Legal Updates for Sep - 2022
Insurance Claims for Marine Collision: Court Examines Constructive Total Loss, Responsibilities of the Insured, and Notification
In PT Adidaya Energy Mandiri v MS First Capital Insurance Pte Ltd [2022] SGHC(I) 14, the Singapore International Commercial Court ("SICC") was faced with a claim for constructive total loss ("CTL") under a marine insurance policy arising from collision damage. The SICC held that the insurer was not liable to the insured, and considered a number of issues relating to the insurance coverage for the claim, including the proving of CTL; late notice of abandonment; the responsibilities of the insured under certain warranties provided in the policy; and compliance with the policy's claim notification requirements.The insurer was successfully represented by Jainil Bhandari, Aleksandar Georgiev, Kristin Ng and Nathaniel Loh of Rajah & Tann Singapore LLP.
In this Update, we provide a summary of the key points of the judgment and the SICC's consideration of the issues above. 30 Sep 2022 | Singapore
SICC's Jurisdiction over Cross-Border Restructuring and Insolvency Matters
Singapore has been strengthening its position as a key nodal jurisdiction for cross-border restructuring and insolvency. This includes the establishment of the Singapore International Commercial Court ("SICC") to handle international commercial disputes, the adoption of the UNCITRAL Model Law on Cross-Border Insolvency, and the introduction of the Insolvency, Restructuring and Dissolution Act.This process continues with amendments to the laws to provide that the SICC has jurisdiction over international restructuring and insolvency matters. These amendments come into effect on 1 October 2022. This development is expected to further enhance Singapore's capabilities and attractiveness as a forum of choice for cross-border insolvency. In this Update, we highlight the key amendments, and how they will affect the framework for cross-border restructuring and insolvency in Singapore.
29 Sep 2022 | Singapore
Launch of the Code of Practice on Chief Executives' and Board of Directors' Workplace Safety and Health Duties
The Code of Practice on Chief Executives' and Board of Directors' Workplace Safety and Health Duties ("COP") was launched on 19 September 2022, and is expected to be gazetted as an Approved COP by October 2022. Once gazetted, the COP will be relevant in the event of offences under the Workplace Safety and Health Act 2006, as the Courts can consider compliance to the COP in determining the liability of the organisation and its management team.The COP sets out the principles that Company Directors should observe in improving workplace safety and health ("WSH") performance and management, as well as the practical measures that should be taken. It should be noted that WSH includes both physical health and mental well-being, and organisations should ensure that both aspects are addressed in their WSH policies. In this Update, we highlight the key principles and measures in the COP, and the effect of the COP being gazetted. 28 Sep 2022 | Singapore
Presidential Regulation 112: Indonesia's Commitment to Renewable Energy
As the fourth most populous country in the world and the largest economy in Southeast Asia, Indonesia’s energy demands are continuously growing. As of 2021, 87% of current energy are generated from fossil fuel, and only 13% are generated from renewable energy. This is still below the portion pledged by the government of 23% by the end of 2025 and 31% by end of 2050 under the 2007 Energy Law (Law No. 30 of 2007).
To fulfil the foregoing pledge, the government has issued, amended, and revoked several policies in the past 15 years to meet the renewable energy target. The latest of this measure is the issuance of Presidential Regulation No. 112 of 2022 on the Acceleration of Renewable Energy Development for Power Supply (“PR 112”), which the government hopes to be push that Indonesia requires to boost the development of renewable energy.
23 Sep 2022 | Indonesia
The Government of Malaysia Launches the National Energy Policy 2022 – 2040: What it Means for the Renewables Landscape
The National Energy Policy 2022 - 2040 ("NEP") was launched by the Prime Minister of Malaysia on 19 September 2022. The NEP details the government's priorities for the energy sector (encompassing electrical and thermal energy) for the coming two decades. It represents a concerted effort by the government in defining its approach for the energy sector with an aim of driving the country towards benefiting from and embracing the energy transition megatrend. The NEP covers all energy sources including both renewable and non-renewable sources, and also covers the use of energy across all sectors of the economy.
In this Update, we set out below a summary of some of the targets, action plans and initiatives under the NEP, relating mainly to the areas of renewable and alternative energy, grid systems, mobility trends and greenhouse gas reporting.
