Vol 10 Issue 1 • June 2008
Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The First Half Of 2008 A Round-Up Of Latest Developments
Rajah & Tann LLP Hosts 9th Lunchtime Seminar In The First Half Of 2008 Series
Tax, Private Wealth & Rajah & Tann LLP has continued to experience a period of growth and success in the first half of 2008. Trusts Practice The Firm has benefited from significant developments in its growth and continues to be involved in some of the leading deals and litigation. The paragraphs below showcase the key highlights. Court Of Appeal Delivers Judgment On The LTA- Komoco Motors Dispute Senior Counsel Appointments
Insider Trading And The In January this year, two of our finest lawyers, Sundaresh Menon from the International Arbitration Vexed Question Practice Group and Lee Eng Beng from the Business Finance & Insolvency Practice Group were Of General Availability appointed as Senior Counsel. This brings the total number of Senior Counsel in Rajah and Tann LLP to Courts And Arbitration - six. The other four Senior Counsel are Steven Chong, Quentin Loh, Andre Yeap and Toh Kian Sing. A Question Of Balance? Recent Developments In Significant Partner Hires Singapore Law Rajah & Tann LLP is pleased to welcome a number of lateral hires. Disclosure Of Confidential Information Mr Harish Kumar joined the Commercial Litigation Practice Group of Rajah & Tann LLP as a By Professional partner with effect from 1 March 2008. Mr Kumar graduated from NUS in 1984 and has In The Pursuit Of Its Legitimate Interests been an active litigator over the last 20 years, having been previously connected with two leading litigation firms in Singapore. He has litigated cases over a large spectrum of areas Public Private Partnership Projects including banking and finance, employment, landlord and tenancy, intellectual property, insolvency, – The Process company and partnership disputes, corporate fraud, equity and trust, professional negligence and reliance. Open Source In IT Contracts
/77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The He will add to the wealth of experience of the existing team and will further enhance our litigation First Half Of 2008 capabilities. Rajah & Tann LLP Hosts 9th Lunchtime Seminar Additionally, Ms Amanda Davidson joined in February to head the Firm’s new Major Projects Group. Series Amanda is an Australian qualified lawyer who has over 20 years of extensive experience in advising on a wide range of infrastructure projects in the Australian and Asian markets. See related write-up Tax, Private Wealth & Trusts Practice on Rajah & Tann LLP’s new Major Projects Group on page 7.
Court Of Appeal Delivers Mr Yeoh Lian Chuan and Ms Stacy Choong, both leading tax experts and private wealth Judgment On The LTA- practitioners, joined us in June and May, respectively, to boost the Firm’s tax practice. Associate Komoco Motors Dispute Professor Stephen Phua, a leading tax academic from the National University of Singapore came Insider Trading And The on board in June as a tax consultant. Lian, Stacy and Stephen have combined efforts with our Soon Vexed Question Choo Hock, Christina Ng and Ronald Choo to form the Firm’s new Tax, Private Wealth & Trusts Of General Availability Practice. See related story on the new Firm’s Tax, Private Wealth & Trusts Practice on page 24. Courts And Arbitration - A Question Of Balance? Global Arbitration Review 100 Recent Developments In Singapore Law In January this year, the London-based Global Arbitration Review (‘GAR’) publication released an approved list of the top 100 arbitration practices in the world based on an audited research period Disclosure Of Confidential Information of two years from September 2005 to September 2007. Rajah & Tann LLP takes pride in having By Professional been chosen by the researchers as the only law firm from among the other top-tier law firms in In The Pursuit Of Its Singapore as one of the top 100 arbitration practices in the world. In addition to the 22 merit Legitimate Interests hearings in arbitration cases recorded during the research period, Rajah & Tann LLP also reported Public Private 44 pending International Arbitration cases which is recorded in the GAR 100 as the 8th highest in Partnership Projects the world. – The Process
Open Source In IT Contracts
/77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The This was the first edition of the GAR 100. It is an approved list which showcases the profiles of the First Half Of 2008 top 100 firms that have been audited for international arbitration capabilities and specialisation. The Rajah & Tann LLP Hosts GAR 100 is intended to assist clients in finding the specialist counsel they seek, and specialist counsel 9th Lunchtime Seminar in demonstrating their expertise. The GAR will be revising and releasing the GAR 100 every year. Series
Tax, Private Wealth & Other Significant Legal Accolades Trusts Practice Our lawyers have gained several accolades from various legal journals in recognition of their Court Of Appeal Delivers expertise and excellence in their respective areas of specialisation. Judgment On The LTA- Komoco Motors Dispute Steven Chong SC and Quentin Loh SC have been recognised as leading lawyers in dispute resolution
Insider Trading And The in PLC Cross-border Handbook 2007/8 – Dispute Resolution. Vexed Question Of General Availability Seven of our lawyers have been identified by the 2008 Asialaw Leading Lawyers as the region’s most highly-acclaimed legal experts in key practice areas. They are as follows: Courts And Arbitration - A Question Of Balance? • Steven Chong SC, Shipping, Maritime & Aviation, Dispute Resolution Recent Developments In Singapore Law • Andre Yeap SC - Dispute Resolution Disclosure Of Confidential Information • Kala Anandarajah - Corporate Governance, Competition & Anti-trust By Professional In The Pursuit Of Its • Andrew CL Ong - Competition & Anti-trust, IT, Telecommunications & Media Legitimate Interests • Sin Chei Liang - General Corporate Practice Public Private Partnership Projects • Abdul Jabbar - Labour & Employment – The Process
Open Source In IT • Adrian Wong - Dispute Resolution Contracts
/77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The Asialaw Leading Lawyers is one of the largest annual surveys of Asia’s legal profession. First Half Of 2008 Goh Kian Hwee has been included in the inaugural ‘Best Lawyers’ list for Singapore 2008 in the Rajah & Tann LLP Hosts 9th Lunchtime Seminar specialties of Corporate, Finance and Mergers and Acquisitions. He was also nominated as a leading Series lawyer in the Guide To The World’s Leading Mergers And Acquisitions Lawyers - 6th Ed 2008.
