Regional Round-Up

Your Snapshot of Key Legal Developments in Asia

Issue 1 - Jan/Feb/Mar 2022

COVER STORY

    CAMBODIA
    CHINA
    INDONESIA
    LAO PDR
    MALAYSIA
    MYANMAR
    PHILIPPINES
    SINGAPORE
    THAILAND
    VIETNAM

    CAMBODIA

    Second Extension of Imposition of Penalties re: Application for E-Commerce Permit/Licence

    On 3 March 2022, the Ministry of Commerce ("MOC") issued 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 branches of foreign companies ("Relevant Persons") which carry out business activities through electronic platforms have until the end of June 2022 to apply for permits or licences for E-Commerce. Relevant Persons who carry out e-commerce activities without a permit or license will be subject to pecuniary fines and applicable penalties from 1 July 2022 onward.


    Please note that this is the second extension of imposition of penalties in relation to the application for e-commerce permits or licences. The first extension, being until 1 March 2022, was set out in Notification No. 2908 MOC.BRD dated 1 December 2021. 

    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 ("Sub-Decree"). CCC, which comprises 15 members from different ministries, will be in charge of implementing the Law on Competition in furtherance of helping consumers to access high quality, low price, and versatile products and services. CCC will also be tasked to receive complaints in relation to competition. 


    The Sub-Decree sets out the process for the appointment and grounds for removal of members, and the duties and functions of CCC.


    For more information, click here to read our Legal Update.

    Rules on the Management, Establishment, and Functioning of Trust

    On 26 January 2022, the Non-Banking Financial Service Authority issued a new prakas, Prakas No. 003 OSH/Prokor on Rules on the Management, Establishment and Functioning of Trust ("Prakas"). The Prakas aims to set out the rules, conditions, and procedures in controlling, organising, and operating a trust in Cambodia. It is applicable to the operation of all trusts and the conduct of all persons related thereto in Cambodia.


    Under the Prakas, a trust is defined as "the management and disposal of Trust Fund provided for by a Trustor for the benefit of a beneficiary in accordance with the Trust Agreement or regulation in force".


    The establishment of a trust requires approval for registration from the Director General of Trust Regulator in accordance with the Law on Trust, the provisions of the Prakas, and other relevant regulations in force.


    The management, disposal and safekeeping of trust assets shall be done in accordance with the trust agreement and relevant applicable regulations. Assets under trust shall not be used or otherwise disposed of for the discharge of liabilities or debts of the trustee or any other persons notwithstanding for the purpose of rehabilitation, voluntary liquidation or dissolution, bankruptcy or any other similar purposes.


    Not later than six months from the date of the Prakas, all trustees which have registered to operate prior to this Prakas shall apply for a license and/or approval with the Trust Regulator. Within the same period, all trustors which have established but have not registered trusts with the Trust Regulator shall apply for the registration of such trusts and comply with the relevant procedures as may be determined by the Trust Regulator under the Prakas.


    For more information, click here to read our Legal Update.

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

    On 20 January 2022, the Minister 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 ("Prakas 013"). Prakas 013 sets out the formalities and procedures for the issuance and extension of construction permits by MLMUPC for the purpose of implementing Sub-Decree No. 224 ANKr.BK ("Sub-Decree 224"). Prakas 013 applies to construction works which require a construction permit from MLMUPC as stipulated under Article 4 of Sub-Decree 224. 


    Prakas 013 sets out the prescribed form for the request letter and required documents for an application for a construction permit. For property development projects, an application for a construction permit will require the following additional documents:


    1. Land development licence/permit issued by the competent authority; and
    2. Land development master plan issued by the competent authority.

    For more information, click here to read our Legal Update.

    Cambodia's New Law on Investment

    On 15 October 2021, the new Law on Investment was promulgated by virtue of Royal Kram No. NS/RKM/1021/014 ("Law on Investment") on an urgent basis, and has been in force since 16 October 2021 throughout the country. The Law on Investment abrogates the old Law on Investment and its amendment. It applies to all qualified investment projects ("QIPs"), expanded QIPs and guaranteed investment projects (collectively referred to as "Investment Projects").


    An application for an Investment Project must  be submitted online to the Council for Development of Cambodia ("CDC") or the Provincial-Municipal Investment Sub-Committees ("Sub-Committees") via this link that brings the users to CDC's information technology platform. CDC or the Sub-Committees will issue a registration certificate ("Registration Certificate") within 20 working days if such proposed Investment Project is not listed in the "negative list" of prohibited or restricted business lines or sector.


    The Registration Certificate is tied to a bar code or QR code, or other technology system that provides preliminary information pertaining to the registered Investment Project. The registered Investment Project will be automatically implemented upon obtaining the Registration Certificate.


    Any person whose sector/investment activity is (i) listed in the Law on Investment; (ii) does not belong to the negative list; and (iii) is certified as a QIP is eligible to obtain basic tax and/or customs duties incentives in whole or in part.


    For more information, click here to read our Legal Update.

    CHINA

    China Releases Implementing Rules of the Administrative Regulations on Human Genetic Resources (Draft for Comments)

    The People's Republic of China ("PRC") Ministry of Science and Technology ("MOST") issued the Implementing Rules of the Administrative Regulations on Human Genetic Resources (Draft for Comments) (人类遗传资源管理条例实施细则(征求意见稿), "Draft HGR Rules") on 22 March 2022 for public comments. The Draft HGR Rules contain seven chapters and 122 articles, covering the detailed requirements on the collection, preservation, utilisation, international cooperation and cross-border transfer of human genetic resources ("HGR"), as well as provisions regarding the relevant workflow, supervision, inspection and administrative penalties. The Draft HGR Rules intend to provide detailed rules for relevant parties to comply with the Regulation on Human Genetic Resources (人类遗传资源管理条例) which took effect in 2019.


    Based on the Draft HGR Rules, HGR includes HGR materials (such as organs, tissues and cells which contain human genomes, genes and other genetic substances) and HGR information generated from the utilisation of HGR materials.


    Article 11 of the Draft HGR Rules provide that "foreign parties" are prohibited from collecting, preserving or transferring Chinese HGR to a foreign country or place. If they do need to make use of China's HGR to carry out scientific research activities, they shall cooperate with qualified Chinese partners, which will be subject to review, approval or filing by MOST's HGR Office.


    It is noteworthy that the determination of a "foreign party" is not only based on its domicile / place of establishment, but also whether it is established or actually controlled by a foreign organisation or individual. Based on the definition of "actual control" under the Draft HGR Rules, even if a foreign organisation or individual does not hold equity interests in a PRC-domiciled entity, it may still be deemed as a "foreign party" if a foreign organisation or individual can, through contractual arrangements, exert control or decisive influence over its major matters, such as decision-making, operation and management. This means that a PRC-domiciled company adopting the VIE (variable interest entity) structure may be deemed as a foreign entity and cannot avoid the relevant restrictions under the Draft HGR Rules.


    We would like to highlight that there are some overlaps between HGR information and "important data" and "personal information" under the PRC Cybersecurity Law, the PRC Data Security Law and the PRC Personal Information Protection Law. Accordingly, any provision of the HGR information to foreign entities shall also be subject to the relevant requirements under such laws and regulations on the cross-border transfer of personal information and important data. However, it is subject to further clarity from the authority whether the cross-border transfer of HGR data needs to fulfil the cross-border data transfer security assessment procedures of both MOST and the Cyberspace Administration of China.

    PRC Supreme People's Court Issues the Interpretations on Relevant Issues Concerning the Application of the PRC Anti-Unfair Competition Law

    On 17 March 2022, the PRC Supreme People's Court ("SPC") issued the Interpretations on Relevant Issues Concerning the Application of the PRC Anti-Unfair Competition Law (关于适用《中华人民共和国反不正当竞争法》若干问题的解释, "Judicial Interpretations"), which has come into force on 20 March 2022. It replaces the Interpretations on Relevant Issues Concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition (关于审理不正当竞争民事案件应用法律若干问题的解释) issued in 2007. The Judicial Interpretations consist of 29 articles, including:


    1. a further clarification of Article 2 of the PRC Anti-Unfair Competition Law ("AUCL");
    2. relevant definitions of "business operators" and "business ethics"; and
    3. detailed provisions about unfair-competition practices such as counterfeiting, false advertising, unfair competition on the Internet and other important issues related to the implementation of the AUCL.