22 Sep 2022 | Malaysia
Business Trusts (Amendment) Bill Introduced to Align with Regulatory Regimes for Companies and REITs
On 12 September 2022, the Business Trusts (Amendment) Bill ("Bill") was tabled in Parliament for First Reading. The Bill seeks to amend the Business Trusts Act 2004 ("BTA") which governs the registration and regulation of business trusts ("BTs"). Introduced in 2004, a BT is a hybrid structure embodying the features of both a company and a trust. A key advantage of a BT is the ability to pay dividends to unitholders out of its cash profits, unlike a company which may only do so out of accounting profits. Given a BT's similarities with a company, many provisions of the BTA are based on the Companies Act 1967 ("CA"). From the time the BTA came into effect, there have been various amendments to the CA, as well as revisions to the real estate investment trusts ("REITs") regime.In view thereof, the Monetary Authority of Singapore conducted a public consultation in November 2021 concerning proposed amendments to the BTA, mainly to align it with 2014 and 2017 amendments to the CA pursuant to the Companies (Amendment) Acts, "CAA", as well as the regulatory regime for REITs. The amendments to the BTA also seek to streamline and clarify regulatory requirements. The proposed Bill received general support from respondents.
In this Update, we outline certain key amendments to the BTA set out in the Bill. 19 Sep 2022 | Singapore
Recent Court Decisions: Are Myanmar Courts Pro-Arbitration?
Although more than five years have passed since the enactment of the Myanmar Arbitration Law 2016 ("MAL"), there have only been a handful of arbitration-related cases decided in the Myanmar Courts to date.
In this article, we provide a brief summary of three key judgments issued by the Myanmar Courts between 2020 and 2022 concerning provisions of the MAL and consider whether they demonstrate a trend towards an increased support for arbitration as an alternative dispute resolution mechanism.
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15 Sep 2022 | MyanmarClarifying the Right to Private Action under the Personal Data Protection Act
The Personal Data Protection Act ("PDPA") sets out the duties of businesses and organisations regarding personal data. Breaches of the PDPA open up the offending organisation and employees not only to public enforcement action, but also to private civil action by an individual who has suffered loss or damage from the breach. In Reed, Michael v Bellingham, Alex [2022] SGCA 60, the Singapore Court of Appeal provided some much-anticipated clarification on what constitutes "loss or damage", and thus when an individual is entitled to initiate civil proceedings under the PDPA. Notably, the Court held that emotional distress falls within the scope of "loss or damage" under the PDPA.The Court’s decision provides important guidance for organisations and individuals that manage or deal with personal data in the course of operations, shedding light on when they may be exposed to private action for PDPA breaches. This Update provides a summary of the decision and highlights its implications on such organisations and individuals. 15 Sep 2022 | Singapore
NCCS Seeks Feedback on Raising Singapore's Climate Ambition to Achieve Net Zero by 2050
Singapore announced in Budget 2022 that it intends to significantly raise its climate ambition to achieve net zero by 2050. Raising our climate ambition requires a concerted effort from the entire nation and has wide-ranging impact. Against this background, the National Climate Change Secretariat ("NCCS"), Strategy Group, Prime Minister’s Office (PMO-SG) is conducting a public consultation exercise from 5 September 2022 to 26 September 2022 to obtain comments on raising Singapore's climate ambition to achieve net zero by 2050 and how Singapore can attain this goal. Views garnered from the public consultation will be taken into account when Singapore formally revises its LEDS and NDC before the end of 2022.In the public consultation, NCCS seeks views on: (i) whether the timeline to achieve net zero by 2050 is suitable; (ii) whether Singapore's current pledge to "peak emissions at 65 MtCO2e around 2030" should be enhanced; and (iii) what the stakeholders in Singapore (including the Government, businesses and industries) can do to support Singapore's low-carbon transition.
In this Update, we provide a summary of the key discussion points in the consultation paper and highlight the practical impact of these strategies on businesses. 14 Sep 2022 | Singapore
PDPC Launches Guide on Personal Data Protection Considerations for Blockchain Design
The Personal Data Protection Commission ("PDPC") recently launched the Guide on Personal Data Protection Considerations for Blockchain Design ("Guide") to help organisations with blockchain adoption.
The Guide provides principles and considerations on how to comply with the Personal Data Protection Act 2012 ("PDPA") when deploying blockchain applications that process personal data. It also provides guidance on data protection by design (DPbD) considerations for organisations to implement more accountable management of customers' personal data. Specifically, it looks at:
- Considerations and recommendations for personal data on permissionless blockchain networks;
- Considerations and recommendations for personal data on permissioned blockchain networks; and
- Using off-chain approaches to further mitigate personal data protection risks on both permissionless and permissioned networks.