Tax, Private Wealth & Our lawyers featured prominently in the recent publication PLC Which Lawyer? Yearbook Singapore Trusts Practice 2008. We were singled out as the leading firm in the area of dispute resolution, and as a highly Court Of Appeal Delivers recommended firm in corporate real estate, corporate / M&A and intellectual property. Steven Chong Judgment On The LTA- SC, Patrick Ang and Christina Ng also came highly recommended for their respective works in dispute Komoco Motors Dispute resolution, restructuring and insolvency, and tax. We set out further details in the table below. Insider Trading And The Vexed Question Area Of Practice Recognition Of General Availability Banking & Finance Recommended Firm Courts And Arbitration - Competition / Anti-Trust Recognised lawyers – Kala Anandarajah, Andrew CL Ong A Question Of Balance? Recent Developments In Corporate Real Estate Highly recommended firm Singapore Law Recognised lawyer – Lee Lay See Disclosure Of Corporate / M&A Highly recommended firm Confidential Information By Professional Dispute Resolution Leading firm In The Pursuit Of Its Highly recommended lawyer – Steven Chong SC Legitimate Interests Recommended lawyer – Quentin Loh SC Public Private Partnership Projects Intellectual Property Highly recommended firm – The Process Recommended lawyer – Lau Kok Keng Open Source In IT Contracts
/77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The First Half Of 2008 Area Of Practice Recognition Investment Funds Recommended firm Rajah & Tann LLP Hosts 9th Lunchtime Seminar Life Science Recommended lawyer – Lim Wee Hann Series Private Equity / Venture Capital Recommended lawyers – Wong Kok Hoe, Evelyn Wee Tax, Private Wealth & Restructuring & Insolvency Highly recommended lawyer – Patrick Ang Trusts Practice Tax Highly recommended lawyer – Christina Ng Court Of Appeal Delivers Recommended - Yeoh Lian Chuan Judgment On The LTA- Recommended - Stacy Choong Komoco Motors Dispute Recognised lawyer – Soon Choo Hock Insider Trading And The Vexed Question Rajah & Tann LLP has also been ranked tier 3 in Asia Law & Practice – IP Profiles 2008, a guide to Of General Availability the world’s intellectual property advisers. Courts And Arbitration - A Question Of Balance? R&T LLP Launches Association With Malaysian Law Firm Recent Developments In Singapore Law Rajah & Tann LLP officially launched an association with Malaysian law firm, Kamilah & Chong (‘K&C’). This is in line with the Firm’s ambition to expand regionally and it is a mark of our progress Disclosure Of Confidential Information in the Malaysian market. The principal partners of K&C are Chong Yee Leong, Jainil Bhandari By Professional and Kamilah Kasim, who are also partners of Rajah & Tann LLP. Rajah & Tann LLP and K&C will In The Pursuit Of Its be working very closely to provide seamless service to Malaysian clients requiring international Legitimate Interests expertise and international clients venturing into Malaysia. Public Private Partnership Projects The focus of K&C is on the practice areas of International Arbitration, Shipping, Corporate, – The Process Telecommunications and Islamic Financing. K&C is conveniently located in KL Sentral and our office Open Source In IT building is just across the road from the KLIA Express departure hall. K&C’s address and contact Contracts numbers are as follows:
/77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The First Half Of 2008 Address : Suite 3B-16-7, Level 16, Block 3B Plaza Sentral, Jalan Stesen Sentral 5 Kuala Lumpur Sentral, 50470 Kuala Lumpur, Malaysia Rajah & Tann LLP Hosts 9th Lunchtime Seminar Main Line : 03 22788311 Series Fax Number : 03 22738322
Tax, Private Wealth & Trusts Practice Major Projects Group
Court Of Appeal Delivers Recently, in March 2008, a new Major Projects Group to spearhead the Firm’s objective of expanding Judgment On The LTA- its business in the international major projects arena was set up. The Group is headed by Amanda Komoco Motors Dispute Davidson, a highly-renowned projects lawyer with over 20 years experience in Australia and Insider Trading And The Asia in construction and major projects. She was a senior partner with one of Australia’s leading Vexed Question international law firms. Amanda was recognised in the Asia Pacific Legal 500 publication as one Of General Availability of the ten top leading practitioners in construction law, and is widely recognised there as a leader Courts And Arbitration - in her field. Amanda has extensive experience in advising on all aspects of major projects across a A Question Of Balance? range of industries including transport, water and wastewater, construction, roads, tunnel, power, Recent Developments In defence mining and telecommunications. Singapore Law
Disclosure Of The Major Projects Group comprises specialist lawyers from a range of legal practices within Confidential Information the Firm. The team includes lawyers with expertise in construction, infrastructure, engineering, By Professional intellectual property and competition, banking, finance, corporate, environmental law and taxation In The Pursuit Of Its Legitimate Interests in Singapore and regionally. The lawyers within this Group are recognised for their ability to advise on all aspects of major projects since the team has a profound understanding of the legal, technical Public Private and commercial intricacies involved in such projects. The Group has already obtained mandates for Partnership Projects – The Process some significant major projects and is successfully competing directly with international firms for this work. Open Source In IT Contracts
/77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The R&T Corporate Services Pte Ltd Among Pioneer Group Of Continuing First Half Of 2008 Sponsors For Catalist Rajah & Tann LLP Hosts 9th Lunchtime Seminar We are also proud to inform our clients and friends that R&T Corporate Services Pte Ltd, a subsidiary Series of Rajah & Tann LLP, is among the pioneer batch of approved continuing sponsors for Catalist, a new sponsor-supervised board recently launched by the SGX for local and international fast- Tax, Private Wealth & Trusts Practice growing companies. Helmed by experienced practitioners, R&T Corporate Services Pte Ltd provides a suite of corporate and continuing sponsor services to both domestic and international businesses Court Of Appeal Delivers in a comprehensive range of industries. Judgment On The LTA- Komoco Motors Dispute Recent Major Deals And Transactions Insider Trading And The Vexed Question Our lawyers from the non-dispute practices, including the Corporate and Capital Markets Practice, Of General Availability the iTec Practice, and the Competition & Trade Law Practice have been involved in various significant Courts And Arbitration - transactions for the first half of the year. A Question Of Balance? Recent Developments In Goh Kian Hwee, Cynthia Goh and Dorothy Tan are acting for Hong Leong Asia Ltd (‘HLA’) in the Singapore Law proposed sale of the group’s building materials business to Tasek Corporation Berhad (‘Tasek’), its associated company which is listed on Bursa Malaysia Securities Berhad, for an aggregate consideration Disclosure Of Confidential Information of S$323.5 million which is to be satisfied by the issue and allotment to HLA of approximately By Professional 212.2 million fully-paid new ordinary shares of RM1.00 each in the capital of Tasek. This represents In The Pursuit Of Its approximately 53.5% of the enlarged issued share capital of Tasek. Following the completion of the Legitimate Interests transaction, the HLA group will have a shareholding interest of approximately 68.3% of the enlarged Public Private issued share capital of Tasek and Tasek will become a subsidiary of the HLA group. Partnership Projects – The Process Together with Lawrence Tan and Soh Chai Lih, the team has also recently acted for Knowledge Two Open Source In IT Investment Pte Ltd (‘KTI’), a wholly-owned subsidiary of Lee Latex (Pte) Limited, in its competing Contracts
/77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The mandatory conditional cash offer to acquire all the issued ordinary shares in the capital of The First Half Of 2008 Straits Trading Company Limited. This offer was made in competition to an earlier offer by The Rajah & Tann LLP Hosts Cairns Pte Ltd. Based on the offer price, the competing offer by KTI valued The Straits Trading 9th Lunchtime Seminar Company Limited at approximately S$2.13 billion. Series Kian Hwee, Lawrence Tan, Yanni Long, Chai Lih, and Dorothy acted for Somerset Capital Pte Tax, Private Wealth & Trusts Practice Ltd (‘Somerset Capital’), a wholly-owned subsidiary of CapitaLand Limited, in connection with its voluntary unconditional cash offer to acquire all the shares in The Ascott Group Limited, other Court Of Appeal Delivers Judgment On The LTA- than those already held by the Somerset Capital and its related companies. The voluntary offer Komoco Motors Dispute was followed by the compulsory acquisition by Somerset Capital of the shares of the remaining shareholders who did not accept the offer, resulting in the successful privatisation of The Ascott Insider Trading And The Vexed Question Group Limited. Based on the offer price of S$1.73 for each share, the offer values The Ascott Of General Availability Group Limited at approximately S$2.78 billion.
