temporary Relief for Inability to Perform Contracts) Regulations 2020 (collectively, "Updated Regulations"). The new amendments allow property purchasers of a unit in a housing accommodation from housing developers to obtain temporary relief for their inability to perform their obligations under:
This Update highlights the key features and implications of the Updated Regulations.
FinTech Solidarity Grant & MAS Support Package to Aid FinTech Firms/FIs Financially
On 13 May 2020, the Monetary Authority of Singapore ("MAS"), Singapore FinTech Association, AMTD Group and AMTD Foundation launched a S$6 million MAS-SFA-AMTD FinTech Solidarity Grant ("Grant") to help Singapore-based FinTech firms weather the storm caused by the COVID-19 pandemic. Eligible FinTech firms may apply for the Grant from 18 May 2020 to 31 December 2021.
The Grant complements the S$125 million support package announced by MAS on 8 April 2020 ("Support Package") to sustain and strengthen capabilities in the financial services and FinTech sectors amid the current economic slump. The Support Package took effect from 8 April 2020.
This Update highlights the key features of the Grant and the Support Package for FinTech firms in Singapore.
Regulations for Property Owners on Passing on Tax Rebates to Tenants
In response to the commercial difficulties caused by the COVID-19 pandemic, the Resilience Budget was announced to grant property tax rebates for qualifying properties for the period of 1 Jan 2020 to 31 Dec 2020. While the owners of such properties would receive the rebate, owners are expected to pass on the benefit of the rebate to their tenants, if any.
On 13 May 2020, the COVID-19 (Temporary Measures) (Transfer of Benefit of Property Tax Remission) Regulations 2020 ("Regulations") came into operation. The Regulations provide further details on how owners are to pass on the rebate, including: (i) the formulae for determining the prescribed amount of benefit that must be passed on to the tenant; (ii) the prescribed manner and time for passing on the benefit; and (iii) the information to be provided to the tenant. In this Update, we highlight the key points of the Regulations that property owners should take note of.
COVID-19 and M&A: Key Considerations in a Time of Global Uncertainty
The ongoing COVID-19 pandemic has caused widespread uncertainty, and the full impact on the global economy remains to be seen. Understandably, this would lead to questions surrounding the viability and validity of, and impact on, transactions, whether contemplated, ongoing or completed.
As M&A activity continues against the backdrop of the COVID-19 pandemic, there are certain key considerations that should be borne in mind by the parties.
This Update aims to highlight these considerations as well as steps that can be taken to manage the risks caused or aggravated by COVID-19.
Public Consultation on the Draft Data Protection (Amendment) Bill
On 14 May 2020, the Ministry of Communications and Information ("MCI") and the Personal Data Protection Commission ("PDPC") jointly issued a public consultation paper to seek comments on the draft Personal Data Protection (Amendment) Bill ("PDP (Amendment) Bill"). The consultation closes on 28 May 2020.
The draft PDP (Amendment) Bill sets out the proposed amendments to the Personal Data Protection Act 2012 ("PDPA"). These amendments are precipitated by the global shift towards a digitised economy, and the exponential increase in the need for and usage of personal data in business transactions and growing threat of data breaches. The amendments are intended to ensure that the PDPA keeps pace with the changing circumstances, while providing for effective protection of personal data in the digital economy.
In this Update, we highlight the key amendments to the PDPA that organisations should take note of. Please note that this update is not a comprehensive list of all the proposed changes to the PDPA pursuant to the PDP (Amendment) Bill. The full Public Consultation Document and the draft PDP (Amendment) Bill may be accessed height="480">https://eoasis.rajahtann.com/eoasis/lu/pdf/2019_10_CCCS_Price_Transparency.pdf ">here
Navigating Construction and Insolvency: SAL Report on SOPA and Corporate Insolvency
The Building and Construction Industry Security of Payment Act ("SOPA") regime is widely used across the construction industry. However, its interaction with the corporate insolvency and restructuring framework has been less than clear, resulting in potential insolvency-related issues arising from SOPA adjudication. The Singapore Academy of Law thus convened the SOPA-Insolvency Law Sub-Committee ("Committee") to explore these issues and to recommend subsequent steps where appropriate. In April 2020, the Committee issued its Report on the Building and Construction Industry Security of Payment Act and Corporate Insolvency and Restructuring ("Report").This Updates looks at the concerns identified under these issues and the Committee's analysis and recommendations in the Report.
