Legal Updates

Legal Updates for Feb - 2024

Disposition of Property in Bankruptcy – Can the Court Grant Consent to a Proposed Sale Prior to a Bankruptcy Order

Navigating the Intersection of AI and Art: Copyright Challenges and Commercial Implications

The dawn of a new era in artificial intelligence ("AI") artwork is upon us. There is no doubt that AI technology has experienced a significant leap in recent years, with its growing integration into various sectors, including the art world and graphic design. Notably, there have been instances where AI-generated images have claimed top honors in art competitions, sparking debate about fairness to artists who rely on their human creativity. 

AI's rising popularity in various sectors stems from its utility as a time-saving tool. Tasks that once demanded two to three days can now be accomplished in seconds, thanks to technologies that sift through vast datasets to generate new content. However, to take just one example, concerns have arisen among artists regarding the sourcing of data for AI-generated works, as these creations often lack entirely original foundations. While such practices may not directly breach copyright laws, ethical questions loom over the acquisition of data without the consent of copyright holders. 

In this Update, we take a look at how AI-generated content interacts with intellectual property law in Thailand, as well as the upcoming legislative landscape relating to AI.

Announcements Made at Budget 2024 Regarding Residential Properties

• The new ABSD concession for single Singapore Citizen seniors purchasing a replacement private residential property;
• The revised ABSD remission clawback rates for housing developers; and
• The revised annual value bands for owner-occupier residential PT rates.

New Suite of Real Estate Laws Passed: Law on Real Estate Business, Law on Housing and Law on Land

In the 15^th National Assembly meeting (6^th session) held on 27 November 2023, the Law on Real Estate Business and the Law on Housing were passed. Following a short postponement due to the complexity of the proposed reforms, on 18 January 2024, the Law on Land was also approved. These three laws introduce significant reforms to Vietnam's real estate sector, and (with the exception of some limited provisions) will take effect from 1 January 2025. It has been around 10 years since the laws on the same subject were enacted, and the new laws have been developed to resolve pending issues and adapt with the development of the current market and social practices. 

• The Law on Housing No. 27/2023/QH15 ("Law on Housing 2023") will replace the existing Law on Housing No. 65/2014/QH13 that was enacted in 2014.
• The Law on Real Estate Business ("Law on Real Estate Business 2023") will replace the existing Law on Real Estate Business No. 66/2014/QH13 that was enacted in 2014.
• The Law on Land ("Law on Land 2024") will replace the existing Law on Land No. 45/2013/QH13 that was enacted in 2013 (amended and supplemented by Law No. 35/2018/QH14).

Given the interplay among the Law on Housing 2023, Law on Real Estate Business 2023 and the Law on Land 2024, we highlight the key changes introduced by the three laws in this Update.

Singapore Budget 2024: Building Our Shared Future Together

1. Tax implications for corporations:
1. ntroduction of a corporate income tax rebate;
   
2. Introduction of a refundable investment tax credit;
   
3. Enhancement of the tax deduction for renovation or refurbishment expenditure;
   
4. Extension and revision of three tax incentive schemes for qualifying funds;
   
5. Introduction of alternative basis of tax for three Maritime Sector Incentive sub-schemes; and
   
6. Introduction of additional Concessionary Tax Rate tiers for certain incentives and schemes.


2. Tax implications for individuals:
1. Top-up of the goods and services tax ("GST") voucher fund;
   
2. Introduction of a personal income tax rebate;
   
3. Enhancement of retirement support schemes; and
   
4. Lapse of Course Fees Relief.


3. Tax implications for residential properties:
1. Amendments to Additional Buyer's Stamp Duty ("ABSD") refund concessions for housing developers and senior citizens;
   
2. Adjustment to Annual Value Bands for owner-occupier residential property tax rates; and
   
3. Introduction of a property tax instalment plan for retirees.


4. Other tax changes:
1. Introduction of an overseas emergency humanitarian assistance tax deduction scheme; and
   
2. Withdrawal of the income tax concession on royalty income.


5. Support for businesses and workers:
1. Enhancements to the Enterprise Financing Scheme;
   
2. Expansion and enhancement of the Energy Efficient Grant;
   
3. Enhancements to the Progressive Wage Credit Scheme;
   
4. Raising the Local Qualifying Salary;
   
5. Extension of the SkillsFuture Enterprise Credit; and
   
6. Implementation of the CPF Transition Offset for the increase in senior workers' Central Provident Fund ("CPF") contribution rates.


6. BEPS 2.0 Pillar 2:
1. Introduction of an income inclusion rule; and
   
2. Introduction of a domestic top-up tax.

In this Update, we discuss the key tax measures, changes, enhancements and extensions, as well as refinements in the existing Singapore tax regime.
16 Feb 2024 | Singapore



First Malaysian Judgment Recognising ICSID Arbitration Award

The High Court at Kuala Lumpur, in the first-ever decision of its kind, recognised a foreign award made by an arbitral tribunal under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States ("ICSID Convention"). This recognition resulted in the foreign award being treated as if it is a judgment of the High Court.