Courts And Arbitration - Serene Yeo, Ng Sey Ming, Chai Lih and Dexter Chee were the solicitors to Yongmao Holdings A Question Of Balance? Limited (‘Yongmao’) in connection with its listing and quotation on the Mainboard of the SGX-ST. Recent Developments In Singapore Law The total invitation proceeds amount to approximately S$39 million. They also advised Yongmao on its pre-IPO restructuring involving the S$18.7 million acquisition by Yongmao of a 70% equity Disclosure Of Confidential Information interest in FSYM Construction, a PRC company which designs, manufactures and sells towercranes By Professional and towercrane components and accessories, and on a related convertible loan to Yongmao to In The Pursuit Of Its fund such acquisition. Legitimate Interests Wong Kok Hoe, Howard Cheam and Yeo Khung Chye acted as solicitors of Li Heng Chemical Fibre Public Private Partnership Projects Technologies Limited (‘Li Heng’), a company incorporated in Bermuda, in its listing on Official List of the – The Process SGX-ST. Li Heng is principally engaged in the manufacture and sale of high-end nylon yarn products
Open Source In IT in the PRC. The net proceeds of the invitation amounted to approximately S$305.3 million. Contracts
/77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The Kok Hoe, Sharon Tan and Janet Low were the solicitors to CentraLand Limited (‘CentraLand’) in First Half Of 2008 connection with its listing and quotation on the Mainboard of the SGX-ST. The IPO was launched Rajah & Tann LLP Hosts on 22 January 2008. CentraLand, a premium brand property developer based in Zhengzhou city in 9th Lunchtime Seminar the People’s Republic of China, raised about S$122.5 million. Series Sin Chei Liang acted as counsel to Holcim Singapore Pte Ltd in a joint venture between Holcim Tax, Private Wealth & Trusts Practice Singapore Pte Ltd, a subsidiary of the Holcim group, and ecoWise Holdings Limited, a company listed on Catalist, for the operation of a used copper slag recycling and processing plant and a Court Of Appeal Delivers Judgment On The LTA- joint research and development facility to develop alternative sources of fuels and raw materials. Komoco Motors Dispute Holcim and ecoWise will co-own a company, ecoWise Materials Pte Ltd, which will maintain and operate an industrial materials recycling and processing plant, for the purpose of recycling Insider Trading And The Vexed Question and processing used copper slag in Singapore. As part of the joint venture arrangements, Of General Availability ecoWise Materials Pte Ltd will also establish a research and development facility to develop alternative sources of fuels and raw materials. Under the joint venture, Holcim and ecoWise Courts And Arbitration - A Question Of Balance? Holdings Limited’s subsidiary will also have exclusive rights to off-take the recycled copper slag Recent Developments In from ecoWise Materials Pte Ltd. Singapore Law Cheong Chuh Feng, Howard Cheam and Tan Mui Hui acted as Legal Advisers to China Zaino Disclosure Of Confidential Information International Ltd (‘Zaino’) as to Singapore Law in connection with the listing of Zaino, a PRC By Professional company incorporated in Bermuda in the business of designing, developing, manufacturing and In The Pursuit Of Its selling backpacks and luggage. The net proceeds of the offering amounted to approximately S$80.5 Legitimate Interests million. The IPO was made by way of an Offering in respect of 145,000,000 ordinary shares of Public Private Zaino at S$0.001 each by way of public offer and placement of 2,000,000 Offer Shares at S$0.60 Partnership Projects and 143,000,000 Placement Shares at S$0.60, respectively. Other professionals involved in the – The Process transaction were Stirling Coleman Capital Limited and DBS Bank Ltd (Joint Issue Managers), Stirling Open Source In IT Contracts
10 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The Coleman Capital Limited (Bookrunner, Placement Agent and Underwriter), Shook Lin & Bok LLP First Half Of 2008 (Solicitors to the Joint Issue Managers), GFE Law Office (Legal Advisors on PRC law), Conyers Dill Rajah & Tann LLP Hosts and Pearman (Legal Advisors to the Company on Bermuda law), and Foo Kon Tan Grant Thornton 9th Lunchtime Seminar (Auditors and Reporting Accountants). Series Christina Ng and Jocelyn Ng acted for Vita Holdings Limited in the mandatory conditional cash Tax, Private Wealth & Trusts Practice offers by Chong Thim Pheng for the issued shares in the capital of and all warrants issued by Vita Holdings Limited. Court Of Appeal Delivers Judgment On The LTA- Kala Anandarajah, Dominique Lombardi and Corinne Chew from the Competition and Trade Law Komoco Motors Dispute Practice Group acted for Chartered Semiconductor Manufacturing Ltd (‘Chartered’) and Hitachi Insider Trading And The Semiconductor Singapore Pte Ltd (‘Hitachi’) in seeking clearance from the Competition Commission Vexed Question of Singapore (‘CCS’) of Chartered’s acquisition of 100% of the shares held by Hitachi Ltd and Of General Availability Hitachi Asia Ltd in Hitachi. Both Chartered and Hitachi are in the business of providing foundry Courts And Arbitration - services to semiconductor manufacturers. Chartered being the biggest wafer manufacturer and A Question Of Balance? provider of wafer foundry services in Singapore, its merger with Hitachi triggered the thresholds Recent Developments In Singapore Law indicating a possible substantial lessening of competition (‘SLC’) depending on the market definition adopted. Given that a merger that may result in SLC in any market in Singapore is prohibited, Disclosure Of Confidential Information parties sought clearance from the CCS that even though SLC-indicating thresholds were possibly By Professional crossed, the merger would not result in any lessening of competition in the relevant markets and In The Pursuit Of Its could, therefore, be proceeded with. The CCS cleared the deal within thirty days from the day of Legitimate Interests our application for clearance. Public Private Partnership Projects Lim Wee Hann and Tan Chon Beng of the Corporate and Capital Markets Practice Group worked – The Process on the merger of the two companies.
