Legal Updates

Legal Updates for October 2022

New Code of Conduct for Buy Now, Pay Later Providers in Singapore to Take Effect on 1 Nov 2022

In recent years, the consumer credit landscape has seen a rise in "Buy Now Pay Later" ("BNPL") transactions. BNPL generally refers to a service/arrangement where a service provider partners with a merchant to allow customers to pay for purchases of goods/services on a deferred payment term, without compound interest, either by way of a single lump sum or fixed term instalments.

In response to concerns that BNPL may potentially cause excessive debt accumulation, an industry-led effort by the Singapore FinTech Association (SFA) and various industry players (under the guidance of the Monetary Authority of Singapore developed the BNPL Code of Conduct ("CoC") which was published on 20 October 2022, and takes effect on 1 November 2022.

This Update highlights key aspects of the CoC.

Can a Shareholder or Contributory Oppose a Creditor's Winding Up Application?
In the course of corporate insolvency, in order to progress from initiating a winding up application to the actual winding up of the company, the applicant must overcome any opposition filed against the winding up. In Atlas Equifin Pte Ltd v Electronic Cash and Payment Solutions (S) Pte Ltd [2022] SGHC 258, the Singapore High Court had the opportunity to consider the relatively unexplored issue of whether a shareholder/contributory has standing to oppose a creditor's winding up application.

The Court held that a shareholder/contributory does in fact have such standing. The Court also provided guidance on the factors it would consider in determining whether to grant a shareholder/contributory leave to oppose a winding up application. This Update provides a summary of the decision, highlighting the key point relating to the winding up process.

Of Evidence and Experts – High Court Dismisses Claim for Medical Negligence
In claims against healthcare professionals or institutions for medical negligence or other grounds of medical malpractice, the points of contention are often heavily dependent on questions of fact and issues of expert opinion. Factual evidence and expert opinion thus play a central role, as was aptly demonstrated in the Singapore High Court case of Chia Soo Kiang v Tan Tock Seng Hospital Pte Ltd [2022] SGHC 259. The case rested largely on the evidence of parties' factual and expert witnesses, with the Court having to navigate the opposing opinions of the expert witnesses.

The Court here dismissed a claim brought by the plaintiff against Tan Tock Seng Hospital and doctors for the death of his mother, in which the plaintiff alleged that the hospital’s employees had been negligent in mis-diagnosing her and failing to send her to the ICU/HDU, and had failed to obtain her consent before stopping certain medications. This Update provides a summary of the key points of the decision.

MAS Consults on Revised Restrictions on E-money Payment Accounts

On 18 October 2022, the Monetary Authority of Singapore ("MAS") published a consultation paper to seek feedback on proposed changes to the Payment Services Act 2019 ("PS Act") to:

1. Revise the limits on stock cap and flow cap ("Caps") imposed on personal payment accounts containing e-money ("e-wallet") issued by a Major Payment Institution ("MPI") to a user; and
2. Introduce a new exemption for a MPI with regard to its arrangements which contemplate "white-label" e-wallet account issuance from the requirement to aggregate all the e-money in the e-wallets issued to the same user for purposes of applying the Caps to the user.

The consultation is targeted at all licensees and regulated entities under the PS Act, financial institutions and other interested parties (including members of the public and payment service users). Feedback must be submitted to MAS by 25 November 2022.

SFA Consults on Proposed Regulation of Insect and Insect Products for Human Consumption and Animal Feed
Singapore currently does not permit the import and sale of insects as food for human consumption. Presently, only animal feed can contain insects, which is subject to restrictions under the Feeding Stuffs Act 1965. After examining the regulatory position for insects and insect products, the Singapore Food Agency ("SFA") proposes allowing the import, local farming and processing of insects and insect products for human consumption and animal feed, subject to specific conditions and requirements. SFA is conducting a consultation exercise to obtain feedback on the following proposed conditions and requirements:

• Import conditions, for insect and insect products for human consumption and animal feed imported into Singapore;
• Additional pre-licensing requirements, for local insect farming for human consumption and animal feed; and
• Additional pre-licensing requirements, for processing of insects for human consumption.

Singapore Entities to Observe Nominee Shareholders & Enhanced Registrable Controllers Requirements by 5 Dec 2022
On 4 October 2022, the Companies Act 1967 and the Limited Liability Partnerships Act 2005 were amended to introduce the following new requirements:

• Mandatory Requirement to Keep Register of Nominee Shareholders ("RONS"): Singapore companies and foreign companies registered in Singapore ("foreign companies") are now required to maintain a non-public RONS containing the prescribed particulars of the nominee shareholders and their nominators; and

• Enhanced Measures Where There is No Registrable Controller or the Entity is Unable to Identify Registrable Controller: Singapore companies, foreign companies or Singapore limited liability partnerships ("LLPs"), which have no registrable controller or are unable to identify the registrable controller, are required to identify individuals with executive control as their registrable controllers.

