Rajah & Tann Asia | Singapore Law Firm - legal services across Asia

Legal Updates for Feb - 2022

Singapore to Impose Sanctions on Russia

On 28 February 2022, the Minister for Foreign Affairs, Mr Vivian Balakrishnan, issued a Ministerial Statement in Parliament stating that Singapore intends to impose sanctions and restrictions against Russia. The potential imposition of country-based sanctions against Russia, in the absence of any underlying United Nations Security Council resolution, is an unprecedented step in the implementation of Singapore's foreign policy.

This Update looks at the possible scope of the prospective sanctions and what businesses may expect, particularly with regard to transactions with any links with Russia.

28 Feb 2022 | Singapore

Extension of Part IV of AMLA to IEOs, Digital Custodians and Digital Asset Advisors, and Explicit Broadening to Equity Crowdfunding, Crowdfunding, P2P and other Recognised Market Operator Platforms

On 24 December 2021, the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities (Invocation of Part IV) Order 2021 and the Anti-Money Laundering, Anti-Terrorism Financing And Proceeds Of Unlawful Activities (Amendment Of First And Second Schedules) Order 2021 extended the application of Part IV of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ("AMLA") to digital asset custodians, intermediaries, and those involved in the provision of advisory services relating to the offer or sale of digital currencies or digital tokens. Part IV of AMLA deals with reporting obligations of reporting institutions, including the duties for record-keeping, customer due diligence, having and maintaining a compliance programme, and other requirements relating to disclosure, tip-off, and investigation or protection of reporting persons and institutions.

This Update provides a summary of the key amendments, as well as the impact on operators and consequences of non-compliance.

28 Feb 2022 | Malaysia

Two Bills Introduced in Parliament to Overhaul Singapore's Gambling Regulatory Regime

On 14 February 2022, the Gambling Control Bill ("GC Bill") and the Gambling Regulatory Authority of Singapore Bill ("GRA Bill") were read for the first time in Parliament. Their introduction marks the next stage of the reform of Singapore's gambling regime which began in 2021 with the Ministry of Home Affairs' ("MHA") recommendation for a holistic update to Singapore's gambling laws. This was followed by further recommendations pursuant to a public consultation on MHA's proposed amendments to gambling laws in Singapore, which we covered in our July 2021 Legal Update titled "Public Consultation on Proposed Amendments to Laws Governing Gambling Activities".

With the introduction of the GC Bill and the GRA Bill, Singapore has taken another step closer towards fully modernising its gambling regulation. If passed, the Bills will result in a significant overhaul and consolidation of the current regulatory regime. Key changes include:

Establishing the Gambling Regulatory Authority of Singapore ("GRA") to regulate the entire gambling landscape in Singapore;
Updating gambling laws and regulatory approaches to keep pace with the evolving gambling landscape;
Legalising terrestrial social gambling;
Criminalising underage and proxy gambling; and
Introducing new licensing regimes.

In this Update, we will highlight the key changes introduced by both Bills.

28 Feb 2022 | Singapore

New Sub-Decree on Insurance

Following the promulgation of the new Law on Insurance in 2014, the Royal Government of Cambodia issued a Sub-Decree No. 275 ANKr.BK on Insurance on 30 December 2021 ("New Sub-Decree"). This New Sub-Decree on Insurance abrogates the previous sub-decree dated 22 October 2001. The New Sub-Decree applies to all insurance activities in Cambodia with an exception on micro-insurance activities (which will be governed under a separate sub-decree and related regulations).

The New Sub-Decree, consisting of 10 chapters and 106 articles, sets out, in greater clarity compared to the previous 2001 sub-decree, the rules, procedures and formalities for the management and supervision of insurance activities in order to ensure good governance, efficiency, fair and open competition, and protection of public's interest, and to promote public's trust in the insurance sector in compliance with the Law on Insurance. This Update highlights, amongst others, the key features under the New Sub-Decree.

25 Feb 2022 | Cambodia

Rules on the Management, Establishment, and Functioning of Trust

On 26 January 2022, the Non-Banking Financial Services Authority issued a new Prakas No. 003 OSH/Prokor on Rules on the Management, Establishment and Functioning of Trust ("Prakas").

The Prakas consists of eight chapters and 75 articles and applies to the operation of all trusts and the conduct of all persons related thereto in Cambodia. This Prakas aims to set out the rules, conditions, and procedures in controlling, organising, and operating a trust.

This Update highlights the key features of the Prakas.

