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Legal Updates

Legal Updates for November 2022

Key Merger Control Developments in Southeast Asia in Q4 2022
We highlight in this Update some key merger control developments in the Southeast Asia region in Q4 2022, notably in the Philippines, Thailand and Singapore.

  • PCC releases Draft Non-Horizontal Merger Guidelines
  • NBTC grants Conditional Approval for True/DTAC Merger
  • CCCS Clears Proposed Acquisition by ContiTech Global Holding Netherlands B.V. of Trelleborg AB's Printing Solutions Business
  • Active Merger Review in Singapore

SGX RegCo Publishes Cyber Incident Response Guide for SGX-Listed Companies
In October 2022, the Singapore Exchange Regulation ("SGX RegCo") published the Cyber Incident Response Guide ("Guide") to provide guidance on the best practices which are pertinent to helping issuers listed on the Singapore Exchange Securities Trading Limited as well as the SGX members (collectively "Companies") strengthen their cyber risk management strategies and practices. The Guide aims to set out considerations and good practices for Companies to refer to in preparing and operationalising their own cyber incident response plans, and adapting these considerations and good practices as necessary to meet their own requirements.

Although the Guide does not aim to prescribe a set of standards that all Companies should adopt, it is an indication of the impact a cyber incident can have on Companies and provides a perspective on the emphasis of SGX RegCo on Companies' preparedness and response to cyber risks and incidents. Companies should promptly assess whether their existing internal policies and plans deal with cyber risks and cyber incidents, and if so, whether such policies and plans meet the SGX RegCo's expectations set out in the Guide.

MAS Seeks Comments on Changes to Insurance Act and Regulations Governing Insurance Intermediaries
On 4 November 2022, the Monetary Authority of Singapore ("MAS") issued the "Consultation Paper on Amendments to the Insurance Act and the Insurance (Intermediaries) Regulations" containing its proposals to amend:

  1. the Insurance Act 1966 ("IA") to achieve four main objectives: (1) enhance MAS' supervisory powers; (2) clarify MAS' existing policy intent; (3) align with other IA provisions or MAS-administered Acts; and (4) reflect changes in policy intent; and

  2. the Insurance (Intermediaries) Regulations ("IIR") to align the regulations governing insurance brokers with other MAS-administered regulations.
The consultation ends on 13 January 2023.

This Update outlines certain key proposed changes to the IA and IRR.

Regulation and Licensing of Collective Management Organisations - Public Consultation on Proposed Draft Regulations
The Ministry of Law and the Intellectual Property Office of Singapore are conducting a Public Consultation on the proposed draft Copyright (Collective Management Organisations) Regulations 2023 ("Regulations"). The Public Consultation will be held from 7 November 2022 to 4 December 2022.

The draft Regulations implement proposals made at an earlier consultation in 2020 and take in the feedback received on those proposals. While Collective Management Organisations ("CMOs") have thus far not been subject to substantive regulation, the draft Regulations set out a series of licence conditions which CMOs must comply with, which address issues relating to members' rights and dispute resolution between the CMO and its members and users. This Update highlights the key elements of the draft Regulations in this Public Consultation.

How to Protect Your NFTs – Singapore Court Grants Landmark Injunction Over NFT

Non-fungible tokens ("NFTs") are an increasingly ubiquitous digital asset. But as with all changes in technology, questions arise as to whether the existing laws are capable of accommodating its unique features – in particular, whether the law affords effective protection over ownership of NFTs.

In Janesh s/o Rajkumar v Unknown Person [2022] SGHC 264, the Singapore High Court issued a landmark decision granting an injunction over a Bored Ape NFT. In reaching its decision, the Court considered a slew of key issues – Do NFTs give rise to proprietary rights? Can an injunction be granted against a person known only by their pseudonym, and how should summons be served on such persons? When does the Court have jurisdiction over the matter? This Update provides a summary of the Court's decision and its answers to these questions.

Ordering the Production of Documents in Winding Up – Court Confirms Extra-Territorial Effect of Order

When a company is being wound up or is in judicial management, the Court may order the production of documents or information relating to the company, as well as the attendance of the company's officers and the people holding the relevant books and records. In Xu Wei Dong v Midas Holdings Ltd [2022] SGHC 268, the Singapore High Court confirmed that this power applies both locally and extra-territorially in respect of persons and documents located abroad. The Court also set out the factors it would consider in determining whether to grant such an order.

This Update provides a summary of the key points of the decision.

Shipping Law Updates

The Shipping Law Updates is a publication by our Regional Shipping Group which marshals legal expertise, industry insight, and commercial acumen in the fields of maritime and trade from the diverse talent pool of specialist lawyers at the Rajah & Tann Asia offices. The publication provides a snapshot of the key legal, regulatory, case law and industry developments in the region that have an impact on the shipping industry and your operations.

In this issue, we consider the occurrence of supply disruptions in commodities trading and the contractual remedies available to affected parties along the supply chain – specifically, we take a look at the example of the Indonesia oil export ban earlier this year and the options available under the Palm Oil Refiners Association of Malaysia contracts. On the topic of international trade, we also examine the relationship between the sale contract, the carriage contract and the financing arrangements in the context of a recent judgment of Malaysia’s apex court in Malayan Banking Berhad v Punjab National Bank[2022] 4 MLJ 758 (Federal Court).