In its Annex, it also covers developing a data protection management programme (DPMP) for blockchain operators.
The Guide will be relevant to organisations that:
- Govern, configure and operate blockchain networks and consortia (i.e. blockchain operators);
- Design, deploy and maintain applications on blockchain networks (i.e. application service providers); and
- Use blockchain applications (i.e. participating organisations).
In this Update, we elaborate on the key points of the Guide. Although largely focused on blockchain technology, some of the Guide's principles and recommendations may be applicable to other Distributed Ledger Technologies (DLTs) as well.
08 Sep 2022 | SingaporeA Shift to Greater Focus on Conglomerate Effects in Singapore
In the past two years, the Competition and Consumer Commission of Singapore has been increasingly more focused on potential competition concerns arising out of conglomerate mergers compared to before. This shift is important to transaction parties filing in Singapore as greater thought may be required at the outset to identify potential conglomerate concerns that could arise, and to canvass arguments to avoid or defend against such concerns. 08 Sep 2022 | SingaporeBills of Lading and the UCP 600
Letters of credit attempt to address a wariness in sellers and buyers of goods in international sales. That wariness may be captured as follows: Sellers are circumspect of shipping to buyers they do not know, in some far-off country, who might never make payment. Buyers, on the other hand, are wary of paying for goods that might never arrive.
To address that wariness, banks – using letters of credit – have placed themselves as intermediaries between sellers and buyers. Thus, sellers can look to a bank for payment, provided that the documents evidencing the sale are in order. Therefore, sellers need not worry about the financial standing of an unknown buyer. Buyers, on the other hand, have the satisfaction of knowing that payment will be made only once the goods are in the hands of a carrier for transportation to the buyer.
It is estimated that up to 15% of all international trade today, totalling over US$1 trillion per year, is financed by letters of credit. It is further estimated that almost all these credits are subject to the Uniform Customs and Practice for Documentary Credits (UCP).
This Update will examine the relationship between the holy trinity of commercial trade: the sale contract, the carriage contract and the financing arrangements. This examination will be done in the context of a recent judgment of Malaysia’s apex court, Malayan Banking Berhad v Punjab National Bank [2022] 4 MLJ 758 (Federal Court).
07 Sep 2022 | MalaysiaTrends in Cartel Enforcement in Singapore
Enforcement against cartels has been relatively quiet as of late, with the number of leniency applications and cartel decisions worldwide having declined in 2020 as compared to 2015. However, with the world gradually adapting to the 'new normal' and the removal of pandemic-era restrictions, competition authorities worldwide, including the Competition and Consumer Commission of Singapore ("CCCS"), are looking at cartel enforcement with a renewed interest.It is therefore critical for businesses in Singapore to be alert to possible infringements under Singapore's competition laws and review their business practices accordingly. This is particularly since the trend in CCCS's cartel enforcement prior to the pandemic demonstrate its increasingly strict stance and stiff penalties for infringing businesses.
This Update highlights the trends in CCC's cartel enforcement with reference to case statistics, and provides practical pointers for businesses to consider.
06 Sep 2022 | Singapore
BPK Prepares a New Regulation to Recover State Losses
Since its establishment in 2006, the Audit Board of the Republic of Indonesia (Badan Pemeriksa Keuangan or "BPK") has been regularly auditing state-owned enterprises ("BUMN") and regional government-owned enterprises ("BUMD") for indications of corruption. As part of this auditing authority, Article 12 of Law No. 15 of 2006 on the Audit Board of the Republic of Indonesia ("BPK Law") also mandates the BPK to regulate further the exercise of its authority to evaluate and determine state losses that result from the actions of the following parties: (i) a treasurer; (ii) a member of the management of a BUMN and BUMD; and (iii) any other related company or institution that manages the state’s finance.
This ability to further regulate also encompasses the authority to recover state losses by requiring the abovementioned parties to compensate the state losses.
However, to date, BPK has yet to issue a regulation to address and accommodate the above mandate specifically relating to the persons listed in points (ii) and (iii), despite already enacting BPK Regulation No. 3 of 2007 on Settlement of State Losses against Treasurers. As a result, there is no clear mechanism on how recovery efforts can be carried out against a member of the management of a BUMN or BUMD and related companies or institutions. In fact, there are different practices on how the state (including via the relevant BUMN, BUMD, or related company and institution) can carry out settlement or recovery efforts. From the information that we have gathered, BPK is currently drafting a regulation to accommodate the mandate under the BPK Law.
01 Sep 2022 | Indonesia