To give context, the ICSID Convention was formulated by the World Bank and aims to facilitate conciliation and arbitration of investment disputes between countries that have ratified the ICSID Convention ("Contracting States") and nationals of other Contracting States. The ICSID Convention also provides for the recognition and enforcement of an arbitral award made thereunder.

The ICSID Convention, which came into force on 14 October 1966, has been ratified by 158 countries as of 28 October 2022. Malaysia ratified the ICSID Convention on 14 October 1966 and domestically enacted the Convention on the Settlement of Investment Disputes Act 1966 ("Malaysian ICSID Act") in the same year to give domestic effect to the ICSID Convention.

In Elisabeth Regina Maria Gabriele Von Pezold & Ors v Republic of Zimbabwe [2023] MLJU 2657 ("Von Pezolds Case"), the High Court had to decide whether an ICSID arbitration award is enforceable in Malaysia as if it is a judgment obtained from the High Court by virtue of section 3 of the Malaysian ICSID Act. Various issues were considered by the High Court including its jurisdiction to hear such an application, and the entitlement of a foreign state to claim state sovereign immunity.

The following provisions of the ICSID Convention took centre stage in the Von Pezolds Case:

• Article 53 which in essence provides that an ICSID arbitral award is binding on the parties and each party is required to abide by and comply with the terms of the award;
• Article 54 which in essence stipulates that each Contracting State is required to recognise an ICSID arbitral award rendered under the ICSID Convention as binding, and enforce the pecuniary obligations imposed therein within its territories as if it were a final judgment of a court in that Contracting State. Execution of the award should be governed by the laws concerning the execution of judgments in force in the Contracting State; and
• Article 55 which preserves the law in force in any Contracting State relating to sovereign immunity of that Contracting State or of any foreign state from execution.
15 Feb 2024 | Malaysia



Prakas on Formalities and Procedure of Administrative Sanction and Penalties in Trust Sector

On 3 January 2024, the Non-Banking Financial Services Authority issued Prakas No. 002 on Formalities and Procedure of Administrative Sanction and Penalties in Trust Sector ("Prakas"). This Prakas aims to set out the rules, formalities and procedure in imposing administrative sanction and penalties by the trust inspector on persons who commit offences by contravening the conditions granted by the Trust Regulator of Cambodia under licences, permits, and other registrations. 

In this Update, we highlight the key features of the Prakas.

13 Feb 2024 | Cambodia



Indonesia’s Carbon Capture and Storage (CCS) Regulatory Overview: Steps to become Asia-Pacific Hub?

Countries and companies are setting aggressive net-zero emission targets, and Indonesia is in top gear in ensuring that carbon capture, and storage (“CCS”) is available as one of the necessary tools to reach its domestic net-zero target in 2060. In less than one year span, the Indonesian government has enacted three CCS-related regulations, namely:

1. Minister of Energy and Mineral Resources (“MEMR”) Regulation No. 2 of 2023 on the Implementation of Carbon Capture and Storage and Carbon Capture, Utilisation and Storage for Upstream Oil and Gas Business Activities;
2. SKK Migas Working Guideline No. PTK-070/SKKIA0000/2024/S9; and
3. Presidential Regulation No. 14 of 2024 on the Implementation of Carbon Capture and Storage (“Presidential Regulation 14/2024”).

As a foreword, CCS is not a new technology. In fact, it is a half-century old upstream oil and gas technology that is traditionally used to enhance oil and gas recovery or reduce emissions deriving from oil and gas operations. Because it derives from the upstream business, the regulatory process replicates and builds on the existing processes and processes in the upstream business.

The latest regulation, Presidential Regulation 14/2024, is intended to bridge all the regulatory gaps and cover all possible scenarios, areas of concern, and monetisation. This client update will provide an overview of the current regulatory framework:

1. How and where to do CCS operations in Indonesia;
2. Tax incentives;
3. CCS business process;
4. Monetisation and carbon credit;
5. Post operations and limitation of liability;
6. Foreign investment restrictions;
7. Potential sanctions.
13 Feb 2024 | Indonesia



OJK’s New Rule Tightens Share Buyback and Expands Scope of Disclosure

Indonesia’s Financial Services Authority or Otoritas Jasa Keuangan (“OJK”) has enacted several changes on share buyback by public companies. These changes, adopted under OJK Regulation No. 29 of 2023 on Share Buyback by Public Companies (“New Regulation”), subject public companies to more stringent provisions compared to the previous framework under OJK Regulation No. 30/POJK.04/2017, most notably on the execution of buybacks, as well as the contents of the public disclosure.