25 Feb 2022 | Cambodia

Singapore Court Issues First Decision on Classification of Creditors in Lock-Up Agreements for Schemes of Arrangement

In a scheme of arrangement, scheme companies may incentivise the creditors to commit to the proposal at an early stage by entering into a lock-up agreement, in which the creditor provides an undertaking to vote in favour of the scheme in exchange for certain benefits. While lock-up agreements are advantageous tools in the hands of a scheme company, the principles underlying such agreements have so far not been considered in detail by the Singapore Court. In Re Brightoil Petroleum (S'pore) Pte Ltd [2022] SGHC 35, the Singapore High Court, for the first time, issued the grounds of its decision on whether creditors who enter into lock-up agreements should be placed in a separate class from the other creditors for the purpose of voting on a scheme of arrangement.

The Court's decision provides some much-welcome clarity on this topic. In this Update, we provide a summary of the Court's decision and highlight the key principles of law regarding lock-up agreements.

25 Feb 2022 | Singapore

Formalities of Certification Work

The Ministry of Land Management, Urban Planning and Construction ("MLMUPC") has issued two Prakas on formalities of certification work for the purpose of implementation of Sub-Decree No. 225 ANKr.BK dated 30 December 2020 on the Conditions and Procedures of Construction Inspection and Certification Work.

Prakas 126 - On 30 December 2021, MLMUPC issued Prakas No. 126 on Formalities of Certification Work of Building Work and Demolition Work in relation to Architectural and Structural Design, which sets out the formalities of inspection and certification work of building work and demolition work in relation to architectural and structural design.

Prakas 109 – On 22 November 2021, MLMUPC issued Prakas No. 109 on Formalities of Certification Work of Architectural Design and Structural Design which sets out the formalities of inspection and certification work of architectural and structural design.

23 Feb 2022 | Cambodia

Prakas on Danger Levels, Risk Avoidance Measures, and Dangerous Construction Management Procedures

On 1 February 2022, the Ministry of Land Management, Urban Planning and Construction issued Prakas No. 047 on the Danger Levels, Risk Avoidance Measures, and Dangerous Construction Management Procedures, which aims to ensure public health and safety, to avoid risk, and to promote accountability of building owners, building managers and building users as well as to promote efficient management of construction by competent authorities.

23 Feb 2022 | Cambodia

Construction Permit by the Minister of Land Management, Urban Planning and Construction: Formalities and Procedures

On 20 January 2022, the Ministry of Land Management, Urban Planning and Construction ("MLMUPC") issued Prakas No. 013 on Formalities and Procedures for the Issuance of Construction Permit by the Minister of Land Management, Urban Planning and Construction, which sets out the formalities and procedures for the issuance of construction permits and the extension of construction permits by the MLMUPC for the purpose of implementation of Sub-Decree No. 224 ANKr.BK dated 30 December 2020 on the Construction Permit.

23 Feb 2022 | Cambodia

Guidance on Assessing Responsible AI Use in Banking and Insurance Sectors (Veritas Phase 2)

Globally, regulators have come up with frameworks to promote the responsible use of Artificial Intelligence and Data Analytics ("AIDA") by financial institutions ("FIs"). Singapore endorses a principles-based and technology-neutral approach.

The Monetary Authority of Singapore issued a set of principles in 2018 centred around the key concepts of Fairness, Ethics, Accountability and Transparency ("FEAT Principles") to guide FIs on the responsible use of AIDA. MAS and the financial industry collaborated on the Veritas project to provide guidance to FIs to evaluate their AIDA-driven solutions against the FEAT principles.

The Veritas Consortium concluded Phase One of the Veritas project in January 2021 where it developed the fairness principles assessment methodology and applied it to credit risk scoring and customer marketing for the banking sector. Phase Two built upon the methodology in Phase One and developed the assessment methodology for all the FEAT Principles for adoption by banks in credit risk scoring and customer marketing, as well as the insurance industry in predictive underwriting and fraud detection.

This Update provides a high-level introductory overview of the assessment methodologies developed in Phase Two of the Veritas project along with some broad regulatory trends and considerations based on the whitepapers published at the conclusion of Phase Two by the Veritas Consortium.

22 Feb 2022 | Singapore

Draft Law Potentially Lifts Prohibition on Ad Hoc Arbitrations in China

Arbitrations are by-and-large divided into two categories – those that are administered by an arbitral institution (institutional arbitrations) and those that are not (ad hoc arbitrations). Ad hoc arbitrations are usually cheaper and more flexible, but lack the support and supervision of a well-organised institution. As such, the Arbitration Law of the People's Republic of China ("Arbitration Law"), first released in 1994 and last updated in 2017, prohibited ad hoc arbitrations in China. This prohibition still remains as a general rule in the current legal system, although judicial authorities have made some small, case-by-case exceptions.