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11 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The Kala and Dominique also successfully acted for Network For Electronic Transfers (Singapore) Pte Ltd First Half Of 2008 (‘NETS’) in a Competition Commission review of a Programme that had been introduced for various Rajah & Tann LLP Hosts merchants, following a complaint by the Consumers Association of Singapore (‘CASE’). 9th Lunchtime Seminar Series Lau Kok Keng, from the iTec Practice Group, assisted by Charissa Soh, successfully acted for YCT Import & Export Pte Ltd (‘YCT’), a local exclusive licensee of the ‘Rooster’ trade mark in respect of Tax, Private Wealth & Trusts Practice cordyceps, in resisting an application by Wing Joo Loong Ginseng Hong (S) Pte Ltd, a local distributor of traditional Chinese medicinal and herbal products, for the trade mark to be revoked and / or Court Of Appeal Delivers Judgment On The LTA- invalidated by the High Court of Singapore. ‘Rooster’ is a well-established brand of cordyceps from Komoco Motors Dispute China which has a history dating back to the 1960s. Wing Joo Loong Ginseng Hong (S) Pte Ltd, who were ordered to pay costs to YCT, are appealing against this decision to the Court of Appeal. Insider Trading And The Vexed Question Of General Availability Significant Disputes Handled
Courts And Arbitration - Our disputes-based lawyers from the Commercial Litigation Practice, the International Arbitration A Question Of Balance? Practice, and the Appeals and Issues Practice continue to handle more notable matters in the legal Recent Developments In circle. Singapore Law Sundaresh Menon SC is lead counsel in the team acting for SingTel and SingTel Mobile in their Disclosure Of Confidential Information defence against the ruling of the Indonesian competition watchdog Business Competition Supervisory By Professional Commission (‘KPPU’) that SingTel had breached competition laws and also in related litigation. In The Pursuit Of Its Legitimate Interests Menon also led a team of lawyers including Ronald Choo, Sim Kwan Kiat, Dawn Tan, Kelvin Poon Public Private and Paul Tan in an appeal in the landmark case of Beckkett Pte Ltd v Deutsche Bank and Dianlia Partnership Projects Setyamukti. The Firm acted for Beckkett. The case has its roots in the Asian financial crisis and – The Process involved Deutsche Bank enforcing the security it had over a basket of shares that Beckkett variously Open Source In IT pledged and / or guaranteed for a loan of US$100 million; and thereafter selling the shares to Contracts
12 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The Dianlia. The case against Deutsche Bank is that in the enforcement of the security, Deutsche First Half Of 2008 breached its duties as a pledgor / guarantor of the shares, and it sold the shares significantly below Rajah & Tann LLP Hosts their true market value. Thus, it should pay Beckkett the difference between the current market 9th Lunchtime Seminar value of the shares and the sale price. The case against Dianlia is that it procured and therefore Series knew of Deutsche Bank’s breaches. Accordingly, the sale of the shares to Dianlia should be set Tax, Private Wealth & aside. Beckkett also alleges that there was a conspiracy between Deutsche Bank and Dianlia to Trusts Practice injure Beckkett. After a year-long trial, the Singapore High Court held that Deutsche Bank had Court Of Appeal Delivers breached its duties but refused to award substantial damages. It did not find that Dianlia knew of Judgment On The LTA- the breaches or was part of a conspiracy. The appeal by Beckkett was against the latter findings. Komoco Motors Dispute The Court of Appeal has reserved judgment. Insider Trading And The Vexed Question Menon, Aurill Kam, Dawn, Disa Sim, Lee Eng Beng SC, Tammy Low, Paul, Preeti Bhagnani and Of General Availability Loke Pei Shan are acting for BNP Paribas in presenting a statutory demand on Jurong Shipyard Pte Ltd (‘JSPL’) for the payment of amounts due pursuant to the termination of a number of foreign Courts And Arbitration - A Question Of Balance? exchange derivative transactions. JSPL filed an application to restrain presentation of the winding Recent Developments In up petition on the basis that the transactions were unauthorised and not valid or binding. The Singapore Law amount is approximately US$51,000,000. Disclosure Of Confidential Information Andre Yeap SC, Dawn Tan and Danny Ong are acting for a subsidiary of CapitaLand Limited, Ankerite By Professional Pte Ltd (‘Ankerite’), in a dispute involving the collective sale of Gillman Heights Condominium In The Pursuit Of Its (‘Gillman Heights’). The Strata Titles Board (‘STB’) approved the application by the majority owners Legitimate Interests for an order for the collective sale of Gillman Heights on 21 December 2007. The objectors appealed Public Private to the High Court pursuant to section 98 of the Building Maintenance and Strata Management Act, Partnership Projects raising various issues of law for determination by the High Court, and praying for the STB order to be – The Process reversed and the application for a collective sale order to be dismissed. Ankerite applied to and was Open Source In IT allowed by the Court to intervene in the proceedings wherein they alleged that the Collective Sale Contracts
13 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The Agreement had expired prior to the approval granted by the STB. Ankerite has since commenced First Half Of 2008 proceedings against this group for breach of contract. Rajah & Tann LLP Hosts 9th Lunchtime Seminar Andre, Adrian Wong and Dominic Chan defended Louise Wiryadi and her sons, who are Series beneficiaries of the estate of a deceased Indonesian businessman in a High Court claim by the foreign executrix for the delivery of certain assets retained by the clients in Singapore. The assets Tax, Private Wealth & Trusts Practice in question were alleged to be held on resulting trust for the deceased and valued at more than S$50 million. Clients have, in turn, brought a counterclaim against the executrix for accounts Court Of Appeal Delivers Judgment On The LTA- and inquiries into the estate and for an order for distribution of assets. This matter generated Komoco Motors Dispute complex private international law issues as well as questions of Indonesian as well as Australian law given that concurrent proceedings have been commenced in various jurisdictions between the Insider Trading And The Vexed Question parties. In this case, Murakami Takako v Wiryadi Louise Maria and Others [2008] SGHC 47, Andrew Of General Availability Ang J delivered an insightful judgment involving the Mocambique rule and the ‘personal equities’ exception in favour of our clients. Courts And Arbitration - A Question Of Balance? Andre, Adrian and Dominic are also acting for United Engineers (Singapore) Pte Ltd, the subsidiary Recent Developments In Singapore Law of a listed company whose ex-employee had received bribes over a period of more than ten years. Judgment against the briber as well as the corrupt employee was obtained pursuant to admissions Disclosure Of Confidential Information contained in their pleadings in an earlier action in 2004. The present proceedings were subsequently By Professional commenced by the briber against the clients for work done in relation to the supply and installation In The Pursuit Of Its of fire protection systems which generated novel questions of law, viz. the effect of illegality on the Legitimate Interests bribers’ claim, and in particular, whether a claim can be brought on a contract tainted by bribery. Public Private The claim amount was about S$500,000. Partnership Projects – The Process Andre, Lai Yew Fei and Dominic represented the Law Society of Singapore in a disciplinary proceedings
Open Source In IT against Norain Abu Bakar, Ruby Tan, Peter Chua. Peter Chua acted for purported attorneys (agents) Contracts
14 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest Developments In The of some of the beneficiaries in the Basharahil estate. Norain and Ruby acted for purchasers of First Half Of 2008 properties owned by the estate. The properties were sold by the Public Trustee as trustee of the Rajah & Tann LLP Hosts estate and the proceeds were paid into court. In the course of the action, several judges had made 9th Lunchtime Seminar various orders whose purpose was that any beneficiary or party seeking payment out from court Series of the proceeds should notify all other interested parties so that they would have the opportunity Tax, Private Wealth & to contest the claims. The three lawyers were aware of these orders being made. Norain and Ruby Trusts Practice filed an application for payment out of the proceeds in a separate action and did not notify other Court Of Appeal Delivers beneficiaries / parties except for Peter Chua’s client. Peter Chua attended the hearing and informed Judgment On The LTA- the court that his client had no instructions on the applications. Part of the proceeds were then paid Komoco Motors Dispute out and the true beneficiaries entitled to this portion of the sale proceeds were thus deprived of their Insider Trading And The entitlement. These disciplinary proceedings before the Court of 3 Judges followed upon a 26-day Vexed Question hearing pursuant to a complaint made by Justice V K Rajah (as he then was) in relation to the conduct Of General Availability of Norain Abu Bakar, Tuby Tan and Peter Chua. Judgment was reserved. Courts And Arbitration - A Question Of Balance? Chandra Mohan and Jerome Robert acted successfully for several international foundations in Recent Developments In resisting an application grounded on state immunity by the Republic of the Philippines in respect of a Singapore Law sum approximately US$29.4 million being interpleaded in Singapore. It was alleged by the Philippine Disclosure Of Government that the funds were monies siphoned off by former President Ferdinand Marcos. Confidential Information By Professional Francis Xavier, Jerome, Ho Hua Chyi and Dawn Wee successfully acted for American Express Bank In The Pursuit Of Its Ltd (‘Bank’), the Defendant and the Respondent in the appeal. The Plaintiff had executed a third Legitimate Interests party charge over her account with the Bank in favour of T. The Plaintiff’s case on appeal was that Public Private the Bank, knowing that the Plaintiff’s son-in-law, T, was her agent, had entered into or continued Partnership Projects with a remunerated referral arrangement with T which the Plaintiff alleged involved duties which – The Process were inconsistent to that owed by T to her and therefore her account with the Bank should be Open Source In IT Contracts
15 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The set aside. The Plaintiff sought leave to argue the new point on appeal. As this case had not been First Half Of 2008 pleaded or advanced below, the Plaintiff also filed three applications seeking that the court allow Rajah & Tann LLP Hosts the Plaintiff to amend her claim, adduce new evidence on the new point and / or grant a re-trial. It 9th Lunchtime Seminar was alleged that this new angle on the case arose so late in the day because of a document which Series had only been disclosed by the Bank at the trial of the action. The Court of Appeal dismissed the Tax, Private Wealth & Plaintiff’s appeal and the applications. Trusts Practice Gregory Vijayendran and Prakash Pillai are acting for The Stansfield Group Pte Ltd in a claim for Court Of Appeal Delivers Judgment On The LTA- a declaration that CASE’s suspension, on or around 20 November 2005, of Stansfield College Komoco Motors Dispute and Singapore Institute of Commerce from the CaseTrust Membership was unlawful and / or in breach of contract and for damages to be assessed for breach of contract. Kala Anandarajah Insider Trading And The Vexed Question and Dominique Lombardi from the Competition and Trade Law Practice Group are acting in the Of General Availability concurrent complaint lodged with the Competition Commission of Singapore.
