Legal Updates

Legal Updates for Mar - 2022

疫情两年后，新加坡高等法庭对视频作证持何态度？ꟷꟷ 从新加坡高等法庭最近驳回外国证人以视频连线方式出庭作证请求一案谈起

The Indonesian Government Mandates BPJS Membership to Buy Lands and Properties

Starting from 1 March 2022, property buyers have one more item on their to-do list when purchasing properties in Indonesia. Pursuant to Ministry of Land Affairs/National Land Agency Circular Letters (No. HR.02/153-400/II/2022, No. HR.02/164-400/II/2022, and No. 5/SE-400.HK.02/II/2022), buyers must have an active membership in the nation’s social security program or BPJS Kesehatan before they can register the right over land or apartment that they have purchased.

In doing so, the government aims to boost the implementation of BPJS Kesehatan and simultaneously enhance public access to quality healthcare. Thus, going forward, the Ministry of Land Affairs/National Land Agency will verify the status of an applicant’s membership in BPJS Kesehatan before registering any right over land, pending the implementation of an integrated system between the Ministry and BPJS Kesehatan.

Returning to the "Norm" – Singapore High Court Issues Guidance on the Giving of Evidence via Video-link amidst COVID-19 Pandemic

Singapore Court of Appeal Settles Controversy on When a Grant of Security to Cover Existing Indebtedness May Amount to a Transaction at an Undervalue

Latest Guidelines on Personal Data Protection Notices under the Personal Data Protection Act 2010 (PDPA)

The Personal Data Protection Act 2010 ("PDPA") is the main legislation which regulates the processing of personal data in the context of commercial transactions. Pursuant to section 7 of the PDPA (the Notice and Choice Principle), every data user must prepare a written statement which sets out the information as prescribed under the PDPA.

In this regard, the Personal Data Protection Department (Jabatan Perlindungan Data Peribadi or "JPDP ") recently issued the Guide to Prepare Personal Data Protection Notice ("Guidance Note ") to provide guidance to all data users on the preparation of simple but comprehensive personal data protection notices (also known as "privacy notices "), which are aligned with the current business ecosystem as well as the personal data protection landscape in Malaysia.

Pursuant to the issuance of the Guidance Note, this Update seeks to provide a brief summary of the requirements for the preparation of privacy notices, as well as the potential impact on data users vis-à-vis their compliance with the Notice and Choice Principle.

Code of Conduct for Leasing of Qualifying Retail Premises (Updated 15 March 2022)

Ex Aequo et Bono: Applying Equity and Fairness under Indonesian Arbitration Law

Similar to most jurisdictions, Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution ("Indonesian Arbitration Law") recognises at least two types of decision that can be rendered by a tribunal. The first is a decision solely based on the four corners of contracts and the law (including the parties' contract), while the second is a decision based on the principles of equity and fairness, also known as ex aequo et bono.

The Indonesian Arbitration Law allows a tribunal to render a decision based on the ex aequo et bono principle, but only if the parties have agreed that the tribunal can do so. However, there has been a recent and worrying trend where arbitral tribunals have applied this principle without the parties' agreement.

In this article, we look into the statutory framework for the application of the ex aequo et bono principle, and how it has been applied in recent arbitrations.

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.

MAS Notices on Financial Measures Relating to Russia Sanctions: Impact on Financial Institutions in Singapore

1. Notice SNR-N01 Financial Measures in Relation to Russia ("MAS Notice SNR-N01") sets out the activities and transactions that FIs are prohibited from engaging in.
2. Notice SNR-N02 Financial Measures in Relation to Russia – Non-prohibited Payments and Transactions ("MAS Notice SNR-N02") sets out payments and transactions that are excluded from the scope of the financial measures in MAS Notice SNR-N01.

Taking effect on 14 March 2022, the MAS Notice SNR-N01 and the MAS Notice SNR-N02 apply to all FIs, including all banks, finance companies, insurers, capital markets intermediaries, securities exchanges and payment service providers (including digital payment token service providers). Failure to comply with the requirements in the MAS Notices is an offence.

This Update highlights the impact of the MAS Notices on FIs, summarising the key prohibited transactions and relevant exclusions for FIs' noting and necessary action.

Government Measures to Assist Economic Recovery under Resolution No. 43/2022/QH15 and Implementing Decree 15/2022/ND-CP: Keynotes and Implications

On 11 January 2022, Resolution No. 43/2022/QH15 on Fiscal and Monetary Policies for Supporting Socio-economic Recovery and Development Program ("Resolution No. 43/2022") was approved by the National Assembly of the Socialist Republic of Vietnam.