    Clarification of Article 2 of the AUCL


    Article 2 of the AUCL is a catch-all general clause to regulate various unfair competition acts that are not explicitly stipulated in the AUCL. Clause 1 of the Judicial Interpretations clarifies that Article 2 of the AUCL can apply to an act that "disrupts market competition order, infringes the legitimate rights and interests of other business operators or consumers" but is not listed in Chapter II (Acts of Unfair Competition) of the AUCL or in the provisions of other intellectual property ("IP") laws. This clause distinguishes the circumstances of applying AUCL from other IP laws.


    Definition of "Business Operators" and "Business Ethics"


    Clause 2 of the Judicial Interpretations defines "other business operators" as entities in the market who may potentially compete for trading opportunities with and cause damage to the competitive advantages of a business operator during production or commercial activities.

    Clause 3 of the Judicial Interpretations defines "business ethics" in the AUCL as a code of conduct that is commonly followed and recognised in a specific business field. Clause 3 also stipulates relevant factors to be considered by courts in determining whether a business operator violates business ethics, including the:


    1. specific circumstances of the case;
    2. industry rules or commercial practices;
    3. subjective state of the business operator;
    4. willingness of the counterparty to choose to enter into the transaction;
    5. impact on the rights and interests of consumers;
    6. order of market competition; and
    7. social public interests.

    Recognition of "Imitation and Confusion"


    Clauses 4 to 15 of the Judicial Interpretations elaborate on the act of "Imitation and Confusion" (which will lead people to mistakenly believe that certain commodity is another business operator’s commodity or has a specific connection with another business operator) in the AUCL. The clauses cover, among others, the definition, scope and criteria of "signs with certain influence", the exclusion of certain signs from the protection by the AUCL, and the scope of market entities whose names can be protected.


    Unfair Competition on the Internet


    Clauses 21 and 22 of the Judicial Interpretations further explain and define two kinds of unfair competition acts on the Internet, including forcing a URL forwarding with inserted link without the consent of the user or other business operators, and maliciously interfering with or destroying the network products or services provided by other business operators.


    According to a press conference held by the Third Civil Division of the SPC, the issuance of the Judicial Interpretations is a response to the new types of disputes arising from the rapid economic development, the substantial expansion of market entities and the accelerated integration of online and offline markets, and the profound changes of the competitive relationship of business operators. It has great significance for the in-depth implementation of the country's fair competition policy, the improvement of the fair competition system and the promotion of the construction of a high standard market system.

    Draft Regulations on Pop-up Push Notifications

    On 2 March 2022, the Cyberspace Administration of China ("CAC") issued the draft Administrative Regulations on Internet Pop-up Push Notifications (互联网弹窗信息推送服务管理规定(征求意见稿) ("Draft Regulations"), signalling the further tightening of regulations on the Internet content in China.


    The Draft Regulations apply to the provision of push notification services through operating systems, terminal devices, application software, websites and such other services within the territory of the People's Republic of China. The application scope is broad enough to cover almost all electronic devices that can access the Internet.


    With an intention to build a healthy and positive network, the Draft Regulations set out some restrictions on the content of push notifications in Article 5, such as:


    1. prohibition on illegal and negative information as defined in the Provisions on Governance of Network Information Content Ecology (网络信息内容生态治理规定);
    2. prohibition on push notifications containing news reports without Internet news information services licenses;
    3. requiring push notifications containing news reports to adhere to additional rules, including a requirement for the source of news to come from the list of government-approved news sources published by CAC in October 2021;
    4. prohibition on using algorithm models that violate laws and regulations or violate ethics by inducing users to become addicted and consume excessively;
    5. prohibition on abusing algorithms to profile minor users and pushing information to minor users that may affect their physical and mental health; and
    6. push notifications containing advertisements should be conspicuously marked "Advertisement" and can be turned off with one click.

    In the event of non-compliance with the Draft Regulations, the push notification service providers will be subject to warnings, fines, suspension of capacity to supply push notification services, and even suspension of business operations.

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

    The Supreme People's Court of the People's Republic of China ("PRC Supreme Court") has issued a judgment (2016 Supreme Court Civil Application No. 530) in which it held that a bill of lading issued for and on behalf of the master, but which did not otherwise identify the carrier, should be treated as having been issued on behalf of the time charterers (instead of the owners) of the vessel.


    To date, there has not been any PRC decision in which the reasoning in the abovesaid judgment has been applied. While the uncertainty persists, it may be prudent for cargo interests to take steps to ensure that bills of lading in respect of cargoes for import into or expert from China should expressly identify who is the carrier. In the alternative, the bills of lading may include an express governing law and arbitration clause in favour of a jurisdiction where a bill of lading issued by the ship master would typically be viewed as an owners' bill. 


    For more information, click here to read our Legal Update.

    Draft Law Potentially Lifts Prohibition on Ad Hoc Arbitrations in China

    In China, the current Arbitration Law does not recognise the concept of ad hoc arbitration. The current Arbitration Law expressly provides that an arbitration agreement must designate an arbitral institution, failing which it is invalid. However, on 30 July 2021, the Ministry of Justice of the People's Republic of China published the Arbitration Law of the People's Republic of China (Amended Version) (Draft for Comments) ("Draft Arbitration Law") for public consultation. The Draft Arbitration Law introduces for the first time the rules of ad hoc arbitration into the Chinese arbitration regime. Nonetheless, this is not the final version and is subject to further amendments.


    In the Draft Arbitration Law, there are three new articles which set out the rules of ad hoc arbitration in Chinese arbitration regime, namely, Articles 91, 92 and 93. According to these articles, the application of ad hoc arbitration in China is limited to disputes that have a foreign element and are commercial in nature. The original arbitral award issued by an ad hoc arbitration tribunal must be submitted to an intermediate people's court for recording purpose. Given that the new rules are very brief and lack details, the parties who wish to refer their disputes to ad hoc arbitration in China should specify as many details as possible in the arbitration agreement, so as to avoid any uncertainty.


    Click here to read the full article on Arbitration Asia, Rajah & Tann Asia's website covering 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. 

    INDONESIA

    Multi-Voting Shares: Sweetener for Tech Start-Up IPOs?

    At the end of last year, Indonesia's Financial Services Authority ("OJK") issued OJK Regulation No. 22/POJK.04/2021 ("Regulation 22") on multiple voting rights shares. Regulation 22 allows issuers deemed as having innovation and a high growth rate, specifically technology start-ups that intend to go public, to implement multiple voting rights shares.


    In Regulation 22, OJK sets out the requirements to implement multiple voting rights shares, the obligations imposed on shareholders holding multiple voting rights shares, and the requirements that apply if the relevant issuer intends to conduct certain corporate actions.  


    Most recently, the Board of Directors of the Indonesia Stock Exchange issued Decree No. Kep-00014/BEI/03-2022 ("Decree") to complement Regulation 22 and the new listing regulation (Regulation I-A Kep-00101/BEI/12-2021), which was also issued in 2021. The Decree eliminates the gap between Regulation 22 and the new listing regulation. Additionally, it stipulates that in a public company with multiple voting rights shares, shares in scrip form may be counted as free float shares if the escrow account to hold such scrip shares is not ready before the start of the lock-up period. The Decree also states that scrip shares must also fulfil the other criteria for free float shares as set out in the new listing regulation to be considered as free float shares.

    Committing to a Greener Future: Indonesia Embraces Implementation of Carbon Economic Value

    Following Singapore's lead, Indonesia became the second country in Southeast Asia to regulate its carbon market. Under Presidential Regulation No. 98 of 2021 ("Regulation"), the government introduced, among other matters, the concept of carbon economic value, as well as the regulatory framework on carbon pricing and carbon trading arrangements.


    The Regulation also sets out mitigation and adaptation actions, which are the two main methods to tackle climate change. Both methods apply to the public and the private sectors, and require them to take actions such as establishing a greenhouse gas emissions inventory and increasing the carbon efficiency of power generation and transportation.


    The government will also use carbon economic value, which will be implemented through carbon trading, economic incentives, and carbon levies.


    As with other great endeavours, details on the implementation of the Regulation will be fleshed out in future ministerial level regulations. 

    Indonesian Government Mandates BPJS Membership to Buy Lands and Properties

    Starting from March 2022, buyers looking to buy properties in Indonesia must have an active membership in the country's social security program on health (known as BPJS Kesehatan). Failure to do so will delay the registration of the right over the purchased properties in the local land office.


    The BPJS Kesehatan membership requirement applies to individual and corporate buyers, where the latter would have to show evidence of its directors' BPJS Kesehatan membership. Buyers with inactive membership or those who are not yet a member of BPJS can still register their right by including a statement letter that states their willingness to activate their membership.