Resuming Workplace Operations: Safe Management Measures
Following the Multi-Ministry Taskforce's announcement that the circuit breaker measures would be progressively-eased over the coming weeks, the Tripartite Partners have issued Safe Management Measures on 9 May 2020 ("Measures") for employers to establish a system to ensure a safe work environment and minimise the risks of further outbreaks. The Measures issued by the Tripartite Partners must be implemented by employers which are allowed to resume operations, including employers allowed to operate during this period and those permitted to do so after 12 May 2020. For employers resuming operations after the end of the circuit breaker period, the Measures must be in place before they can resume operations at the workplace. An outline of the Measures is set out in this update.
SGX to Remove Minimum Trading Price Framework and Refine Criteria for Exiting Financial Watch-List from 1 June 2020
On 11 May 2020, the Singapore Exchange Regulation ("SGX RegCo") announced that with effect from 1 June 2020:
This follows a public consultation exercise conducted by SGX RegCo from 28 November 2019 to 27 December 2019 seeking comments on proposals relating to the above changes
- The minimum trading price ("MTP") rules for issuers listed on the SGX-ST Mainboard will be removed; and
- The criteria for exiting the Singapore Exchange Limited ("SGX") financial watch-list will be refined.
This Update highlights the removal of the MTP rules and the refinement of the criteria for exiting the SGX financial watch-list.
Does the "Dual Railroad Track System" Still Exist under the SOP Act?
The Building and Construction Industry Security of Payment Act ("SOP Act") seeks to alleviate cash flow problems in the construction industry. It sets out a mechanism by which contractors can make progress payment claims, and employers must either pay the claimed amount or, in the case where the amount is disputed, file a payment response detailing the reasons for their differences and objections to the claim, jurisdictional or otherwise. The Court's authoritative guidance as to the operation of the SOP Act and the scope of its previous decisions is important to both stakeholders in the construction industry and legal practitioners alike.
In the recent case of Shimizu Corporation v Stargood Construction Pte Ltd  SGCA 3736, the Court of Appeal had the opportunity to deal with the issue of whether progress payment claims under the SOP Act can still be submitted following the termination of the contract. It found that the SOP Act did not provide an independent right to payment; instead, a claimant must establish its right to payment pursuant to the contract itself. The "dual railroad track system" argument - whereby a party possessed a statutory entitlement to a progress payment that was separate and distinct from a party's contractual entitlement to the same – was conclusively rejected
The apex court's decision reaffirms the approach taken in the case of Far East Square Pte Ltd v Yau Lee Construction (Singapore) Pte Ltd  2 SLR 189 ("Far East") that "in order to determine a contractor's entitlement to submit payment claims under the [SOP Act], the court must necessarily have regard to the provisions of the underlying construction contract".
Temporary Exemption to Allow Electronic Dissemination of Offer Documents for Rights Issues and Take-over or Merger Transactions
Due to the COVID-19 outbreak, restrictions imposed on the operations and manpower of printers and mailing houses have posed challenges to the mass production of hard copy documents including documents in relation to rights issues and take-over or merger transactions. Various laws and rules require hard copies of these documents to be despatched.
In response, on 6 May 2020, the Monetary Authority of Singapore, the Securities Industry Council and the Singapore Exchange Regulation jointly announced temporary measures giving issuers listed on SGX-ST and parties involved in rights issues and take-over or merger transactions the option to disseminate an electronic version of the relevant offer documents through publication on SGXNET and their corporate websites.
These temporary measures take effect from 6 May 2020 to 30 September 2020.
This Update highlights the conditions for relying on the temporary measures.