Almost 30 years later, China's arbitration system has undergone significant developments, and more and more scholars are advocating for ad hoc arbitration in China's domestic arbitration system.

On 30 July 2021, the Ministry of Justice of the People's Republic of China ("Ministry of Justice") published the Arbitration Law of the People's Republic of China (Amended Version) (Draft for Comments) (the "Draft Arbitration Law") for public consultation. The Draft Arbitration Law introduces for the first time the rules of ad hoc arbitration into the domestic arbitration regime.

In this article, we examine the current position and comment on the three draft Articles that touch on ad hoc arbitration.

Visit our Arbitration Asia website for insights from our thought leaders across Asia concerning arbitration and other alternative dispute resolution mechanisms, ranging from legal and case law developments to market updates and many more.

21 Feb 2022 | Singapore

Draft Law Potentially Lifts Prohibition on Ad Hoc Arbitrations in China

Arbitrations are by-and-large divided into two categories – those that are administered by an arbitral institution (institutional arbitrations) and those that are not (ad hoc arbitrations). Ad hoc arbitrations are usually cheaper and more flexible, but lack the support and supervision of a well-organised institution. As such, the Arbitration Law of the People's Republic of China ("Arbitration Law"), first released in 1994 and last updated in 2017, prohibited ad hoc arbitrations in China. This prohibition still remains as a general rule in the current legal system, although judicial authorities have made some small, case-by-case exceptions.

Almost 30 years later, China's arbitration system has undergone significant developments, and more and more scholars are advocating for ad hoc arbitration in China's domestic arbitration system.

On 30 July 2021, the Ministry of Justice of the People's Republic of China ("Ministry of Justice") published the Arbitration Law of the People's Republic of China (Amended Version) (Draft for Comments) (the "Draft Arbitration Law") for public consultation. The Draft Arbitration Law introduces for the first time the rules of ad hoc arbitration into the domestic arbitration regime. In this article, we examine the current position and comment on the three draft Articles that touch on ad hoc arbitration.

Visit our Arbitration Asia website for insights from our thought leaders across Asia concerning arbitration and other alternative dispute resolution mechanisms, ranging from legal and case law developments to market updates and many more.

21 Feb 2022 | China

High Court Issues Key Decisions on Schemes of Arrangement

the classification of creditors;
the threshold test for disclosures in the explanatory scheme;
the validity of virtual scheme meetings;
the extension of time for submission of proofs of debt ("PODs");
the inspection of other scheme creditors' PODs; and
the discounting of scheme creditors' votes.

This Update provides a summary of the above principles.

21 Feb 2022 | Malaysia

Forward, Together: Singapore Budget 2022

In light of Singapore's economy rebounding from the reverberations from the COVID-19 pandemic, Budget 2022 was unveiled by Singapore's Minister for Finance Mr Lawrence Wong on 18 February 2022. With the theme "Charting Our New Way Forward Together", Mr Wong laid out a wide range of measures to tackle Singapore's immediate challenges, including:

S$500 million Jobs and Business Support Package to provide targeted help for workers and businesses in segments of the economy that are facing slower recovery;
S$560 million Household Support Package that helps Singaporean families to manage cost of living pressures by providing support for daily essentials;
S$600 million set aside to strengthen local enterprises under the Productivity Solutions Grant; and
S$200 million to improve digital capabilities in businesses and workforces, such as investing in future technologies like 6G.

There were also tax measures and changes announced which were categorised as follows:

Maintaining the Competitiveness and Resilience of the Tax System
Building a Fairer and More Resilient Tax System
Enhancing Service Delivery
Increasing the Carbon Tax

In this Update, we discuss selected tax measures, changes, enhancements, extensions, and refinements.

21 Feb 2022 | Singapore

Key Amendments to Law on Commercial Enterprises & Commercial Rules and Register

On 29 January 2022, amendments were made to the Law on Commercial Enterprises and the Law on Commercial Rules and Register. The amendments are set out in the Amendment Law of the Law on Commercial Enterprises and the Amendment Law of the Law on Commercial Rules and Register and came into force on 30 January 2022 throughout the country.

In this Update, we set out the key amendments to the Law on Commercial Enterprises and the Law on Commercial Rules and Register.