The objectives of Resolution No. 43/2022 are to stimulate the rapid recovery of production activities, prioritise certain sectors, and strive to achieve these goals set out in the 2021-2025 plans: (i) maintain an average GDP growth of 6.5-7% per year, ensuring public debt levels are lower than the allowable threshold permitted under Resolution No. 23/2021/QH15; (ii) restrict the urban unemployment rate to below 4%; and (iii) maintain a stable macroeconomic environment.

A number of policies have since been implemented to support the objectives of Resolution No. 43/2022. A combination of fiscal policies targeting a reduction of Value Added Tax ("VAT") rate in 2022 from 10% to 8% (i.e., a 2% reduction) with certain exclusions have been introduced. In addition, expenses relating to donations and sponsors in support of proactive COVID-19 efforts have been allowed to be included as deductible expenses for the purpose of calculating an enterprise’s taxable income in 2022. To implement these initiatives, Decree 15/2022/ND-CP ("Decree 15/2022") prescribing tax exemption and reduction came into force on 1 February 2022. It deals with VAT reduction on goods and services currently subject to 10% VAT (Article 1), and expenses from donations that are allowed to be deducted for purposes of determining taxable income (Article 2).

This Update provides the key features of Resolution No. 43/2022 and Decree 15/2022 and their implications.

Establishment of the Cambodia Competition Commission

On 17 February 2022, the Cambodia Competition Commission ("CCC") was established pursuant to the Royal Government of Cambodia’s Sub-Decree No. 37 ANKr.BK on the Organisation and Functioning of the Cambodia Competition Commission. CCC will be in charge of implementing the Law on Competition with the goal to help consumers access high quality, low price, and versatile products and services.

 In accordance with the Law on Competition which was enacted on 5 October 2021, CCC has been designated to be the competent authority to perform key activities including but not limited to receiving complaints in relation to competition.

 In this Update, we highlight the key aspects of CCC.

Determining the Extent of Inland Revenue Board’s Powers to Request for Disclosure of Personal Information: Genting Malaysia Berhad v Personal Data Protection Commissioner & Ors

Under the Income Tax Act 1967 ("ITA"), the Inland Revenue Board of Malaysia ("IRB") has broad powers and tools to ensure effective collection of tax revenue for the Malaysian government. This includes wide information gathering powers such as those provided for under Section 81 of the ITA which empowers the Director General of the IRB ("DGIR") to demand any person to disclose any information or particulars that is in the possession or control of the person for the purposes of the ITA.

The scope of the DGIR’s power to request information was recently tested in the case of Genting Malaysia Berhad v Personal Data Protection Commissioner & Ors (Case No. WA-25-83-02/2020), where the DGIR relied on Section 81 of the ITA to make a blanket demand for customers’ personal data from Genting Malaysia Berhad ("GMB"). The High Court in its decision ruled in favour of GMB and held that the Personal Data Protection Act 2010 ("PDPA") does not allow the DGIR to make such demands in view of the protection afforded to individuals by the PDPA over their personal data.

This Update therefore seeks to provide a summary and brief analysis of the High Court case, and examine the potential impact of the High Court’s decision on organisations carrying out personal data processing activities under the PDPA.

The Future of Security in Digital Spaces – What New Compliance Obligations Can Online Platforms and Businesses Expect?

SGX-Listed Issuers Must Review, Assess and Disclose Exposure or Nexus to Sanctions-Related Risks

Key Changes to Policies for Foreign Workforce, Lower-Wage Workers

1. Changes to requirements for Employment Passes ("EP")
   1. Benchmarking of the minimum qualifying salary for EP holders; and
   2. Introduction of the new Complementarity Assessment Framework (COMPASS).
2. Changes to requirements for S Passes
   1. Benchmarking of the cost of hiring an S Pass holder with reference to the qualifying salary and levy rates.
3. Changes to restrictions in hiring foreign employees
   1. Updates to foreign workforce policies for the construction and process sectors, including phasing out the Man-Year Entitlement (MYE) framework;
   2. Introduction of the new Non-Traditional Source (NTS) Occupation List for the services and manufacturing sectors to allow businesses to hire S Pass holders on Work Permits; and
   3. Launch of the Manpower for Strategic Economic Priorities (M-SEP) scheme to allow qualifying firms some flexibility in hiring S Pass and Work Permit Holders ("WPHs").
4. Other changes
   1. Enhanced coverage of mandatory medical insurance for S Pass and WPHs to better protect employers, who are liable for their employees' medical bills; and
   2. Introduction of the Progressive Wage Mark accreditation to support local lower-wage workers.