Singapore Set to Continue with Nationwide 5G Rollout
On 29 April 2020, the Singapore Infocomm Media Development Authority ("IMDA") announced the results of the Call for Proposal to facilitate the rollout of 5G networks. The winning proposals came from Singtel Mobile Singapore Pte Ltd and a Joint-Venture Consortium formed by StarHub Mobile Pte Ltd and M1 Limited. IMDA also confirmed that Singapore would forge ahead with its efforts to roll out nationwide 5G networks. In this Update, we look at the proposed facets of the 5G implementation process, including the licensing framework, the timelines, and the relevant safeguards.
Temporary Relief Measures against Disruptions Caused by COVID-19 and 'Circuit Breaker' Measures for Eligible Property Developers & Married Couples
On 6 May 2020, the Singapore Government announced temporary relief measures for eligible property developers and married couples affected by the COVID-19 'circuit breaker' measures. Eligible property developers will be granted six months' extension of time to comply with the regulatory and authority-imposed timelines / deadlines, including completing the construction of the development projects and selling the units being built, while eligible married couples purchasing a second residential property will be granted an additional six months to sell their first residential property so as to be eligible for a remission of the Additional Buyer’s Stamp Duty paid on the second property. In this Update, we look at the key elements of these temporary relief measures, as well as their efficacy for property developers.
Landmark Court of Appeal Decisions on Resolving Conflict between Winding-up and Arbitration
The interaction between the insolvency regime and the arbitration framework has been a subject of much discussion before the Singapore courts. In a series of landmark decisions, the Singapore Court of Appeal recently clarified a crucial question: When a dispute is meant to be arbitrated under an arbitration agreement but the creditor company instead applies to wind up the debtor company, what must the debtor company establish before it can successfully stay or dismiss the winding-up proceedings?
This question was argued before the Singapore High Court and the Singapore Court of Appeal in three recent cases in which Rajah & Tann Singapore's dispute resolution team delivered wins for their respective clients:
- AnAn Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Company)  SGCA 33 ("AnAn v VTB"), in which the Appellant was successfully represented by Lee Eng Beng SC, Chew Xiang and Torsten Cheong;
- BWG v BWF  SGCA 36, in which the Respondent was successfully represented by Kendall Tan, Ting Yong Hong, Aleksandar Georgiev, and Darren Lim; and
- BW Umuroa Pte Ltd v Tamarind Resources Pte Ltd  SGHC 71, in which the Plaintiff was successfully represented by Sim Kwan Kiat and Ho Zi Wei.
Court of Appeal Sets Out Test for Compensation in Breaches of Fiduciary Duty
Where a fiduciary has breached their duty to their principal, they may be held liable for the losses suffered by the principal. However, in order for such compensation to be awarded, who has to prove that the breach caused the loss? The law in this area was previously unsettled, with different approaches adopted in various Singapore High Court decisions. In Sim Poh Ping v Winsta Holding Pte Ltd and another  SGCA 35, the Court of Appeal determined the applicable test of causation for non-custodial breaches of fiduciary duty. The plaintiffs in this case were successfully represented by Lee Eng Beng SC, Mark Cheng, Chew Xiang, Ho Zi Wei and Darren Lim of Rajah & Tann Singapore LLP.
Conducting Meetings Relating to Collective Sale Amid COVID-19
On 27 April 2020, the COVID-19 (Temporary Measures) (Alternative Arrangements for Meetings for Management Corporations, Subsidiary Management Corporations and Collective Sale Committees) Order 2020 ("Order") was issued to provide for alternative arrangements for the following types of meetings to be conducted by electronic means:
There are difficulties in conducting general meetings for collective sales (commonly known as en bloc sales) and meetings of CSCs in a manner prescribed in the Land Titles (Strata) Act while the control and elevated safe distancing measures are in place to prevent the spread of COVID-19.
- General meetings of management corporations ("MCs");
- General meetings of subsidiary management corporations; and
- Meetings of collective sale committees ("CSCs").
The Order, which is deemed to be in force from 27 March 2020, allows such meetings to be conducted, wholly or partially, by electronic means from 27 March 2020 to 30 September 2020. With the exception of meetings of CSCs, they may also be deferred to a date no later than 30 September 2020.
This Update focuses on the key issues to note for holding a general meeting of a MC for the purpose of a collective sale and a CSC meeting by electronic means pursuant to the alternative arrangements set out in the Order.