Courts And Arbitration - Steven Chong SC and Gary Low from the Admiralty and Shipping Practice Group acted for Far A Question Of Balance? Eastern Shipping Co (‘FESCO’), the Owners of the vessel ‘Vasiliy Golovnin’ in respect of an arrest Recent Developments In Singapore Law of the subject vessel by Credit Agricole and Banque Cantonale de Geneve for the same claims previously adjudicated upon by a Togolese court. The arrest was set aside by the High Court without Disclosure Of Confidential Information awarding damages for wrongful arrest. The matter went on appeal and cross-appeal before the By Professional Court of Appeal on 18 February 2008, and a judgment is anticipated shortly. In The Pursuit Of Its Legitimate Interests Toh Kian Sing SC and Kendall Tan were instructed to advise and act for LIG Insurance Co., Ltd (Seoul) and the Owners of the vessel ‘Duk Young Ho’ in respect of the losses / claims of the Owners of ‘Duk Public Private Partnership Projects Young Ho’ arising from a collision with ‘MH Thamrin PB 1600’ off Shanghai in April 2006. An arrest – The Process of the opponent vessel, foreign government-owned ship ‘MH Thamrin PB 1600’, was effected in the
Open Source In IT course of which interesting considerations of sovereign immunity were raised and dealt with. Contracts
16 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The Kian Sing and Philip Tay were likewise instructed by an oil major in relation to a charterparty dispute First Half Of 2008 involving an accommodation barge which was to deploy in an oil field in Vietnam. Kian Sing Rajah & Tann LLP Hosts was also instructed on a massive dispute involving an allegedly fraudulent transfer of several bulk 9th Lunchtime Seminar carriers with a total worth of about US$200 million. Series Additionally, Leong Kah Wah and Koh See Bin acted on the following: Tax, Private Wealth & Trusts Practice • Acted for M/s Hill Dickinson LLP and their clients Sunwoo Merchant Marine in an arrest of a bulk Court Of Appeal Delivers carrier YONG XING MEN (‘YXM’) in Singapore to obtain security in the sum of US$10 million for Judgment On The LTA- Sunwoo’s claim for damages arising out of a charterparty, which arrest led to a serious dispute Komoco Motors Dispute as to the market valuation of the vessel YXM. The dispute on valuation was eventually resolved Insider Trading And The after both sides relied on expert shipbroking evidence at a hearing in the Singapore Courts to Vexed Question determine the market value of the vessel and the Singapore Court took the mid-point between Of General Availability the two experts’ valuation as a fair market value. Courts And Arbitration - A Question Of Balance? • Acted for Seatrek Trans Pte Ltd (‘Seatrek’), disponent owners of the vessel MV STARTEC against Recent Developments In time charterers, Regalindo, for their repudiation of the time charterparty. We assisted clients in Singapore Law instructing New York (‘NY’) lawyers in obtaining a Rule B attachment order for about US$3.75 Disclosure Of million and Regalindo challenged the attachment in NY. Regalindo also applied to the Singapore Confidential Information Courts for an anti-suit injunction against Seatrek and we acted for the clients in dealing with the By Professional In The Pursuit Of Its challenges by Regalindo on both fronts. The case is still pending. Legitimate Interests Together with Tara Davenport, Kah Wah and See Bin acted for UMCi in the concluding second Public Private tranche of a trial of a marine insurance claim brought by UMCi against Tokyo Marine in respect Partnership Projects – The Process of a precision semi-conductor manufacturing machine damaged in the course of air transit, and the underwriters repudiated liability. On 15 April, at the conclusion of the second tranche of trial, Open Source In IT Contracts
17 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The the Singapore High Court found in favour of UMCi and awarded them final judgment of US$1.25 First Half Of 2008 million, plus interest and costs. Rajah & Tann LLP Hosts 9th Lunchtime Seminar Kendall also acted on the following matters: Series • Acted for PT Indah Kiat Pulp & Paper of the Sinar Mas Group (a major paper and pulp producer in Tax, Private Wealth & Indonesia), and their cargo underwriters. The clients were owners of the cargo shipped on board Trusts Practice a vessel which was lost overboard during a voyage in Indonesia. The dispute was with the cargo Court Of Appeal Delivers reinsurers, in respect of non-payment of a claim for substantial loss of the cargo. Judgment On The LTA- Komoco Motors Dispute • Acted for the Iranian Offshore Engineering & Construction Company, who were buyers of an Insider Trading And The oil drilling jack-up rig. A dispute arose in the performance of the contract for sale & purchase Vexed Question with the owners / sellers of the oil-drilling jack-up rig / vessel. We were instructed to advise and Of General Availability assume overall conduct of the dispute which involved a substantial claim by the clients. Courts And Arbitration - A Question Of Balance? Conference On Indonesian Business Law Recent Developments In Singapore Law Rajah & Tann LLP organised a Conference on Indonesian Business Law at the Swissôtel The Stamford on 24 January 2008. More than 150 executives and professionals from various industries attended Disclosure Of this event. Confidential Information By Professional In The Pursuit Of Its Our Andre Yeap SC delivered his Opening Address, afterwhich the Indonesian Ambassador to Legitimate Interests Singapore, His Excellency, Mr Wardana continued with his speech including an introduction to doing business in Indonesia. Public Private Partnership Projects Keynote Speaker, Mr Muhammad Lutfi, Chairman of the Indonesian Capital Investment Coordinating – The Process Board or Badan Koordinasi Penanaman Modal (‘BKPM’), also spoke on the development of Open Source In IT Contracts
18 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The Indonesia’s investment strategies. As a government agency which has jurisdiction over investment First Half Of 2008 policies in Indonesia, BKPM helps ensure that law enforcement policies are adhered to in both the Rajah & Tann LLP Hosts foreign and domestic investment aspects. 9th Lunchtime Seminar Series Mr Lutfi’s speech also highlighted the key aspects of the new investment law in Indonesia. The main features of his speech included discussions on equal treatment, minimum capital requirements, Tax, Private Wealth & Trusts Practice repatriation of investment and profits, legal guarantees, dispute settlements, and investment services. Court Of Appeal Delivers Judgment On The LTA- Mr Lutfi also explained the concept of a ‘one-stop’ service, so as to speed up the processof Komoco Motors Dispute applications and approvals in relation to various business operations, as well as to reduce unnecessary Insider Trading And The red tape. This service includes personal consultation for interested investors and covers both central Vexed Question and regional investment markets. Of General Availability
Courts And Arbitration - The Conference was also attended by several entrepreneurs, some of whom were invited to share A Question Of Balance? their business experience. They are as follows: Recent Developments In Singapore Law • Mr Tony Wenas, Senior Vice President of Legal, Tax and External Affairs (PT Freeport, Indonesia);
Disclosure Of • Mrs Praktimia Semiawan, Director of Finance (PT Indonesia Power); and Confidential Information By Professional In The Pursuit Of Its • Mr M S Sembiring, Trading and Membership Director (Jakarta Stock Exchange). Legitimate Interests Susan Paat of the Indonesian Practice closed the Conference with a speech sharing her experience Public Private involving various legal key points of investment in Indonesia. Partnership Projects – The Process