Moving on to topics involving vessels and crew, we discuss the statutory regimes for the payment of compensation to employees for workplace injury and how it interacts with private settlements, against the backdrop of the recent Singapore High Court decision involving a crewmember aboard a vessel in M.T.M. Ship Management Pte Ltd v Devaswarupa & 3 Ors [2022] SGHC 178. We also take a look at the Bombay High Court's decision The Swedish Club v V8 Pool Inc. and Other. (Commercial Appeal Nos. 108 and 111 of 2021), which considered whether crew wages incurred post-arrest could be ranked as Sheriff's (or marshal's) expenses, and whether recoupment of such wages and Maritime Labour Convention expenditure by a P & I club are also to be treated as Sheriff's expenses.

SGX RegCo Proposes to Mandate Tenure Limit on IDs & Disclosure of Directors' and CEOs' Remuneration Details
The Singapore Exchange Regulation (SGX RegCo) is conducting a public consultation on the following changes to institute better corporate governance practices relating to board renewal and disclosure of remuneration of directors and chief executive officers ("CEOs"):

  • Introducing a mandatory nine-year tenure limit on independent directors for issuers listed on the Singapore Exchange Securities Trading Limited ("SGX-ST");
  • Mandating disclosure of remuneration details of each individual director and the CEO of issuers listed on the SGX-ST.
The public consultation ends on 17 November 2022. Our Update provides a summary of these two proposals.

MAS Consults on Enhanced Regulatory Measures for Digital Payment Token Services and Regulatory Approach for Stablecoins
The Monetary Authority of Singapore ("MAS") is seeking feedback on two consultation papers which set out proposed enhanced regulatory measures for digital payment token ("DPT") services under the Payment Services Act 2019 and the regulatory approach for stablecoins in Singapore.

Cryptocurrency speculation activities among retail investors were on an upward trend until the recent crypto markets shake-up, which saw the collapse of TerraUSD (a stablecoin) and the value of popular cryptocurrencies like Bitcoin and Ether plunging steeply.

To reduce the risk of consumer harm in cryptocurrency trading, MAS issued the "Consultation Paper on Proposed Regulatory Measures for Digital Payment Token Services" to seek comments on its proposals to introduce consumer access measures for retail customers of DPT service providers, business conduct measures and enhanced measures to manage technology and cyber risks for DPT service providers.

Despite the negative news associated with some stablecoins lately, MAS is of the view that, unlike cryptocurrencies, stablecoins can be a credible digital medium of exchange to facilitate transactions in a digital asset ecosystem. MAS intends to develop an innovative and responsible digital asset ecosystem in Singapore by leveraging on the innovative combination of tokenisation and distributed ledgers. Against this backdrop, MAS issued the "Consultation Paper on Proposed Regulatory Approach for Stablecoin-Related Activities" to seek comments on its regulatory approach on stablecoin-related issuance and intermediation activities.

Comments on these two MAS consultation papers must be submitted to MAS by 21 December 2022.

This Update highlights the key proposals discussed in the two MAS consultation papers.

Singapore's National Hydrogen Strategy to Achieve Net Zero by 2050

On 25 October 2022, Singapore announced its commitment to achieve: (i) "net zero emissions by 2050" as part of its Long-Term Low-Emissions Development Strategy; and (ii) "reduce emissions to around 60 million tonnes of carbon dioxide equivalent (MtCO2e) in 2030 after peaking emissions earlier" as part of the revised 2030 Nationally Determined Contribution.

To help Singapore meet its enhanced climate goals, Singapore also shared its National Hydrogen Strategy that aims to leverage the potential of hydrogen to guide and accelerate Singapore's journey towards meeting our climate goals, while preserving and enhancing our energy security.

This Update outlines the key aspects of the National Hydrogen Strategy, and its potential significance to businesses. In addition, to help you better navigate the broader sustainability legal/regulatory landscape, we also broadly outline some key recent developments, namely, changes to the carbon regime and Singapore's efforts to facilitate green finance.

MAS Seeks Comments on Proposed Framework for Domestic Systemically Important Insurers in Singapore
On 25 October 2022, the Monetary Authority of Singapore ("MAS") issued a consultation paper containing its proposals for a Domestic Systemically Important Insurers ("D-SIIs") framework with the primary aim to assess the systemic importance of insurers and identify a D-SII, and apply relevant policy measures to a D-SII to address the specific negative externalities that a D-SII can potentially pose as a result of its distress or failure.

The consultation ends on 30 November 2022, and MAS proposes to implement the D-SII framework on 1 January 2024.

This Update outlines key features of the proposed D-SII framework.

Enhanced IP Border Enforcement Measures to Come into Effect On 21 November 2022
The Ministry of Law has announced that enhanced border enforcement measures relating to certain intellectual property rights will come into force on 21 November 2022. These measures apply to goods that infringe intellectual property rights ("IPR") relating to geographical indications and registered designs, allowing Singapore Customs to: (a) Upon request by the IPR holder, seize goods suspected of infringing the IPR that are to be imported or exported; and (b) Obtain and provide information relating to the seized goods.

The new measures represent the third and final phase of the Intellectual Property (Border Enforcement) Act 2018, which was enacted to implement a phased approach to fulfilling Singapore's border enforcement obligations under the European Union-Singapore Free Trade Agreement. This Update provides an overview of the key elements of the border enforcement measures set to take effect.

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