15 Feb 2022 | Cambodia

Proposed Amendments to the Personal Data Protection Act 2010 (PDPA): Latest Updates

In 2018, the Malaysian Government announced its intention to carry out a comprehensive review and to update the Personal Data Protection Act 2010 (“PDPA”), with a view to aligning the PDPA with international standards. Since then, the Department of Personal Data Protection (Jabatan Perlindungan Data Peribadi) (“JPDP”) has carried out a review exercise, and published a public consultation paper in February 2020 titled “Public Consultation Paper No. 01/2020 on Review of the PDPA” (“Public Consultation Paper”). The Public Consultation Paper sets out 22 areas of proposed amendments for public feedback.

However, as of the date of this article, no draft amendment bill has been tabled in the Malaysian Parliament notwithstanding the confirmation by the Malaysian Government that the PDPA will be updated within the next few years. Nonetheless, JPDP has recently provided insights on the status of the proposed amendments. Therefore, this article seeks to provide a quick update on the status of the proposed amendment bill, as well as further details regarding the proposed changes that will be included in the amendment bill.

11 Feb 2022 | Malaysia

Proposed Amendments to the Personal Data Protection Act 2010 (PDPA): Latest Updates

11 Feb 2022 | Malaysia

Be Careful What You Wish For - Hastily Rendered Arbitration Award Set Aside by the Singapore High Court in Sai Wan Shipping Ltd v Landmark Line Co Ltd [2022] SGHC 8

When does the issuance and the enforcement of the terms of a peremptory order in international arbitration cross the line such as to amount to a denial of justice? That was the principal issue in Sai Wan Shipping Ltd v Landmark Line Co Ltd [2022] SGHC 8 where the Singapore High Court found the arbitrator to have acted in breach of the principles of natural justice in not giving the respondent sufficient opportunity to be heard and to have failed to give equal treatment to the parties.

The arbitrator in this Singapore-seated arbitration had issued what he described as a final and peremptory order that defence submission be served by a certain time, the breach of which would bar the respondent from advancing any positive defences or evidence. When the submission were served slightly late, the arbitrator refused to admit the defence submissions and subsequently made an award in favour of the claimant without hearing witnesses and on a documents-only basis. The Court set aside this award for the reasons stated above.

10 Feb 2022 | Singapore

Regional Trade Highlights 2021

2021 has witnessed various developments related to trade law across Southeast Asia. In this publication, we provide a snapshot of these developments by discussing key highlights on trade related topics in 2021, such as regulatory activity relating to anti-dumping and safeguard measures, developments relating to export/import, free trade agreements, as well as sanctions. Amongst others, our highlights touch on Myanmar's introduction of a new Safeguard on Increased Imports Law as well as Malaysia's and Vietnam's regulatory activity in anti-dumping and safeguards; Thailand's implementation of catch-all controls to block exports of dual-use goods involving proliferation of weapons of mass destruction; the developments relating to controlled goods such as in the Philippines for wood products and Singapore for lead paint; Cambodia's new Law on Investment and its impact on duties involving prescribed investment sectors/activities; as well as developments in free trade agreements in the region such as the Regional Comprehensive Economic Partnership Agreement and Indonesia's Indonesia-European Free Trade Association Comprehensive Economic Partnership Agreement.

As things gear up in 2022, we remind businesses to keep abreast of legislative and enforcement updates on trade-related topics, which do not always involve only pure law but also involve very practical know-how aspects such as working with the regulators, and to always place a healthy emphasis on your internal trade processes – from the classification of your products to the determination of rules of origin to the securing of the necessary permits for import/export of controlled goods or strategic goods. This is critical not only to ensure continued compliance with the law, which is always developing, but also to catch existing areas of non-compliance.

09 Feb 2022 | Singapore

Climate Risk Management and Scenario Analysis (Exposure Draft)

Recognising the characteristics of climate-related risks, Bank Negara Malaysia (“BNM”) has issued the Exposure Draft on Climate Risk Management and Scenario Analysis (“Exposure Draft”) which sets out the principles and specific requirements on the management of climate-related risks by financial institutions, with the aim to enhance the resilience of the financial sector against climate-related risks. Any feedback on the Exposure Draft can be submitted to BNM by 31 March 2022.

08 Feb 2022 | Malaysia

Climate Risk Management and Scenario Analysis (Exposure Draft)

08 Feb 2022 | Malaysia

State of Emergency in Myanmar – One Year On

In the commercial cities of Yangon and Mandalay, daily lives of the residents appear to have resumed subject to the COVID-19 restrictions, although armed conflicts in the rural regions have continued. At the same time, the number of reported COVID–19 infection cases appear to have lessened and more medical assistance is being made available. The electricity supply and internet connections continue to remain unstable which has posed significant operational challenges for a number of businesses.