    While the circular letters envision the creation of an integrated system between the Ministry of Land Affairs/National Land Agency and BPJS Kesehatan, pending the creation of the system, the heads of the land offices will have to verify the membership status manually by coordinating with the local BPJS Kesehatan office.

    LAO PDR

    Encouragement of Telecommunication Activities through Amended Law on Telecommunications

    On 23 March 2022, the newly amended Law on Telecommunications No.05/NA dated 16 November 2021 ("Amended Law"). was published on the Electronic Official Gazette ("e-Gazette"). It will come into effect from 7 April 2022, 15 days after its publication on the e-Gazette. The Amended Law aims to support telecommunications service operations in Lao PDR by encouraging domestic and foreign individuals, legal entities and organisations to invest in the construction, development and extension of telecommunication networks. The key features of the Amended Law include the following:


    Types of telecommunication service operations


    There are two types of telecommunication service operations: (i) telecommunication services, and (ii) provision of telecommunication facilities.


       a. Telecommunication services


    Telecommunication services is a form of business operation in which one or more telecommunication companies have their own networks in carrying out the business operation. It consists of the following:


    • Mobile communication;
    • Landline telephone services;
    • Internet services;
    • Satellite communication;
    • Communication Survey and location search;
    • Intelligent Transport System (ITS);
    • Internet service using a high-altitude platform station (HAPS);
    • Mobile phone service using high altitude platform station as imt base stations (HIBS);
    • Auxiliary services;
    • Application services;
    • Internet of Things (IoT); and
    • Other telecommunication services.

       b. Provision of telecommunication facilities


    The provision of telecommunication facilities is a form of business operation which involves one or more activities related to the telecommunications business. It consists of the following activities:


    • Rental of telecommunication infrastructure;
    • Assembling, manufacturing and/or distributing telecommunication equipment;
    • Installation-repair of telecommunication equipment;
    • Importation and exportation of telecommunication equipment;
    • Telecommunication consulting;
    • Data Center Services; and
    • Provisions of other telecommunication facilities.

    Term of investment and validity of licence


    The term of investment in telecommunications business is not more than 15 years and can be renewed. The telecommunication operating license is valid for one year. This can also be renewed.


    The Technology and Communications Sectors of MTC will assess the business application documents from applicants for a telecommunication operating licence. Once satisfied that the necessary documents have been submitted, it will issue such licence within 30 days from receipt of the documents.

     

    The Amended Law also stipulates the conditions for conducting telecommunications business.

    Instruction on the Procedures for Applying for a Lao PDR Entry-Exit Permit during COVID-19 Pandemic

    On 17 March 2022, the Ministry of Foreign Affairs ("MOFA") issued Instruction No. 2143/MOFA.TFC on the Procedure for Applying for a Lao PDR Entry-Exit Permit during COVID-19 Pandemic ("Instruction"). The Instruction replaces Instruction No.4881/MOFA.TFC dated 31 December 2021. Individuals wishing to enter into or depart from Lao PDR must comply with the procedures and measures set out in the Instruction. Among other things, individuals wishing to travel to Lao PDR must have with them certificates of COVID-19 vaccination and tested negative in an RT-PCR test taken within 72 hours prior to their entry into Lao PDR.  They must also register for a Lao Green Pass with a QR code via this link: laogreenpass.gov.la. Specific requirements apply to various types of travellers such as diplomats and representatives of international organisations, investors and technical officers involved in businesses in Lao PDR, returning Lao citizens, and returning spouses of Lao citizens.


    For more information, click here to read our Legal Update. 

    Notice on Adding an Account Number Associated with Providing Electronic Money Services

    Pursuant to Instruction No.666/PSD dated 24 August 2021 on Providing Electronic Money Services ("Instruction"), the Payment Systems Department of Bank of Lao PDR ("BOL") issued on 8 February 2022 Notice No.133/PSD on Adding an Account Number Associated with Providing Electronic Money Services ("Notice"). The Notice, which replaces Notice No.537/PSD dated 16 July 2020, applies to the commercial banks that allow customers to open guarantee accounts for electronic money services ("Trust Account"), and provide electronic money services from such deposit accounts. The Notice requires these commercial banks to add a designated account number associated with the provision of electronic money services to the account number of specific types of accounts. Affected commercial banks were given until 15 February 2022 to comply with the Notice.  

     

    The account numbers that must be added are set out as follows:


       a. 2131160 – for Trust Accounts

    • Used for non-bank electronic money providers required to open a Trust Account with a commercial bank
    • Used as savings accounts, where deposits and withdrawals can be made at any time and the interest rate is set out by the bank

       b. 2201800 – for Advance Receipts Accounts from customers who use electronic money services

    • Used for electronic money providers that are commercial banks
    • Accounts to track and store money received in advance from users of electronic services; no interest is earned from these accounts

       c. 2137161 – for overdue interest on deposits guaranteeing electronic money services

    • Used as an account to track accrued interest arising from a deposit account to guarantee electronic money services

       d. 4102160 – for interest expense on deposits that guarantee electronic money services

    • Used as an account to track interest expenses incurred from a deposit account to provide electronic money services (2131160).

    Upon completion of the addition of the designated account numbers as specified in the Notice, banks were to report their compliance to BOL in writing within five working days. Non-bank financial service providers must open Trust Accounts pursuant to Notice No.134/PSD on Opening a Guarantee Account for Electronic Money Services and report their compliance to BOL within five working days. (Please refer to the write-up below titled "Notice on Opening a Trust Account" for more information on this requirement.)

    Notice on Opening a Trust Account

    Pursuant to Instruction No.666/PSD dated 24 August 2021 on Providing Electronic Money Services ("Instruction"), the Payment Systems Department of Bank of Lao PDR ("BOL") issued on 8 February 2022 Notice No.134/PSD on Opening a Guarantee Account for Electronic Money Services ("Trust Account") ("Notice"). The Notice replaces Notice No.537/PSD dated 16 July 2020. The Notice requires non-commercial bank electronic money providers to open a Trust Account with a commercial bank for the purpose of depositing a sum of money which will serve as a collateral for electronic money issuance as specified in the Instruction.


    The Notice sets out the following guidelines on opening a trust account:  


    1. A non-commercial bank electronic money provider must open a Trust Account (account number 2131160) ("new Trust Account") with a commercial bank pursuant to Notice No.133/PSD on Adding an Account Number Associated with Providing Electronic Money Services, for the above-stated purpose and the Instruction.
    2. The interest earned from the new Trust Account must not be added to the Trust Account. The non-commercial bank electronic money provider holding the savings account which is newly opened shall certify such interest.
    3. A non-commercial bank electronic money service provider which opened a Current Account-type Trust Account before the issuance of the Notice must close such Trust Account by transferring the money therein to the new Trust Account. This must be reported to BOL in writing within February 2022.
    4. A non-bank electronic money service provider which opened a Fixed/Term Deposit Account-type Trust Account before the issuance of the Notice may continue to deposit into such Trust Account until the maturity of the deposit. Thereafter, it needs to close the Trust Account by transferring the money therein to the new Trust Account. This must be reported to BOL in writing within five working days after closing the Trust Account.
    Signing Ceremony for Digital Property Business Pilot Agreement

    On 27 January 2022, the Ministry of Technology and Communications ("MTC") and Lao VIP Investment Development SOLE Co., Ltd. ("Lao VIP") signed the Digital Property Business Pilot Agreement. The signing of this agreement is in line with the Prime Minister's guidance on digital asset exploration in Lao PDR, as well as the implementation of the vision, strategy and national digital economy development plan recently approved by the National Assembly.


    Mr. Keonakhone Xaysulian, Director General of the Department of Digital Technology of MTC, said: "Currently, the Fourth Industrial Revolution is a global trend spreading around the world, such as Blockchain or data binding group is a technology that is emerging in the globalization and investment in the global economy 4.0. With the unique features of Blockchain enabling electronic value exchange through computer networks, digital asset transactions have resulted in the creation of cryptocurrencies and digital tokens to be traded or exchanged. For Lao PDR, there is potential in terms of electricity, which is currently generated in our country, but there is still some electricity that cannot be exported. Therefore, it can be seen that the efficient use of electricity generated to generate revenue for the country can also create a stable revenue base, a source of monetary revenue that can increase the government's treasury. In order to conduct such business, our government, as well as the relevant ministries and departments, have issued regulations governing, encouraging, tightening and enforcing the law in order to facilitate domestic entrepreneurs".


    During the signing ceremony, Ms. Viphaphone Konsin, President of Lao VIP noted that "the signing of this agreement will be beneficial in encouraging the business sector to be strong and create jobs for the Lao people as well as a way to increase revenue to the state budget and export electricity in place".