Furthermore, the New Regulation extends the methods to transfer treasury shares^[1] and allows for some flexibility by allowing the payment or settlement of certain transactions such as asset acquisition and debt or bonds repayment as one of the purposes of such transfer.

As we will see below, the New Regulation has far-reaching implications. It not only establishes a more rigorous framework for share buybacks but also instil a heightened sense of accountability and transparency within public companies.

13 Feb 2024 | Indonesia



Call to Action: Preparing for Changes to the OTC Derivatives Reporting Regime

The Singapore regime for the reporting of specified over-the-counter ("OTC") derivatives contracts is set to undergo a major update. The upcoming changes are a result of the publication of various technical guidance papers by the Committee on Payments and Market Infrastructures and the International Organization of Securities Commissions with the goal of facilitating the aggregation of OTC derivatives data through standardisation and harmonisation of data elements.

The regulatory amendments are expected to come into effect in October 2024. Time is needed to put in place implementation steps towards compliance with the new regulations, reporting entities are encouraged to act sooner rather than later. In this Update, we highlight some practical implementation pointers for consideration and we may assist reporting entities.
13 Feb 2024 | Singapore



Rajah & Tann Asia Intellectual Property Newsletter 2023 - 2024

The field of intellectual property ("IP") has been a hive of activity in the past year. With blockchain and artificial intelligence quickly becoming the buzzwords of the new economy, much attention has been placed on how IP frameworks will evolve and adapt to fit the changing needs of the business world and the innovation economy.

The speed of IP development shows no sign of slowing down, and businesses and IP rights holders would be well advised to keep ahead not just of ongoing developments, but of the trends that may be expected to take shape in the near future. In this annual review, we take a look back at the major legal developments relating to the area of IP in the past year in Southeast Asia. We also look ahead to the trends and expected developments of the year ahead across the jurisdictions in our regional network.
08 Feb 2024 | Singapore



Rajah & Tann Asia Intellectual Property Newsletter 2023 - 2024

The field of intellectual property ("IP") has been a hive of activity in the past year. With blockchain and artificial intelligence quickly becoming the buzzwords of the new economy, much attention has been placed on how IP frameworks will evolve and adapt to fit the changing needs of the business world and the innovation economy.

The speed of IP development shows no sign of slowing down, and businesses and IP rights holders would be well advised to keep ahead not just of ongoing developments, but of the trends that may be expected to take shape in the near future. In this annual review, we take a look back at the major legal developments relating to the area of IP in the past year in Southeast Asia. We also look ahead to the trends and expected developments of the year ahead across the jurisdictions in our regional network.

08 Feb 2024 | Cambodia



Rajah & Tann Asia Intellectual Property Newsletter 2023 - 2024

The field of intellectual property ("IP") has been a hive of activity in the past year. With blockchain and artificial intelligence quickly becoming the buzzwords of the new economy, much attention has been placed on how IP frameworks will evolve and adapt to fit the changing needs of the business world and the innovation economy.

The speed of IP development shows no sign of slowing down, and businesses and IP rights holders would be well advised to keep ahead not just of ongoing developments, but of the trends that may be expected to take shape in the near future. In this annual review, we take a look back at the major legal developments relating to the area of IP in the past year in Southeast Asia. We also look ahead to the trends and expected developments of the year ahead across the jurisdictions in our regional network.

08 Feb 2024 | Malaysia



Regional Competition Report 2023

2023 has shown that the Competition regulators in Southeast Asia are a force to be reckoned with, taking a front-seat in the region. Six of the 10 countries now have robust merger regimes with several of the regulators clearly matured enough to tackle difficult transaction reviews, take them into Phase 2 reviews and considering remedies to try and meet parties some way so as to be able to close the merger. Nine of the 10 countries have robust behavioural competition laws, and cartel and abuse investigations have increased in the various countries, where some regulators have not hesitated to penalise individuals directly. An example of the former is the Trade Competition Commission of Thailand which released a detailed 145-page summary decision explaining its decision to approve the Bangchak / Esso merger. An example of the latter is how the Indonesia Competition Commission dealt with cases of bid rigging of road tenders, and in one of them imposed a penalty on an individual for their involvement in the bid rigging. We have in this Annual Report provided an overview of the trends in 2023 and highlighted updates from the final quarter of 2023. We do expect 2024 to be a year where competition issues will be ignored to businesses' peril. Take a step back, take stock as you move forward. We stand ready to assist as always.
08 Feb 2024 | Singapore



Rajah & Tann Asia Intellectual Property Newsletter 2023 - 2024

The field of intellectual property ("IP") has been a hive of activity in the past year. With blockchain and artificial intelligence quickly becoming the buzzwords of the new economy, much attention has been placed on how IP frameworks will evolve and adapt to fit the changing needs of the business world and the innovation economy.