In spite of a blend of diplomatic efforts and punitive sanctions from the international community, Myanmar is still mired in severe unrest and political uncertainty, with millions living below the poverty line. As threats of civil war loom, there have been efforts behind the scenes to ramp up humanitarian efforts across the country as the situation on the ground is widely expected to worsen in the coming months. Amidst the currently volatile political and socio-economic backdrop of Myanmar, we discuss in this Update the legal and regulatory developments that have taken place in the country in the second half of last year since the Declaration.

08 Feb 2022 | Myanmar

State of Emergency in Myanmar – One Year On

On 1 February 2021, a state of emergency was declared for a period of one year in Myanmar ("Declaration"). More than one year after the Declaration, Myanmar still remains under a state of emergency with a new caretaker government pledging to hold elections by August 2023.

In the commercial cities of Yangon and Mandalay, daily lives of the residents appear to have resumed subject to the COVID-19 restrictions, although armed conflicts in the rural regions have continued. At the same time, the number of reported COVID–19 infection cases appear to have lessened and more medical assistance is being made available. The electricity supply and internet connections continue to remain unstable which has posed significant operational challenges for a number of businesses.

In spite of a blend of diplomatic efforts and punitive sanctions from the international community, Myanmar is still mired in severe unrest and political uncertainty, with millions living below the poverty line. As threats of civil war loom, there have been efforts behind the scenes to ramp up humanitarian efforts across the country as the situation on the ground is widely expected to worsen in the coming months. Amidst the currently volatile political and socio-economic backdrop of Myanmar, we discuss in this Update the legal and regulatory developments that have taken place in the country in the second half of last year since the Declaration.

08 Feb 2022 | Singapore

New MAS Guidelines Restricts Promoting Digital Payment Token Services to Singapore Public

With the global fervour from retail investors surrounding the trading of cryptocurrencies (many of which would be regulated under the Singapore Payment Services Act 2019 ("PS Act") in Singapore as digital payment tokens ("DPTs")), the Monetary Authority of Singapore ("MAS") stance has been, and remains, that trading in DPTs carries very high risk and is unsuitable for the Singapore general public.

MAS noted that certain DPT service providers have been promoting DPT services online and through printed advertisements, as well as via automated teller machines that facilitate trading in DPTs, commonly known as "crypto ATMs". In view thereof, MAS issued a set of "Guidelines on Provision of Digital Payment Token Services to the Public" outlining restrictions on DPT service providers concerning the promotion of DPT services to the Singapore public ("Guidelines"). The Guidelines also set out new expectations of MAS for DPT service providers licensed or regulated under the PS Act to restrict the provision of payment token derivatives services.

In this Update, we highlight the key takeaways from the Guidelines which participants in the DPT space should take note of.

07 Feb 2022 | Singapore

What You Need to Know about the AIAC Arbitration Rules 2021

The Asian International Arbitration Centre ("AIAC") published its Arbitration Rules 2021 ("2021 Rules") for public consultation in June 2021. The rules took effect on 1 August 2021. With the objective of providing "a wider range of sophisticated and tailored provisions to govern the efficient conduct of arbitration proceedings" and to offer a "comparable and competitive product reflecting contemporary international standards and practices on the global stage", the 2021 Rules are a substantial upgrade to the AIAC Arbitration Rules 2018 ("2018 Rules"). Notable features are:

a. The consolidation of the UNCITRAL Arbitration Rules 2013 with the AIAC Arbitration Rules;

b. A new Fast Track Procedure;

c. A new summary determination mechanism;

d. Provision for the consolidation of multi-contractual disputes under a single Notice of Arbitration;

e. A new procedure for the appointment of arbitrators;

f. Provisions regarding the publishing of arbitral awards; and

g. Provisions regarding third-party funding.

Visit our Arbitration Asia website for insights from our thought leaders across Asia concerning arbitration and other alternative dispute resolution mechanisms, ranging from legal and case law developments to market updates and many more.

03 Feb 2022 | Malaysia

What You Need to Know about the AIAC Arbitration Rules 2021

a. The consolidation of the UNCITRAL Arbitration Rules 2013 with the AIAC Arbitration Rules;

b. A new Fast Track Procedure;

c. A new summary determination mechanism;

d. Provision for the consolidation of multi-contractual disputes under a single Notice of Arbitration;

e. A new procedure for the appointment of arbitrators;

f. Provisions regarding the publishing of arbitral awards; and

g. Provisions regarding third-party funding.

03 Feb 2022 | Malaysia