    At the ceremony, Lao VIP fulfilled its obligations to pay US$500,000 to the Lao Government for the issuance of the Patent of Digital Property Exploitation License. In addition, Lao VIP also donated LAK500,000,000 to MTC to support the management of digital asset management activities in Lao PDR.

    MALAYSIA

    New Licensing Requirement on the Provision of Cloud Services Comes into Force

    Pursuant to the the "Advisory Notice on Cloud Service Regulation Introduced to Increase Accountability for User Data Security and Sustainability of Services", as well as the "Information Paper on Regulating Cloud Services" issued by the Malaysian Communications and Multimedia Commission ("MCMC"), the new licensing requirement on the provision of cloud services has come into force with effect from 1 April 2022.


    Under the new licensing requirement, the following cloud service providers are required to be registered under the Applications Service Providers Class ("ASP(C)") licence:


    1. a local data centre assisting foreign cloud providers to provide their Platform-as-a-Service ("PaaS") or Infrastructure-as-a-Service ("IaaS") cloud services to end users in Malaysia; or
    2. a locally incorporated company providing PaaS or IaaS cloud services to end users in Malaysia.

    Where an ASP(C) licence is required, cloud service providers should immediately apply for an ASP(C) licence and put in place the relevant measures to ensure compliance with all such instruments, guidelines, technical standards, or regulatory policies as may be imposed by MCMC from time to time. Any failure by a cloud service provider to obtain an ASP(C) licence is an offence under the Communications and Multimedia Act 1998 and such service provider shall, on conviction, be liable to a fine not exceeding RM500,000 (where US$1.00 = RM4.20, approximately), or to imprisonment for a term not exceeding five years, or both. Such service provider shall also be liable to a further fine of RM1,000 for every day or part of a day during which the offence is continued after conviction.


    For more information, click here to read our Legal Update.

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

    Pursuant to Section 7 of the Personal Data Protection Act 2010 ("PDPA") (Notice and Choice Principle), the Personal Data Protection Department (Jabatan Perlindungan Data Peribadi or "JPDP") has recently issued a Guide to Prepare Personal Data Protection Notice ("Guidance Note"). The Guidance Note guides data users in preparing simple but comprehensive personal data protection notices ("privacy notices") which are aligned with the current business ecosystem and the personal data protection landscape in Malaysia.


    This update provides a brief summary of the Guidance Note, which among others, clarifies the existing requirements on privacy notices under the PDPA, and provides for additional requirements for the preparation and implementation of privacy notices. While it has not been expressly stated whether the requirements under the Guidance Note are compulsory or recommended best practices, all data users should review and reassess their existing privacy notices and make any necessary amendments to ensure they are in compliance with the Notice and Choice Principle as well as the Guidance Note.

    High Court Issues Key Decisions on Schemes of Arrangement

    The recent decision of the Malaysian High Court in Re Top Builders Capital Bhd & Ors [2022] MLJU 1 reaffirms some key principles about schemes of arrangement ("SOA"). These include:


    1. the classification of creditors in the SOA is to be based on the similarity of legal rights;
    2. the contents of the explanatory statement(s) should be clear, complete, and not misleading, and there is a need to be selective with the facts;
    3. that the proceedings of scheme meeting held virtually are valid;
    4. the scheme Chairman could extend the deadline for the submission of proof of debt forms for the SOA without a Court order;
    5. there must be some prima facie evidence of impropriety to allow scheme creditors to inspect the proof of debt forms of other scheme creditors; and
    6. the issue of whether to discount or to disregard the votes of wholly-owned subsidiary creditors is a matter of discretion for the Court based on several discretionary factors.

    For more information, click here to read our Legal Update.

    Climate Risk Management and Scenario Analysis (Exposure Draft)

    In late 2021, Bank Negara Malaysia ("BNM") issued an exposure draft on Climate Risk Management and Scenario Analysis ("Exposure Draft"). The Exposure Draft sought to address the challenges to financial stability posed by climate change by laying out principles and requirements that financial institutions must comply with in its management of climate-related risks.


    Since the submission period for feedback to the Exposure Draft has passed, it remains to be seen whether the policy document will come into effect on 1 June 2022 as proposed. There could also be further developments to the policy document following the public feedback, although it is highly likely that the overarching principles are here to stay.


    For more information, click here to read our Legal Update.

    Extension of Part IV of AMLA to IEOs, Digital Custodians and Digital Asset Advisors; 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 came into effect. These extend the application of Part IV of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ("AMLA") to various fintech players.


    Part IV of the AMLA deals with reporting obligations of reporting institutions, including the duties of record-keeping, customer due diligence, having a compliance programme, and other requirements related to disclosure, tip-off, and investigation or protection of reporting persons and institutions.


    For digital asset players (i.e. digital asset exchanges (DAX) and initial exchange operators ("IEOs"), the language has been widened to include intermediaries and those involved in the provision of advisory services relating to the offer or sale of digital currencies or digital tokens. There is now explicit clarity that digital tokens are also included – previously reference was only made to digital currencies – meaning that digital asset custodians are also now bound by Part IV of the AMLA.


    The amendments also affect the definition of a "reporting institution" bringing other fintech players such as equity crowdfunding (ECF), peer-to-peer (P2P), property crowdfunding and e-services platforms into the fold. IEOs which facilitate the issuance of digital tokens are now also included. The amendments are unlikely to cause much operational concern for these players as they already have to comply with AMLA requirements via guidelines imposed by the Securities Commission of Malaysia and Bank Negara Malaysia. However, this is now more clearly grounded in primary legislation.


    For more information, click here to read our Legal Update.

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

    The recent case of Genting Malaysia Berhad v Personal Data Protection Commissioner & Ors is significant as it is the first time the Malaysian courts heard a challenge to the powers of the Director General of the Inland Revenue Board ("DGIR") to request for disclosure of personal data under the Income Tax Act 1967 ("ITA"). Here, one of the grounds of the challenge was based on the protection afforded under the Personal Data Protection Act 2010 ("PDPA").


    The High Court ruled in favour of Genting Malaysia Berhad ("GMB") and held that the PDPA does not allow the DGIR to make blanket requests for access to personal data of all GMB’s customers, based on the following reasons:


    1. The blanket demand made by the DGIR is an infringement of the right to life and personal liberty under Article 5(1) of the Federal Constitution, which guarantees the fundamental liberties of every person including the right to privacy.
    2. The DGIR cannot use the ITA as an instrument of fraud to conduct "fishing expeditions" to gain bulk access to the personal data of GMB’s customers.
    3. The exemptions under Section 39 and 45 of the PDPA cannot be relied upon by the DGIR, but may be relied upon by the data user (i.e. GMB).
    4. To the extent of any conflict between the ITA and the PDPA, the PDPA shall prevail as it is a specific and more recent legislation enacted for the protection of personal data.
    5. Notwithstanding Section 3(1) of the PDPA, which exempts the Federal Government and the State Government from the PDPA, regulatory authorities that are statutorily incorporated body corporates (e.g. the Inland Revenue Board) are still bound by the PDPA.

    For more information, click here to read our Legal Update.

    MYANMAR

    Central Bank of Myanmar Updates

    Extension of Reduction Period of Minimum Cash Reserve Ratio at Banks


    Under Notification No. 3/2022, the Central Bank of Myanmar ("CBM") has extended the temporary reduction period of the minimum cash reserve ratio at banks to 3% of the total deposits of customers from 30 March 2022 to 31 March 2023. Notification No. 3/2022 repeals CBM Notification No. 19/2021. Click here to access Notification No. 3/2022 (in Burmese).


    CBM Eases Cash Withdrawal Restrictions for Certain Businesses


    On 1 April 2022, CBM issued an order instructing banks to allow cash withdrawals for factories in industrial zones, businesses and development projects operating under the government budget, as well as for health and religious purposes. As CBM strives to improve the management of cash flows nationally, the banks have been allowed to ease cash withdrawal restrictions subject to specific conditions.


    1. Factories in industrial zones are allowed unlimited cash withdrawals for employee salaries, as well as a maximum withdrawal of MMK100 million per week for the purchase of raw materials.
    2. Government departments are allowed a maximum cash withdrawal of MMK100 million per week for training expenses and cash rewards.
    3. A cash withdrawal of MMK100 million per week is allowed for government projects and logistic expenses of government departments in relation to the regional and rural development projects under government budget.
    4. Private individuals are allowed a maximum cash withdrawal of MMK10 million per week, subject to the presentation and submission of the required documents to CBM.
    Enactment of Union Taxation Law 2022

    On 30 March 2022, the SAC enacted the Union Taxation Law 2022 ("UTL") for the forthcoming financial year 2022-2023. The UTL introduces a one-time commercial tax of MMK20,000 for selling and activating a new SIM card and a 15% commercial tax on the income earned from internet connection services. The UTL also puts in place revised personal income tax rate ranges for undisclosed sources of income that are still subject to income tax as shown in the table below.