Open Source In IT Contracts
19 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The Relocation Of Our Shanghai Office First Half Of 2008 Rajah & Tann LLP’s Shanghai Office has re-located in May 2008 to larger premises to accommodate Rajah & Tann LLP Hosts 9th Lunchtime Seminar the growth of our expanding China practice. The new location in Shui On Plaza, adjacent to Series Shanghai’s famed Xintiandi, will be even more convenient for our clients and business associates. This move will also bring us closer to Singapore agencies such as Singapore Tourism Board, IE Tax, Private Wealth & Trusts Practice Singapore, EDB and Contact Singapore, as we will be located on the same floor as these trade and investment promotion agencies. Our new address and contact details in Shanghai are as follows: Court Of Appeal Delivers Judgment On The LTA- Address : 上海市淮海中路333号瑞安广场19楼1905-1906室 Komoco Motors Dispute Unit 1905-1906, Shui On Plaza, 333 Huai Hai Middle Road, Shanghai Insider Trading And The China 200021 Vexed Question Of General Availability Main Line : (86) 21 6120 8818 Fax Number : (86) 21 6120 8820 Courts And Arbitration - A Question Of Balance? Recent Developments In Publications Singapore Law Arnold Tan from the Corporate & Capital Markets Practice Group wrote the chapter on ‘The Disclosure Of Regulation of Hedge Funds in Singapore’, in the third edition of the book titled ‘How To Start Confidential Information And Grow A Hedge Fund In Asia’. The book, sponsored by Credit Suisse, Deacons and Ernst & By Professional In The Pursuit Of Its Young, brings together the latest information on market developments, as well as a country-by- Legitimate Interests country analysis of the regulatory frameworks governing the marketing of such funds.’
Public Private We have also written for a report which addresses employment issues in transfers of undertakings. Partnership Projects – The Process Kala Anandarajah and Hazel Galimba Guiling contributed the Singapore chapter of ‘Employment Issues On A Transfer Of Business: A Regional Perspective’, a report that tackles various employment Open Source In IT Contracts
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A Round-Up Of Latest Developments In The issues on a transfer of business involving multiple jurisdictions. The report is a coordinated effort First Half Of 2008 by several leading law firms in the region, most of which are members of the Employment Rajah & Tann LLP Hosts Law Alliance (‘ELA’). ELA is an organisation comprising 2,000 leading employment and labour 9th Lunchtime Seminar lawyers from more than 15 nations. Please contact the Knowledge & Risk Management team at Series [email protected] if you would like a copy of the report. Tax, Private Wealth & Trusts Practice Concluding Words
Court Of Appeal Delivers Rajah & Tann LLP continues its remarkable feat to attract the top talent in the legal market. Judgment On The LTA- Coupled with the numerous recognitions it has received as a result of audited research carried Komoco Motors Dispute out by independent legal publications and directories, its testimony of its leading practices is well- Insider Trading And The placed to provide clients with cutting-edge services. Vexed Question Of General Availability
Courts And Arbitration - A Question Of Balance? Recent Developments In Singapore Law
Disclosure Of Confidential Information By Professional In The Pursuit Of Its Legitimate Interests
Public Private Partnership Projects – The Process
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A Round-Up Of Latest Developments In The First Half Of 2008 Rajah & Tann LLP Hosts
Rajah & Tann LLP Hosts th 9th Lunchtime Seminar 9 Lunchtime Seminar Series Series
Tax, Private Wealth & Our annual Lunchtime Seminar Series for 2008 kicked off on 24 April 2008 with a talk on ‘Recent Trusts Practice Developments In International Arbitration Law’ by the Firm’s International Arbitration Practice Group. Now in its 9th year, this popular seminar series provides a wide range of topics of current Court Of Appeal Delivers Judgment On The LTA- legal and business interest to clients and friends. The speakers come from the various Practice Komoco Motors Dispute Groups of the Firm who share their expertise, experience and insights in their respective areas of specialisation. Insider Trading And The Vexed Question Of General Availability Presentations are always interactive with questions asked as the session progresses or at the end. The seminar series, to last until September this year, also offers opportunities for participants to Courts And Arbitration - network or simply catch up with former colleagues or schoolmates. A Question Of Balance? Recent Developments In The interesting topics lined up for our seminar include ‘What Duties Does A Creditor Owe To His Singapore Law Fellow Creditors?’ by the Business Finance & Insolvency Practice Group, ‘New Licensing Regulation Disclosure Of For All Builders: Its Effect And Implications’ by the Infrastructure & Major Projects Practice Group, Confidential Information and ‘Recent Developments In Singapore Maritime Law’ by the Admiralty & Shipping Practice By Professional In The Pursuit Of Its Group. Legitimate Interests For a detailed list of all the upcoming seminars, please see the box below. You can register for any Public Private one of the seminars online at http://eOASIS.rajahtann.com. We may also have additional specialised Partnership Projects – The Process seminars from time to time. We will keep you all posted of any developments relating to this.
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A Round-Up Of Latest Developments In The Lunchtime Seminar Series 2008 First Half Of 2008 Date Topic Rajah & Tann LLP Hosts 9th Lunchtime Seminar 24 April Recent Developments In International Arbitration Law Series By International Arbitration Practice Group Tax, Private Wealth & 8 May A Practical Review Of Developments In Competition & Merger Laws Trusts Practice By Competition & Trade Law Practice Group Court Of Appeal Delivers 15 May What Duties Does A Creditor Owe To His Fellow Creditors? Judgment On The LTA- By Business Finance & Insolvency Practice Group Komoco Motors Dispute 29 May New Licensing Regulation For All Builders: Its Effect And Implications Insider Trading And The By Infrastructure & Major Projects Practice Group Vexed Question Of General Availability 26 June Recent Legal Developments In New Media – Impact On The IP Paradigm By iTec Practice Group Courts And Arbitration - A Question Of Balance? 3 July Insider Trading Recent Developments In By Commercial Litigation Practice Group Singapore Law 17 July Indian Infrastructure – A Review Disclosure Of By South Asia Practice Group Confidential Information By Professional 31 July Recent Developments In Singapore Maritime Law In The Pursuit Of Its By Admiralty & Shipping Practice Group Legitimate Interests 14 August Developments In Indonesian Business Laws Public Private By Indonesian Practice Group Partnership Projects – The Process 18 September Recent Case-Law Development Impacting The Evidence Act By Commercial Litigation Practice Group Open Source In IT Contracts
23 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The First Half Of 2008 Tax, Private Wealth & Trusts Practice
Rajah & Tann LLP Hosts 9th Lunchtime Seminar Rajah & Tann LLP boosts its Tax, Private Wealth & Trusts Practice. Mr Yeoh Lian Chuan and Ms Series Stacy Choong from Allen & Gledhill LLP and Drew & Napier LLC, respectively, have joined Rajah & Tax, Private Wealth & Tann LLP as partners. Both are leading tax and private wealth practitioners, each with more than Trusts Practice a dozen years’ specialist experience.