Singapore companies, foreign companies or LLPs (as the case may be) must comply with the above requirements by 5 December 2022.

MOH Proposes Enhancements to Healthcare Services Framework
The Ministry of Health has launched a Public Consultation on proposed amendments to the Healthcare Services Act ("HCSA"). The amendments introduce measures aimed at strengthening safeguards for patient safety and welfare, and are targeted for implementation in June 2023. The proposed enhancements are part of the progressive implementation of HCSA.

The Public Consultation is open from 12 October 2022 to 11 November 2022. Healthcare providers should familiarise themselves with the proposed amendments, which may affect their obligations and duties if and when implemented. Parties with any concerns or queries relating to the amendments should consider submitting their feedback under this Public Consultation. In this Update, we provide a summary of the key measures in the proposed amendments.

Amendments to Carbon Pricing Act Tabled in Parliament
The carbon tax regime in Singapore is governed under the Carbon Pricing Act 2018 ("CPA") that provides for, among other things, requirements relating to registration, reporting and payment of tax in relation to greenhouse gas emissions. On 3 October 2022, the Carbon Pricing (Amendment) Bill ("Bill") was tabled for First Reading in Parliament. The Bill seeks to amend the CPA in the following key aspects:

• Revising the carbon tax rate and carbon price;
• Providing for the grant of allowances for eligible taxable facilities to reduce carbon tax;
• Renaming "carbon credits" as "fixed-price carbon credits", and providing for the surrender of eligible international carbon credits in place of fixed-price carbon credits for the purposes of paying the carbon tax. There are also provisions to establish the International Carbon Credits Registry and international carbon credit registry account, as well as for various related matters; and
• Revising registration and emissions reporting obligations (in particular, where there has been a transfer of operational control over a business facility), and the basis for liability for carbon tax.

SIC's Regime for Unlisted Public Companies to Obtain a Waiver from Singapore Code on Take-Overs and Mergers
On 7 October 2022, the Securities Industry Council issued the "Practice Statement on the Waiver of the Application of the Singapore Code on Take-overs and Mergers ("Code") to Unlisted Public Companies" ("Practice Statement").

The Code applies to, among others, an unlisted public company incorporated in Singapore with more than 50 shareholders and net tangible assets of S$5 million or more ("Unlisted Public Company"). Unlisted Public Companies may now apply to SIC for a waiver from the application of the Code in accordance with the requirements set out in the Practice Statement ("Code Waiver"). For unlisted public companies which do not have more than 50 shareholders and net tangible assets of S$5 million or more, but if they would soon fall under the ambit of the Code, such unlisted public companies may also apply for a Code Waiver in advance.

This Update outlines how eligible Unlisted Public Companies can apply for a Code Waiver.

Measures to Enhance Online Safety – Singapore Introduces New Legislation
Singapore has been making concerted efforts towards enhancing the safety of digital spaces for Singapore users, particularly for children. The Ministry of Communications and Information ("MCI") had, earlier in 2022, given an indication of what changes and enhancements may be expected in the digital regulatory and compliance framework, including the introduction of codes of practice for online platforms to protect Singaporeans against harmful online content.

• From 13 July 2022 to 10 August 2022, MCI conducted a Public Consultation on Proposed Measures to Enhance Online Safety for Users in Singapore ("Public Consultation"). On 29 September 2022, MCI released a summary of its responses to the feedback received from the Public Consultation, giving further indication of the direction that the proposed measures may take.
• On 3 October 2022, the Online Safety (Miscellaneous Amendments) Bill ("Bill") was introduced in Parliament. If passed, the Bill will empower the Infocomm Media Development Authority to better regulate online communication services accessible by Singapore end-users and give effect to the proposed measures, including the authority to issue directions to block egregious content and to issue online Codes of Practice.

IMDA and MAS Consult on Proposed New Guidelines, Fee Structure etc. to Enhance Participation in SGQR
From 27 September 2022 to 28 October 2022, the InfoComm Media Development Authority ("IMDA") and the Monetary Authority of Singapore ("MAS") are conducting a consultation exercise to obtain feedback on their proposals to strengthen participation in the Singapore Quick Response Code Scheme ("SGQR"). The main proposals are:

• To introduce a set of guidelines laying out MAS' expectations on all Relevant Merchant Acquirers who participate in SGQR. A "Relevant Merchant Acquirer" refers to any major payment institution or any exempt payment service provider under the Payment Services Act 2019 that provides merchant acquisition service to any merchant through a static QR code at that merchant's physical place of business;
• To introduce a fee structure model for SGQR Members; and
• For the Banking Computer Services Private Limited to conduct regular batched onboarding exercises for prospective merchant acquirers.

The consultation is targeted at all Relevant Merchant Acquirers, as well as applicants for a major payment institution licence to provide a merchant acquisition service. This Update outlines the key points of the proposals.