    Under Union Taxation Law 2021

    Under Union Taxation Law 2022

    Income (MMK)

    Income Tax Rate

    Income (MMK)

    Income Tax Rate

    From

    To

    From

    To

    1

    100,000,000

    3%

    1

    300,000,000

    3%

    100,000,001

    300,000,000

    5%

    300,000,001

    600,000,000

    5%

    300,000,001

    1,000,000,000

    10%

    600,000,001

    1,000,000,000

    10%

    1,000,000,001

    3,000,000,000

    15%

    1,000,000,001

    3,000,000,000

    15%

    3,000,000,001 and above

    30%

    3,000,000,001 and above

    30%



    Enactment of Myanmar Police Act

    On 25 March 2022, the Ministry of Home Affairs enacted the Myanmar Police Act. One of the main objective of the law is to safeguard national security and protection. Some of the provisions of the law extend the involvement of police forces in the state's defence and security affairs for a certain period when necessary. Section 6 also allows the State Administration Council ("SAC") to reform the duties and structure of the police forces as may be necessary. The Myanmar Police Act abolishes the four previous police laws i.e., Rangoon Police Act, 1899, the Police Act 1945, the Karen State Police Act 1959, and the Kayah State Police Act 1959. 

    Ministry of Commerce: Additions to List of Goods Requiring Import/Export Licences

    The Ministry of Commerce ("MOC") has issued three newsletters that add items to the list of goods that need import and export licences for their importation and exportation, as the case may be. This is a follow up step by MOC in an attempt to exercise foreign exchange control, and ensure national and food security as well as environmental conservation.


    1. MOC Newsletter No. 1/2022: Goods requiring import licences include 451 (based on a 6-digit HS Code) or 826 (based on a 10-digit HS Code) categories / sub-categories of goods in relation to foodstuffs, plastic-based finished products and household products, wood pulp, silk, cotton, carpet and other flooring, cotton fabric, glass products, and bicycle and automobile accessories. The newsletter was issued on 25 January 2022 and came into effect on 1 March 2022. (Note: The Newsletter is in Burmese.)
    2. MOC Newsletter No. 2/2022: Goods requiring import licences include 57 (based on a 6-digit HS Code) or 141 (based on a 10-digit HS Code) categories / sub-categories of commodities in relation to plastic raw materials. The newsletter was issued on 1 March 2022 and came into effect on March 2022. (Note: The Newsletter is in Burmese.)
    3. MOC Newsletter No. 3/2022: Goods requiring export licences include 11 (based on a 6-digit HS Code) or 12 (based on a 10-digit HS Code) commodity lines including corn, cereal flour, maize, corn flour and 12 other goods. The newsletter was issued on 9 March 2022 and came into effect on 1 April 2022. (Note: The Newsletter is in Burmese.)
    Intellectual Property Department – Refiling of Registered Trademarks

    During the training sessions held from 25 February 2022 to 1 March 2022, the Intellectual Property Department ("IPD") of the Ministry of Commerce shared updated information on topics such as trademark applications and representation forms, as well as technical knowledge in relation to online filing and payment systems.


    IDP also stated that the second phase of the soft opening for the re-filing of registered trademarks, together with the official rates for re-filing trademarks through e-payment, will be announced in due course, possibly within the current year.

    Draft Cybersecurity Law

    On 13 January 2022, the Ministry of Transport and Communications ("MOTC") circulated the Draft Cybersecurity Law ("Draft CS Law") to a number of Ministries. The Draft CS Law seeks to enhance privacy and data protection as well as introduce measures for cyber security against cyber-attacks and terrorism.


    The Draft CS Law has similarities to the previous draft circulated to mobile network operators and licensed telecoms service providers for feedback on 9 February 2021 ("9 February 2021 draft"). However, the key differences between the Draft CS Law and the 9 February 2021 draft include:


    1. Additional clarity regarding the concept of "digital service providers" (with the key implication being that providers of digital platform services, such as Facebook, TikTok, etc., would need to register with the authorities in Myanmar before they can carry out their businesses); and
    2. the requirement to obtain MOTC's prior approval for the use of a virtual private network (VPN).

    It is viewed that these provisions are aimed to quash dissent and curb the free flow of information in Myanmar, including freedom of speech. 

    Myanmar's State Administrative Council Seeks Revenue through Digital Lottery

    Before the end of April 2022, the military regime plans to initiate an online lottery system in partnership with private companies, with several local and foreign firms. The firms are still in talks on whether to allow the participants to use bank accounts and other authorised payment channels. This initiative aims to mitigate the slump in tax collections from the traditional (i.e. physical) lottery system. 

    PHILIPPINES

    Amendments to the Public Service Act to Ease Foreign Equity Limitations

    On 21 March 2022, President Rodrigo R. Duterte signed into law Republic Act No. 11659 ("Amended PSA"), amending Commonwealth Act No. 146 or the Public Service Act. The Amended PSA aims to strengthen the regulation of public services and processes for the protection of national security, but also ensure a reasonable rate of return for these public services. The Amended PSA removes foreign equity restrictions for some entities by limiting the scope of what are considered as "public utilities".

     

    Under the Amended PSA, "public utilities" refer to public services that operate, manage, or control for public use any of the following: (i) distribution of electricity; (ii) transmission of electricity; (iii) petroleum and petroleum products pipeline transmission systems; (iv) water pipeline distribution systems and wastewater pipeline systems, including sewerage pipeline systems; (v) seaports; and (vi) public utility vehicles.

     

    Expressly excluded from the definition of "public utilities" are (i) petroleum pipeline systems which are incidental to the operations of a distinct business, and (ii) transport vehicles accredited with and operating through transport network corporations.  

     

    The change introduced by the Amended PSA implies that public services falling outside the above definition (e.g. telecommunications, shipping, air carriers, railways, and subways) are no longer required to comply with the Filipino equity requirement (i.e. 60% ownership) for public utilities under Article XII of the 1987 Philippine Constitution. This is intended to attract much needed foreign direct investment and shore up competition in some industries which have long been virtually reserved to Filipinos.

     

    Despite these changes, the Amended PSA still prohibits foreign nationals from owning more than 50% of the capital of entities engaged in the operation and management of "critical infrastructure", unless the country of such foreign national affords reciprocity to Filipino nationals.

     

    "Critical infrastructure" refers to any public service which owns, uses, or operates systems and assets, whether physical or virtual, so vital to the country that the incapacity or destruction of such systems or assets would have a detrimental impact on national security. This includes telecommunications and other such vital services as may be declared by the President.


    In addition, entities controlled by or acting on behalf of foreign governments or foreign state-owned enterprises are prohibited from (i) investing in any public utility or critical infrastructure unless such investments were already made before the passage of the Amended PSA, and (ii) investing additional capital. However, sovereign wealth funds and independent pension funds of states are allowed to collectively own up to a maximum of 30% of the capital of such public services.

     

    Lastly, the Amended PSA authorises the President to suspend or prohibit any proposed merger, acquisition, or investment in public services which grants the foreigner or foreign corporation a controlling stake, when such transaction will affect national security.


    The Amended PSA shall take effect after 15 days following its publication on 7 April 2022 in the Official Gazette. That 15-day period ends on 22 April 2022. The National Economic Development Authority, in collaboration with other government agencies, shall promulgate rules and regulations to implement the Amended PSA within six months from 7 April 2022, namely by 7 October 2022.

    Amendments to Foreign Investments Act to Loosen Restrictions on Foreign Entrants and Boost Recovery after COVID-19

    On 2 March 2022, President Rodrigo R. Duterte signed into law Republic Act No. 11647 ("Amended FIA"), amending Republic Act No. 7042 or the Foreign Investments Act of 1991.


    The Amended FIA aims to attract and promote productive investments in activities which significantly contribute to sustainable, inclusive, resilient, and innovative economic growth, productivity, global competitiveness, employment creation, technological advancement, and countrywide development to the extent that foreign investment in such activities is allowed by the Constitution and relevant laws. It is the policy of the law to: (i) encourage foreign investments in enterprises that significantly expand livelihood and employment opportunities for Filipinos, (ii) enhance the economic value of agricultural products; and (iii) promote the welfare of Filipino consumers.