Court Of Appeal Delivers Associate Professor Stephen Phua, a leading tax academic from the National University of Singapore, Judgment On The LTA- Komoco Motors Dispute has also joined the Firm as a tax consultant.
Insider Trading And The The three new specialists will join the Firm’s existing tax partners Soon Choo Hock and Christina Vexed Question Ng, and its trust practitioner Ronald Choo. Of General Availability
Courts And Arbitration - A Question Of Balance? Recent Developments In Singapore Law
Disclosure Of Confidential Information By Professional In The Pursuit Of Its Legitimate Interests
Public Private Partnership Projects – The Process
Open Source In IT Standing (L-R): Stephen Phua, Soon Choo Hock, Ronald Choo, Yeoh Lian Chuan; Seated: Stacy Choong, Christina Ng Contracts
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A Round-Up Of Latest Developments In The With the new additions, the Firm will boast one of the strongest tax practices in Singapore, with First Half Of 2008 members having more than 80 years of combined tax experience. The Firm’s tax practice is a full Rajah & Tann LLP Hosts service practice covering all areas of taxation, but with particular focus on the following: 9th Lunchtime Seminar Series • planning and documentation of complex corporate transactions and structures;
Tax, Private Wealth & • taxation matters involving the financial services, transport and infrastructure sectors; Trusts Practice
Court Of Appeal Delivers • resolution of tax controversies; and Judgment On The LTA- Komoco Motors Dispute • goods and services tax.
Insider Trading And The Working closely with the Firm’s many specialists in other practice areas (including financial services Vexed Question regulation, banking, litigation and real estate), our Tax, Private Wealth and Trusts Practice advises Of General Availability high net worth individuals, as well as financial institutions and professional trustees on a full range Courts And Arbitration - of matters, including the following: A Question Of Balance? Recent Developments In • integrated tax, trusts and estate wealth planning & structuring; Singapore Law
Disclosure Of • drafting and administration of various types of trusts; Confidential Information By Professional • establishment of structures for family governance and asset holding; In The Pursuit Of Its Legitimate Interests • wills & probate;
Public Private • preparation of documentation for private banks; Partnership Projects – The Process • advising on, structuring and documenting investments into various kinds of assets including Open Source In IT structured products; Contracts
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A Round-Up Of Latest Developments In The • philanthropy and charitable giving; First Half Of 2008 • immigration; Rajah & Tann LLP Hosts 9th Lunchtime Seminar Series • real estate; and
Tax, Private Wealth & • family law. Trusts Practice The credentials of our new Tax, Private Wealth & Trusts specialists are set out below. Court Of Appeal Delivers Judgment On The LTA- Yeoh Lian Chuan Komoco Motors Dispute Lian Chuan graduated from King’s College, London in 1992, qualified as a Barrister-at- Insider Trading And The Vexed Question Law at Lincoln’s Inn in 1993 and was called to the Singapore Bar in 1994. Of General Availability Lian Chuan has been a tax practitioner for more than 12 years and focuses primarily Courts And Arbitration - on tax structuring and planning advice, and indirect tax. He has particular expertise in the areas A Question Of Balance? Recent Developments In of corporate transactions and financial services, bringing to his work in tax law his extensive Singapore Law experience in corporate finance and commercial law gleaned from his time with leading local and international law firms. Disclosure Of Confidential Information In addition, from 1998 to 2001, Lian Chuan was a Deputy Director in the Financial Centre By Professional In The Pursuit Of Its Development Department of the Monetary Authority of Singapore where he headed the Tax Unit. Legitimate Interests Lian Chuan has also worked extensively on a number of areas of financial sector policy including
Public Private liberalisation, private banking and wealth management, employee savings and the trust industry. Partnership Projects – The Process Before joining Rajah & Tann LLP in June 2008, Lian Chuan was a partner in the Financial Services Department of Allen & Gledhill LLP for 6 ½ years. Open Source In IT Contracts
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A Round-Up Of Latest Developments In The Lian Chuan also advises a variety of clients on financial services regulatory matters. First Half Of 2008 Lian Chuan is recommended by the following independent international journals: Rajah & Tann LLP Hosts 9th Lunchtime Seminar Series • Who’s Who Legal - Singapore 2008 for Corporate Tax Practice, described as being ‘as knowledgeable as you can get when it comes to Singapore taxation’; Tax, Private Wealth & Trusts Practice • The Practical Law Company’s Which Lawyer? Yearbook (2008); and
Court Of Appeal Delivers • Best Lawyers 2008. Judgment On The LTA- Komoco Motors Dispute Lian Chuan is a member of the International Tax Planning Association, the International Fiscal Insider Trading And The Association, the Society of Trust and Estate Practitioners (‘STEP’) and the Singapore Trustees Vexed Question Association. Of General Availability
Courts And Arbitration - Stacy Choong A Question Of Balance? Recent Developments In Stacy commenced her tax and trust practice upon graduation from the National Singapore Law University of Singapore in 1994. She is admitted to the Singapore Bar (1995) and the New York Bar (2001) and has practiced in the United States. Disclosure Of Confidential Information Stacy advises on all aspects of tax laws and has substantial experience in providing tax planning By Professional In The Pursuit Of Its and structuring advice in connection with a wide range of corporate transactions. She has also Legitimate Interests built an extensive tax dispute resolution practice including the obtaining of tax rulings, liaision and
Public Private negotiations with tax authorities and the handling of tax litigation. Partnership Projects – The Process
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A Round-Up Of Latest Developments In The Stacy is also recognised for her private wealth and trust practice. She advises on trusts for both First Half Of 2008 commercial and family / private purposes and also advises charities, non-profit organisations and Rajah & Tann LLP Hosts foundations. 9th Lunchtime Seminar Series Stacy is listed in the following independent legal journals:
Tax, Private Wealth & • Best Lawyers 2008 in the specialties of Tax & Trust and Estates; Trusts Practice
Court Of Appeal Delivers • Who’s Who Legal – Singapore 2008 for Corporate Tax; and Judgment On The LTA- Komoco Motors Dispute • The Practical Law Company’s Which Lawyer? Yearbook (2006, 2007 and 2008) in the area of Tax Practice. Insider Trading And The Vexed Question Stephen Phua Of General Availability Stephen has taught at university level in the area of tax law for over 18 years. Courts And Arbitration - A Question Of Balance? Recent Developments In In that time, Stephen has also been a tax consultant for and has undertaken numerous Singapore Law projects with government departments.
Disclosure Of For 10 years from 1996, Stephen served on the Singapore Income Tax Board of Review. He remains Confidential Information a member of the GST Board of Review, the Valuation Review Board, and the Ministry of Finance’s By Professional In The Pursuit Of Its Tax Advisory Group. He was Director for the Centre for Commercial Law Studies (‘CCLS’) from 2001 Legitimate Interests to 2005, and was recently appointed an examiner at The Chartered Institute of Taxation, London.