The speed of IP development shows no sign of slowing down, and businesses and IP rights holders would be well advised to keep ahead not just of ongoing developments, but of the trends that may be expected to take shape in the near future. In this annual review, we take a look back at the major legal developments relating to the area of IP in the past year in Southeast Asia. We also look ahead to the trends and expected developments of the year ahead across the jurisdictions in our regional network.

08 Feb 2024 | Thailand



Prakas on Corporate Governance for Insurance Companies

On 15 January 2024, the Non-Banking Financial Services Authority issued Prakas No. 005 on Corporate Governance for Insurance Companies ("Prakas") to replace the Prakas No. 185 on Requirements for Corporate Governance dated 20 March 2007. This new Prakas consists of 8 chapters and 36 articles which apply to all insurance companies (life insurance, general insurance, micro-insurance and reinsurance) doing business in the Kingdom of Cambodia. 

This Prakas determines the composition, qualifications, roles, and responsibilities of the board of directors, board committees, chief executive officers, and actuaries of an insurance company in view of ensuring good governance. In this Update, we highlight the key features of the Prakas.

07 Feb 2024 | Cambodia



Incentives for Voluntary Rectification of Tax Returns

The Ministry of Economy and Finance issued Prakas No. 071 on Incentives for Voluntary Rectification of Tax Returns dated 30 January 2024 ("Prakas no. 071"). Prakas no. 071 amends Prakas no. 127 dated 14 March 2022 on Incentives for Voluntary Rectification of Tax Returns in order to get an exemption from the administrative penalty. 

Prakas no. 071 governs all taxpayers in the self-assessment regime who file for amendment of tax returns after the submission of their respective tax returns. This Update sets out the key features of Prakas no. 071.

07 Feb 2024 | Cambodia



Could 2024 be the Year of Insurance Companies' Consolidation?

To strengthen the insurance sector and align it with the objectives outlined in Law No. 4 of 2023 (often referred to as the Omnibus Financial Law) and Government Regulation No. 14 of 2018 as amended by Government Regulation No. 3 of 2020 (which governs foreign ownership in insurance companies), the Financial Services Authority or OJK enacted OJK Regulation No. 23 of 2023 on Business and Institutional Licensing for Insurance Companies, Sharia Insurance Companies, Reinsurance Companies, and Sharia Reinsurance Companies (“Regulation 23/2023”) at the end of 2023.

Regulation 23/2023 comprises of 162 articles, distributed across 22 chapters. Effective since 22 December 2023, Regulation 23/2023 replaces OJK Regulation No. 67/POJK.05/2016 and its amendments, and amend certain articles in the following regulations:

• OJK Regulation No. 71/POJK.05/2016 on the Financial Soundness Levels of Insurance Companies and Reinsurance Companies.
• OJK Regulation No. 72/POJK.05/2016 on the Financial Soundness Levels of Insurance Companies and Reinsurance Companies operating under Sharia Principles.
• OJK Regulation No. 73/POJK.05/2016 on Good Corporate Governance of Insurance Companies.
02 Feb 2024 | Indonesia



Tax & Custom Alert – February 2024

This Update highlights recent tax and customs developments in Vietnam.

Global Minimum Tax (“GMT”) Introduction & Potential Tax Reforms – Update

Following Vietnam’s National Assembly’s passed Resolution 107/2023/QH15 dated 29 November 2023 on GMT ("Resolution"), the Vietnam Prime Minister issued Decision 19/QD-TTG dated 8 January 2024  directing the Ministry of Finance to collaborate with competent authorities to draft a decree guiding the implementation of GMT in relation to some provisions of the Resolution. These provisions include article 2.2 on taxpayers, article 4.10 on Qualified Domestic Minimum Top-up Tax (QDMTT), and article 5.13 on the Income Inclusion Rule (IIR). This decree would be granted by the Government before 31 October 2024. 

Value-added Tax ("VAT") Reduction Policy in 2024

On 28 December 2023, to implement Resolution No. 110/2023/QH15 passed by Vietnam's National Assembly, the Government issued Decree 94/2023/ND-CP ("Decree 94") together with Appendices guiding VAT reduction policy from 1 January 2024 to 30 June 2024. Decree 94 took effect from 1 January 2024.

VAT Reforms – Proposed Changes in a New Law on VAT

The Vietnam Government recently issued a draft of a new law on VAT which will introduce significant changes to the VAT policy on VAT exemption, rates and refund. These may potentially impact several business sectors including agriculture, maritime, banking, stock exchange, and telecommunication. The new law will replace the current VAT law issued in 2008 and its amendments.

01 Feb 2024 | Vietnam