    In addition to existing requirements under the law, the Amended FIA now requires export enterprises to register and comply with the export requirements under the Tax Code in order to avail themselves of any tax incentive or benefit.


    Prior to the Amended FIA, as a rule, non-Philippine nationals (i.e. corporations with more than 40% foreign equity) which are domestic market enterprises (i.e. cater primarily to the domestic market) must have a minimum paid-in capital equivalent to US$200,000 or US$100,000 under certain circumstances. The Amended FIA added situations where non-Philippine nationals which are domestic market enterprises may have a minimum paid-in capital of US$100,000 (underscored below):


    1. the domestic market enterprise involves advanced technology as determined by the Department of Science and Technology, or
    2. the domestic market enterprise is endorsed as startup or startup enablers by the lead host agencies pursuant to Republic Act No. 11337, otherwise known as the Innovative Startup Act; or
    3. the domestic market enterprise has a majority of its direct employees Filipinos, but in no case shall the number of Filipino employees be less than 15; provided, that registered foreign enterprises employing foreign nationals and enjoying fiscal incentives shall implement an understudy or skills development program to ensure the transfer of technology or skills to Filipinos. Compliance with this requirement shall be regularly monitored by the Department of Labor and Employment (DOLE).

    Furthermore, the Amended FIA established the Inter-Agency Investment Promotion Coordination Committee ("Committee") which will integrate all promotion and facilitation efforts to encourage foreign investments in the country. The Committee shall develop a comprehensive and strategic Foreign Investment Promotion and Marketing Plan based on competitive advantages, natural resources, skill and educational development, traditional linkages, and international market potential that is fully consistent with the strategic investment priorities plan provided in the Tax Code.


    Finally, public officials and employees involved in foreign investment promotions who shall commit any of the punishable acts under the Anti-Graft and Corrupt Practices Act ("AGCP Act") shall, in addition to the penalties under the AGCP Act, pay a fine of not less than PhP2 million (equivalent to US$37,000) but not more than PhP 5 million (equivalent to US$93,000).


    The Amended FIA took effect on 19 March 2022, namely 15 days after its publication in the Official Gazette. However, the Amended FIA requires the National Economic Development Authority (the country’s primary socio-economic planning body), in consultation with the Department of Trade and Industry and Department of Finance, to issue implementing rules and regulations (and thus amend existing rules and regulations) necessary for the efficient implementation of the Amended FIA.

    Supreme Court Issues Rules on Expedited Procedures in the First-Level Courts

    Following the enactment of Republic Act No. 11576, which expanded the jurisdictional amount cognisable by the First Level Courts in civil cases to PhP2 million, the Supreme Court promulgated the Rules on Expedited Procedures in the First Level Courts ("Rules") on 1 March 2022. The First Level Courts include the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts. The Rules are intended to harmonise the Revised Rules on Summary Procedure and the Revised Rules on Small Claims Cases.


    Cases which fall under Summary Procedure


    The Rules contain an enumeration of the cases which now fall under Summary Procedure:


    1. Forcible entry and unlawful detainer where the attorney’s fees awarded, if any, shall not exceed PhP100,000;
    2. All civil actions except probate proceedings, admiralty and maritime actions, and small claims cases where the plaintiff’s claim does not exceed PhP2 million, exclusive of interest, damages, attorney’s fees, litigation expenses and costs;
    3. Complaints for damages where the claim does not exceed PhP2 million, exclusive of interests and costs;
    4. Cases for enforcement of barangay amicable settlement agreements and arbitration awards where the money claim exceeds PhP1 million;
    5. Cases solely for revival of judgment, by motion or by action, of a First Level Court; and
    6. The civil aspect of a violation of Batas Pambansa 22 or the Bouncing Checks Law ("BP No. 22"), if no criminal action has been instituted for the violation.

    An appeal from any judgment, final order, or final resolution of a case which falls under the Summary Procedure may be taken to the Regional Trial Court ("RTC") exercising jurisdiction over the territory. The RTC's judgment on the appeal shall be final, executory, and unappealable.  


    The following criminal cases shall also be governed by the Rule on Summary Procedure:


    1. violations of traffic laws, rules and regulations;
    2. violations of the rental law;
    3. violations of municipal or city ordinances;
    4. violations of BP No. 22; and
    5. all other criminal cases where the penalty prescribed by law for the offence charged is imprisonment not exceeding one year, or a fine not exceeding PhP50,000.00, or both.

    For offences involving damage to property through criminal negligence, the Rules will also apply where the imposable fine does not exceed PhP150,000. The Revised Guidelines for Continuous Trial of Criminal Cases has also been adopted with respect to arraignment and pre-trial.


    Small Claims cases


    Meanwhile, Small Claims cases now involve:


    1. an action that is purely civil in nature for the payment or reimbursement of a sum of money arising from a contract of lease, loan and other credit accommodations, contract of services, or contract of sale of personal property excluding the recovery of personal property, unless it is made the subject of a compromise agreement between the parties, where the claim does not exceed PhP1 million; or
    2. the enforcement of barangay amicable settlement agreements and arbitration awards where the money claim does not exceed PhP1 million.

    Streamlining court processes


    The Rules provide for several amendments with the intention of accelerating court processes. Similar to the 2019 Amendments to the 1997 Rules of Civil Procedure, the Plaintiff in Small Claims cases may also be authorised to serve the summons upon the Defendant. Where a defendant resides or holds business outside the judicial region, the hearing shall be set not more than 60 calendar days from the filing of the Statement of Claim. The Rules also allow for service of court issuances and filings by either the plaintiff or the defendant in Small Claims cases to made through email, facsimile, and other electronic means. Notices may likewise be served through mobile phone calls, short messaging service (SMS), or instant messaging ("IM") software applications.


    To ensure early resolution of Small Claims cases, the Rules also mandate the allotment of at least one hearing day every week which shall be devoted to Small Claims, with at least five cases scheduled per hearing day. Additionally, hearings through videoconferencing have been permitted using a Court-prescribed videoconferencing platform, alternative videoconferencing platforms or even through IM applications with video call features. Lawyers, who are not themselves parties to the Small Claims case, are still prohibited from representing the parties.


    The Rules are set to take effect on 11 April 2022, following its publication in newspapers of general circulation. However, the Rules have not been made applicable to those cases which are pending with the first level and second level courts.

    Amendments to the Retail Trade Act to Further Encourage Foreign Retail Enterprises to Do Business in the Philippines

    On 10 December 2021, President Rodrigo R. Duterte signed into law Republic Act No. 11595 ("Amended RTLA"), amending Republic Act No. 8762 or the Retail Trade Liberalization Act of 2000. The Amended RTLA substantially lowers the paid-up capital requirements for foreign retail enterprises to do business in the Philippines.  

     

    The Amended RTLA removes the categories for pre-qualification under the old law and lowers from US$ 2.5 million to, and sets a single minimum paid-up capital of, at least PhP25 million (approximately US$463,000) for all foreign-owned retail enterprises. The Amended RTLA standardises the minimum paid-up capital to at least PhP10 million (approximately US$185,000) for foreign retailers engaged in retail trade through more than one physical store.

     

    The required minimum paid-up capital is subject to the review and recommendation of the Department of Trade and Industry ("DTI"), the Securities and Exchange Commission ("SEC"), and the National Economic and Development Authority, which are to be submitted to the Congress every three years. The monitoring and regulation of foreign retailers is also now primarily within the purview of SEC, except for sole proprietors which remain under the regulation of DTI.

     

    Under the Amended RTLA, retail enterprises with foreign ownership of more than 80% are no longer required to offer a minimum of 30% of their equity to the public through any stock exchange in the Philippines within eight years from the start of operations.

     

    The Amended RTLA has likewise removed the requirement of obtaining a Certificate of Prequalification from the Board of Investments. It has eliminated the former thresholds for locally-manufactured products and now simply requires a stock inventory of locally- manufactured products which may be maintained through the designation of a store space as a Filipino section, use of locally-made packaging materials, utilisation of locally-sourced raw materials in the production of the goods, or other arrangements that will promote locally- manufactured products.

     

    Despite the lowering and removal of several requirements in the old law, the Implementing Rules and Regulations of the Amended RTLA nonetheless identify specific additional documents to be submitted to SEC (e.g. a Certificate of Inward Remittance of Foreign Exchange and a Certificate of Reciprocity). The Amended RTLA is also wider in scope since the minimum paid-up capital and other registration requirements are made expressly applicable to foreign retailers engaging in retail trade through purely online channels.