Court Rejects Bank's Claim for the Recovery of Monies Paid Under a Letter of Credit on the Basis of Fraud

Singapore Court Issues First "Persons Unknown" Order in Decision Involving Cryptocurrency

New Simplified Track for Intellectual Property Litigation

Bills of Lading Signed by or on Behalf of the Master – Is it an Owner's Bill or a Charterer's Bill?

SGX RegCo's Expectations on Business Valuations & Disclosures

Prakas on Cosmetic Distribution

On 24 February 2022, the Ministry of Commerce issued Prakas No. 0064 on the Requirements of the Cosmetic Distribution ("Prakas"), which came into force on the same day. The Prakas sets out the legal requirements to govern the distribution of cosmetics in Cambodia for the purpose of promoting fair competition, protection of health, and benefits to consumers.

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

MAS Issues New MAS AML/CFT Notice for Financial Institutions Dealing in PSMs, Various Revised AML/CFT Notices for Financial Institutions and Variable Capital Companies

• A new MAS Notice on anti-money laundering and countering the financing of terrorism ("AML/CFT") for financial institutions dealing in precious stones, precious metals and precious products ("PSM AML/CFT Notice"); and
• Various revised MAS AML/CFT Notices applicable to FIs and variable capital companies,

collectively, "MAS AML/CFT Notices". The MAS AML/CFT Notices take effect on 1 March 2022.

The MAS AML/CFT Notices follow MAS' earlier consultation on this topic in July 2021. MAS also issued, on 1 March 2022, its Response to Feedback received on that consultation paper.

This Update briefly highlights some of the main features of the new PSM AML/CFT Notice, as well as some of the key new/revised AML/CFT requirements in various MAS AML/CFT Notices, such as: (a) the AML/CFT requirements relating to digital token services; (b) requirements relating to higher risk shell companies; (c) wire transfer and correspondent account requirements for credit card or charge card licensees; and (d) disclosure requirement for licensed trust companies and approved trustees.

Bill Introduced to Regulate Certain Digital Token Service Providers, Harmonise and Enhance MAS Regulatory Power over FIs

1. Regulation of certain digital token service providers created in Singapore for anti-money laundering and countering of financing of terrorism purposes;
2. Harmonised power to impose requirements on technology risk management;
3. Harmonised and expanded power to issue prohibition orders; and
4. Statutory protection from liability for mediators, adjudicators and employees of an operator of an approved dispute resolution scheme.

Singapore Announces Implementation of Sanctions Against Russia

1. A ban on the export, transit, and transhipment to Russia of strategic military and high technology goods which can be used for both commercial and military purposes; and
2. Prohibitions imposed on financial institutions in Singapore against dealing with, among other things, four designated Russian banks as well as fund-raising activities benefiting the Russian government.

This Update highlights what exporters, shippers, financial institutions, issuers listed on the Singapore Exchange Securities Trading Limited (SGX-ST) and other organisations in Singapore should take note of in navigating the rapidly evolving legal and regulatory changes arising from the sanctions imposed by the Singapore Government and other jurisdictions against the Russian government, and its banks and related entities.

Second Extension of Imposition of Penalty re: Application for E-Commerce Permit/License

On 3 March 2022, the Ministry of Commerce ("MOC") issued a Notification No. 0528 MOC.BRD on the Extension of the Imposition of Penalty in relation to the Application for E-Commerce Permit or License ("Notification").

Per the Notification, all individuals, sole proprietorships, legal entities and branch of foreign companies ("Relevant Persons") who carry out their business activities through electronic platforms have time until the end of June 2022 to apply for permits or licenses for E-Commerce. Relevant Persons who carry out e-commerce activities without a permit or license will be subject to pecuniary fines and the applicable penalties as determined by the Law on E-Commerce. MOC will implement the imposition of such pecuniary fine and penalties from 1 July 2022 onward.

An Employee's Breach of Fiduciary Duties and the Liability of Third Parties for Dishonest Assistance

English Court of Appeal Determines Who is an 'Operator' of a Vessel under the Convention on Limitation of Liability for Maritime Claims 1976

Developments on Russian Sanctions: Russian Banks Banned from SWIFT by EU

And Never the Twain Shall Meet? - Nature and Extent of Overlap Necessary for a Litigation Case Management Stay in Favour of Arbitration