     

    These notwithstanding, the Amended RTLA incorporates the policy of giving preference to Philippine nationals, particularly in terms of labour. It requires foreign retailers to first determine that there are no competent, able and willing Filipino citizens available to join the workforce, before they can engage the services of foreign nationals.

    Ease of Paying Taxes Act to Streamline Tax Compliance

    On 15 September 2021, the House of Representatives approved on third reading House Bill No. 8942 or the Ease of Paying Taxes Act ("HB 8942"). HB 8942 proposes amendments to the Tax Code that seek to modernise tax administration and improve its efficiency and effectiveness by providing mechanisms that encourage proper and easy compliance with the least cost and resources possible.


    One proposed amendment is the classification of taxpayers based on their capacity to comply with tax rules and regulations, the amount and type of tax paid, and similar economic and financial factors. HB 8942 particularly mandates the creation of classifications for large and medium taxpayers and other additional classifications that may be necessary to achieve better service and tax administration. Acknowledging that different taxpayers have varying abilities to comply with their tax obligations, HB 8942 institutionalises a simplified process of filing tax returns for small taxpayers to facilitate ease of compliance to tax rules and regulations.


    HB 8942 also abolishes the "pay as you file" system. Under this system, payment of tax is simultaneous with filing the return. However, under the proposed amendment by HB 8942, taxpayers will be given the option to pay the tax even before it is due.


    To improve the portability of tax transactions, HB 8942 also removes venue restrictions in the filing of returns and the payment of taxes.


    HB 8942 seeks to further simplify tax compliance through the removal of the distinction between sales invoices and official receipts for value-added tax ("VAT") transactions by prescribing the sales invoice as the uniform VAT documentation for both sale of goods and sale of services.


    Other proposed amendments include:


    1. the establishment of registration facilities for non-resident taxpayers;
    2. abolishment of the annual registration fee;
    3. cancellation of the tax registration upon the mere filing of the registration update form, without prejudice to the Revenue District Officer's power to conduct an audit to determine any tax liability;
    4. the provision of the taxpayer’s bill of rights; and
    5. the creation of the Office of the Tax Advocate, which is an office independent from the Bureau of Internal Revenue mandated to ensure that the rights of the taxpayers are protected.

    HB 8942 is currently pending before the Senate Committee on Ways and Means.

    SINGAPORE

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

    On 14 March 2022, the Monetary Authority of Singapore ("MAS") issued two Notices to all financial institutions ("FIs") in Singapore detailing the financial measures imposed by the Singapore Government against designated Russian banks, entities and activities in Russia and fund-raising activities benefiting the Russian government and related parties.


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


    MAS 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 (unless relevant exemption(s) apply). Such prohibited activities and transactions include, among other things:


    1. Dealing with designated Russian Banks and Designated Entities in the manners set out in Paragraph 3 of MAS Notice SNR-N01 (including establishing business relations with or undertaking any financial transaction for, or providing any financial assistance or service to, or transfering any financial assets or resources to, the designated Russian Banks and Designated Entities).

    2. The designated Russian Banks are:

      • VTB Bank Public Joint Stock Company;
      • The Corporation Bank for Development and Foreign Economic Affairs Vnesheconombank;
      • Promsvyazbank Public Joint Stock Company;
      • Bank Rossiya;

      and all entities owned or controlled by, directly or indirectly, or acting on behalf of or under the direction of, these Russian banks.

      A "Designated Entity" refers to an entity involved in activities relating to the export from, transhipment in or transit through, Singapore or any other jurisdiction to Russia of strategic military and high technology goods that are prescribed in the Strategic Goods (Control) Order 2021, and all entities owned or controlled, directly or indirectly, or acting on behalf of or under the direction of the Designated Entity.

    3. Entering into financial transactions or arrangements, or providing financial services, that facilitate fund raising by the Russian government and the Central Bank of the Russian Federation, as well as any entity owned or controlled by them or acting on their direction or behalf.

    4. Entering into or facilitating any DPT transaction where the proceeds or benefits from such transaction may be used to facilitate any of the transactions or activities that is stated to be prohibited in Paragraphs 3 to 6 of MAS Notice SNR-N01.


    For the full list and details of the activities and transactions that FIs are prohibited from engaging in, please refer to MAS Notice SNR-N01. 


    MAS 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. For instance, among other things, in respect of Paragraph 3 of MAS Notice SNR-N01, an FI may process or facilitate payments for basic expenses and reasonable fees for the designated Russian Banks and Designated Entities in respect of certain services specified in Paragraph 3 of MAS Notice SNR-N02. The FI must keep accurate, complete and readable records of these permitted transactions.  


    For more information, click here to read our Legal Update.

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

    The cryptocurrency market has grown exponentially, with a global market value of about $2 trillion, and yet its regulation and legal status continue to be subject to much debate and uncertainty. Are cryptocurrency assets considered to be property in the eyes of the law? Where does one even begin to seek legal remedy for stolen cryptocurrency in the borderless nature and anonymity of the internet? Whilst all cryptocurrency transactions are public and transparent, it is extremely difficult to identify the user of a particular wallet. There are often also difficulties ascertaining the exact entity operating a cryptocurrency exchange, and which countries have jurisdiction over them.


    These were some of the novel issues before the Singapore High Court in CLM v CLN and ors [2022] SGHC 46. In this exceptional case, the Singapore Court granted the first reported freezing injunction against "persons unknown" in Singapore for S$9.6 million worth of cryptocurrency assets stolen from the Plaintiff.


    In reaching its decision, the Singapore High Court analysed jurisprudence across multiple jurisdictions and held that cryptocurrency could be classified as property that could be protected using proprietary injunctions. The Singapore High Court also considered that it had sufficient jurisdiction to grant ancillary disclosure orders against certain cryptocurrency exchanges in aid of the Plaintiff's efforts to trace and recover the stolen cryptocurrency.

     

    The Plaintiff was successfully represented by Danny Ong and Jansen Chow from the Fraud, Asset Recovery and Investigations team.


    For more information, click here to read our Legal Update.

    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:


    1. 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;
    2. S$560 million Household Support Package that helps Singaporean families to manage cost of living pressures by providing support for daily essentials;
    3. S$600 million set aside to strengthen local enterprises under the Productivity Solutions Grant; and
    4. 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:


    1. Maintaining the competitiveness and resilience of the tax system;
    2. Building a fairer and more resilient tax system;
    3. Enhancing service delivery; and
    4. Increasing the carbon tax.

    With regard to the carbon tax increase, Singapore has set the goal of achieving net zero carbon emissions by or around 2050. Accordingly, the carbon tax that was introduced in 2019 will be increased from S$5 per tonne of emissions to:


    1. S$25 per tonne in 2024 and 2025;
    2. S$45 per tonne in 2026 and 2027; with a view to reaching
    3. S$50 to S$80 per tonne by 2030.

    Any subsequent increases will be announced ahead of time to provide certainty for businesses.


    To support businesses as they adjust to carbon tax increases and to manage the near-term impact on their competitiveness, the Singapore Government will put in place a transition framework in 2024. Under this framework, firms will be provided with allowances for a share of their emissions. The allowances will be determined based on efficiency standards and decarbonisation targets. This will help to mitigate the impact on business costs while still encouraging decarbonisation.


    From 2024, businesses will be allowed to use high-quality, international carbon credits to offset up to 5% of their taxable emissions in lieu of paying carbon tax.


    For more information on the carbon tax increase and other tax measures, changes, enhancements, extensions, and refinements announced in Budget 2022, click here to read our Legal Update.

    Towards an Efficient and Business-Friendly IP System – Intellectual Property (Amendment) Act 2021 Passed in Parliament

    The Intellectual Property (Amendment) Bill 2021 ("Bill") was passed in Parliament on 12 January 2022. The Bill makes changes to a number of Intellectual Property ("IP") statutes, seeking to create a more efficient and business-friendly IP registration system in Singapore. The Bill makes changes to the Patents Act, the Trade Marks Act, the Registered Designs Act, the Plant Varieties Protection Act and the Geographical Indications Act 2014.


    The Bill follows an earlier public consultation by the Intellectual Property Office of Singapore ("IPOS") held from July to August 2021. The changes in the Bill are in line with the Singapore IP Strategy 2030, which seeks to strengthen Singapore's position as a global hub for intangible assets ("IA") and IP, and to attract and grow innovative enterprises using IA and IP.


    The changes are directed at effecting improvements across three broad categories:


    1. Enhanced business-friendliness. To improve business-friendliness of the IPOS system, the Bill introduces changes which seek to improve the experience of applicants seeking to register their IP.
    2. Operational efficiency. The Bill seeks to improve operational efficiency and includes key amendments to IPOS' internal processes.
    3. Enhanced legislative and procedural clarity. The Bill introduces certain changes that seek to clarify the law and smoothen IPOS' administration of the IP prosecution process.

    For more information, click here to read our Legal Update. 

    Regional Comprehensive Economic Partnership Agreement Enters into Force

    The Regional Comprehensive Economic Partnership ("RCEP") Agreement has entered into force on 1 January 2022, following the ratification of the Agreement by 10 Parties – Australia, Brunei, Cambodia, China, Japan, Laos, New Zealand, Singapore, Thailand, and Vietnam.


    The RCEP Agreement is a comprehensive and mutually beneficial economic partnership that builds on existing bilateral agreements between the Association of Southeast Asian Nations (ASEAN) and its Free Trade Agreement ("FTA") partners. The RCEP Agreement is the largest FTA to date, covering about 30% of global Gross Domestic Product (US$26 trillion) and 30% of the world's population.


    The key benefits under the RCEP Agreement span the following areas:


    1. Trade in goods;
    2. Non-tariff measures provisions;
    3. Rules of origin;
    4. Customs procedures and trade facilitation;
    5. Trade in services;
    6. Investment;
    7. Electronic commerce;
    8. Intellectual property;
    9. Competition; and
    10. Government procurement.

    For more information, click here to read our Legal Update.

    THAILAND

    1 June 2022 Implementation Deadline under the Personal Data Protection Act Fast Approaching

    The 1 June 2022 effective date of key operative provisions of the Personal Data Protection Act B.E. 2562 (2019) ("PDPA") is fast approaching, with no indication as yet that it will be postponed further (New Effective Date) following two postponements in 2020 and 2021. For more information, click here to refer to our May 2021 Legal Update on the further postponement of the implementation deadline of the PDPA from 1 June 2021 to 1 June 2022. 


    Recent media reports have indicated that industry groups are seeking a further postponement, with the Joint Standing Committee on Commerce, Industry and Banking (JSCCIB) comprising of the Federation of Thai Industries, the Thai Bankers' Association and the Board of Trade of Thailand, proposing the view that it should be postponed for a further two-year period.


    Full implementation of the PDPA requires the issuance of subordinate laws by the Personal Data Protection Commission ("PDPC").  After a long delay, the members of the PDPC were formally appointed on 11 January 2022 (as announced in the Government Gazette on 18 January 2022 with retroactive effect).  The PDPC consists of the following:


    1. Chairman (Mr. Thienchai Na Nakorn);
    2. Vice-Chairman (the Permanent Secretary of the Ministry of Digital Economy and Society);
    3. Five ex-officio committee members (comprising the Permanent Secretary of the Prime Minister Office, the Secretary-General of the Council of State, the Secretary-General of the Consumer Protection Board, the Director-General of the Rights and Liberties Protection Department, and the Attorney General);
    4. Nine honorary committee members (in the fields of personal data protection, consumer protection, IT and communication, social science, law, health, finance and any other field that must be relevant to, and useful for the protection of personal data); and
    5. The Secretary-General of the PDPC.

    Efforts are now reportedly underway to recruit members of the Office of Personal Data Protection Commission, which will be a government agency with the status of a juristic person. Its role will be to promote and support the development of personal data protection. 

    Digital Platforms – New Law may be Enacted in 2022

    The Electronic Transactions Development Agency ("ETDA") has proposed a draft Royal Decree on Supervision of Digital Platform Services which are Subject to Prior Notification under the Electronic Transactions Act B.E. 2544 (2001) ("draft Royal Decree"). 


    Under this draft Royal Decree, a digital platform operator is required to notify the ETDA before operating its business and meet certain reporting obligations. The draft Royal Decree also sets out obligations for certain digital platform operators operating outside of Thailand, such as the obligation to appoint a Point of Contact. 


    The draft Royal Decree went through a further public hearing process from 10 to 25 March 2022, with comments to be submitted to the Council of State for further review of the draft. 

    Amended Copyright Act to Take Effect on 22 August 2022

    On 24 February 2022, the Copyright Act (No. 5) B.E. 2565 was published in the Government Gazette and will take effect on 22 August 2022.  The amended law adds provisions related to exclusion of liabilities of service providers in respect of copyright infringement.

    New Guidelines on Unfair Trade Practices

    The unfair trade practices language in Section 57 of Thailand's Trade Competition Act B.E. 2560 (2017) ("Act") serves as a catch-all provision prohibiting practices which are unfair and cause damage to other business operators, regardless of whether the business operator is market dominant or not. With effect from 19 February 2022, the Trade Competition Commission has issued a new notification prescribing guidelines on the consideration of unfair trade practices in respect of acts causing damage to other business operators ("Guidelines"), repealing and replacing a 2018 notification.


    Business operators should be mindful of risk areas under Section 57 of the Act as they may be unaware of the Act’s application to non-dominant operators. The Guidelines provide some guidance in this regard, as well as guidance on steps which can be taken to review the defensibility of business practices such as trade programs. For more information, click here to read our Legal Update which highlights some of the key elements of the Guidelines.

    New Division of the Civil Court Established for Online Trade Cases

    In response to the increasing number of e-commerce-related complaints filed by consumers, a new division of the Civil Court called the Online Trade Division was established on 27 January 2022. Pursuant to the Announcement of the Court of Justice Management Committee published in the Thai Government Gazette on 20 December 2021, the Online Trade Division is intended to hear disputes involving "online trade cases".  The key requirement is that, in order to constitute an online trade, the trade or service agreement must be made via an online platform. 


    Without appointing an attorney, consumers are able to file their own complaints using either an online court filing system or the standard procedure for complaint-filing in the Civil Court. There is no need to have full details of the defendant, with only the profile of the defendant on the platform (e.g. account/username) being sufficient. All proceedings will be conducted online, with paperless pleading, online hearings and e-signatures on pleadings available. The court's judgement may also be made in electronic form.


    With this amendment, it is expected that the number of court cases relating to online trading will substantially increase.

    VIETNAM

    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).


    For more information including the implications of this development, click here to read our Legal Update.

    New Law Amending the Law on Investment, Law on Enterprises, and Seven Other Laws Takes Effect on 1 March 2022

    On 11 January 2022, the National Assembly of Vietnam issued Law No. 03/2022/QH15 ("Law 03/2022") amending and supplementing these laws: (i) Law on Public Investment; (ii) Law on Public – Private Partnership; (iii) Law on Investment; (iv) Law on Housing; (v) Law on Bidding; (vi) Law on Electricity; (vii) Law on Enterprises; (viii) Law on Excise Tax; and (ix) Law on Enforcement of Civil Judgements. Law 03/2022 took effect on 1 March 2022.

     

    Among other things, the Law on Investment is amended to give more power to the local competent authorities to grant in-principle investment grants, thus making the licensing procedures less complicated and burdensome to investors. To further promote investment and development of electric vehicles, and reduce carbon emissions from fuel vehicles, Law 03/2022 also amended and supplemented the Excise Tariff as regulated in Article 7 of the Law on Excise Tax, by reducing the excise taxes for electric vehicles within five years from the date Law 03/2022 took effect (i.e. from 1 March 2022 to 28 February 2027).

     

    For more information, click here to read our Legal Update. 

    Decree Revising Legal Provisions and Regulations on Real Estate Trading Activities Takes Effect on 1 March 2022

    On 6 January 2022, the Government issued Decree No. 02/2022/ND-CP ("Decree 02/2022") amending certain articles of the Law on Real Estate Business No. 66/2014/QH13 dated 25 November 2014 ("Law on Real Estate Business"). Decree 02/2022, which replaces Decree 76/2015/ND-CP ("Decree 76/2015"), took effect from 1 March 2022.


    Decree 02/2022 sets out new eligibility conditions to conduct real estate business including establishing an enterprise or co-operative with a business line related to real estate, publicly disclosing and updating changes to certain specified information about the enterprise and its real estate business (e.g. real estate or real estate projects to be put out on the market and are being traded, etc.), and the requirement to only trade in eligible real estate. There is no requirement on the minimum legal capital for organisations and individuals intending to participate in real estate business.


    Six types of individuals, households and enterprises who sell, lease or lease-purchase real estate in small scale and/or infrequently are exempted under Decree 02/2022 from complying with the conditions for participating in the real estate business.  


    For more information, click here to read our Legal Update.





    Please note that whilst the information in this Update is correct to the best of our knowledge and belief at the time of writing, it is only intended to provide a general guide to the subject matter and should not be treated as a substitute for specific professional advice.
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