Public Private He is a member of the Steering Group of the INTR, Centre for Tax Policy and Administration, OECD. Partnership Projects Stephen has held visiting / teaching positions in universities such as Harvard University, New York – The Process University and University of British Columbia and was a programme advisor to the International Tax Open Source In IT and Investment Centre in Washington (2007). Contracts
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A Round-Up Of Latest Developments In The Besides numerous conference papers and articles in refereed journals, Stephen’s publications include First Half Of 2008 being Editor of two books: ‘Recent Developments in Financial Regulation and Capital Markets’ Rajah & Tann LLP Hosts (2003, LexisNexis Butterworths) and ‘Excise Taxation in Asia’ (2007, CCLS, Faculty of Law, NUS). 9th Lunchtime Seminar Series We also set out in the following paragraphs the credentials of our existing Tax, Private Wealth & Trust lawyers. Tax, Private Wealth & Trusts Practice Soon Choo Hock Court Of Appeal Delivers Judgment On The LTA- Choo Hock brings with him over two decades’ practice experience in banking, corporate Komoco Motors Dispute and tax law in addition to seven years of lecturing on revenue law at the National University of Singapore. He is also a member of the Singapore Income Tax Board of Insider Trading And The Vexed Question Review. Of General Availability In addition to his tax expertise, Choo Hock leads the Firm’s Corporate Banking team where he has Courts And Arbitration - handled a substantial number of deals involving loans and security documentation. In particular, A Question Of Balance? Recent Developments In he has been involved in negotiating and drafting structured finance documentation, syndicated Singapore Law loan documentation and restructuring transactions. He advises American, Japanese, European and Singapore banks and financial institutions on various aspects of banking and lending laws and Disclosure Of Confidential Information compliance issues. By Professional In The Pursuit Of Its Choo Hock has also been cited in various legal journals as follows: Legitimate Interests • The Practical Law Company’s Which Lawyer? Yearbook (2006, 2007 and 2008), described as an Public Private expert in the area of tax; Partnership Projects – The Process • AsiaLaw Profiles (2007), proclaimed as a recommended lawyer in the area of capital markets and Open Source In IT corporate finance; Contracts
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A Round-Up Of Latest Developments In The • Asia Pacific Legal 500 2006 / 2007; and First Half Of 2008 • Chambers Global The World’s Leading Lawyers (2004 / 2005). Rajah & Tann LLP Hosts 9th Lunchtime Seminar Series Christina Ng
Tax, Private Wealth & Christina has more than 18 years of legal practice experience. She specialises in energy Trusts Practice and infrastructure, and has been extensively involved with investments and mergers and acquisitions in the region. To each of her transactions, she brings her knowledge and Court Of Appeal Delivers Judgment On The LTA- experience in taxation which is particularly useful to clients in structuring cross-border Komoco Motors Dispute transactions.
Insider Trading And The Christina also regularly advises clients on a diverse range of tax planning and structuring matters. Vexed Question Of General Availability Christina has been recommended by various independent legal journals as follows: Courts And Arbitration - A Question Of Balance? • The Practical Law Company’s Which Lawyer? Yearbook (2008) as a highly recommended tax Recent Developments In practitioner; Singapore Law • International Tax Review 2004; Disclosure Of Confidential Information • Asia Pacific Legal 5002006 / 2007 as a leading individual for Corporate / M&A; By Professional In The Pursuit Of Its Legitimate Interests • Who’s Who Legal - Singapore 2007 for M&A;
Public Private • Asia Pacific Legal 5002003 / 2004 for M&A with a technology specialisation; and Partnership Projects – The Process • Asia Pacific Legal 500 2004 / 2005 for advising the Bharti Changi Consortium on the
Open Source In IT modernisation and restructuring of the Mumbai and Delhi airport. Contracts
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A Round-Up Of Latest Developments In The Christina is a member of the International Tax Planning Association, the International Fiscal First Half Of 2008 Association, and the Society of Trust and Estate Practitioners (‘STEP’). Rajah & Tann LLP Hosts 9th Lunchtime Seminar Ronald Choo Series Ronald is an experienced litigator with more than 15 years of legal experience. He has Tax, Private Wealth & argued significant cases at all levels, including the High Court and the Court of Appeal Trusts Practice in the areas of banking, trusts and insolvency. Ronald was also formerly an Assistant Court Of Appeal Delivers Registrar of the Supreme Court. Judgment On The LTA- Komoco Motors Dispute In addition to his courtroom practice, one of Ronald’s specialisations is private trusts and estate planning. He regularly advises clients (both major international financial institutions and individuals) Insider Trading And The Vexed Question on the creation of settlements and trusts as well as the subsequent operation and administration Of General Availability of the trust structure, the obligations and duties of trustees, the rights of beneficiaries, changes of trustees, and the dissolution of trusts. Courts And Arbitration - A Question Of Balance? Recent Developments In Ronald is a member of the Singapore Trustees Association. Singapore Law
Disclosure Of Confidential Information By Professional In The Pursuit Of Its Legitimate Interests
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A Round-Up Of Latest Developments In The First Half Of 2008 Court Of Appeal Delivers Judgment
Rajah & Tann LLP Hosts 9th Lunchtime Seminar On The LTA-Komoco Motors Dispute Series
Tax, Private Wealth & In a judgment handed down on 8 May 2008 in Registrar of Vehicles v Komoco Pte Ltd [2008] SGCA Trusts Practice 19, the Singapore Court of Appeal set out its reasons for ordering judgment in favour of the Land Transport Authority (‘LTA’) in a rare and landmark administrative law dispute with motor vehicle Court Of Appeal Delivers Judgment On The LTA- importer, Komoco Pte Ltd (‘Komoco’). The dispute concerned Komoco’s refusal to pay outstanding Komoco Motors Dispute additional registration fees (‘ARF’) of over S$7 million following its under-declaration of the value of some 17,488 imported vehicles. Insider Trading And The Vexed Question Of General Availability Background
Courts And Arbitration - Under the relevant statutory framework, importers of motor vehicles declare certain information A Question Of Balance? based on which the Customs of Singapore (‘Customs’) calculates the open market value (‘OMV’) of Recent Developments In a vehicle. Pursuant to a policy directive in 1998 by then Minister for Finance, Dr Goh Keng Swee, Singapore Law the ARF is calculated based on the OMV. As a matter of practice, the Registrar of Vehicles, now Disclosure Of under the LTA, adopts the OMV derived by Customs in its calculation of the ARF. Confidential Information By Professional Following an audit in 2001 by Customs, Komoco was found to have under-declared the value of In The Pursuit Of Its Legitimate Interests its vehicles between 1999 and 2003. After a series of negotiations, Komoco accepted an offer of composition by Customs although it continued to protest that there was no under-valuation. Public Private Komoco did not seek to challenge Customs’ calculations in court (although such a right is afforded Partnership Projects – The Process under the Customs Act).
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A Round-Up Of Latest Developments In The Instead, when Komoco received a letter from the Registrar to pay ARF based on the new OMV First Half Of 2008 calculated by Customs, Komoco sought to argue that there was no underdeclaration. Having Rajah & Tann LLP Hosts failed to convince the Registrar in a series of correspondence, Komoco commenced proceedings 9th Lunchtime Seminar to judicially review the Registrar’s decision. A settlement followed by which the Registrar agreed to Series grant Komoco a fair, reasonable and just hearing. On 10 March 2006, Komoco and its consultants Tax, Private Wealth & presented their arguments and evidence to the Registrar for about two hours. On 18 May 2006, the Trusts Practice Registrar met with Komoco to inform them that, having heard and considered their representations, Court Of Appeal Delivers she would not depart from her practice of adopting Customs’ valuation of vehicles imported. Judgment On The LTA- Komoco Motors Dispute Komoco then proceeded to launch another round of proceedings to quash the Registrar’s decision and compel her to re-consider her decision. Principally, Komoco argued that the Registrar’s practice Insider Trading And The Vexed Question of adopting Customs’ valuations was illegal, irrational and / or unreasonable. It also contended that Of General Availability the Registrar, by slavishly following that practice despite Komoco’s representations, had fettered her discretion and / or abrogated her powers to Customs. Courts And Arbitration - A Question Of Balance? Recent Developments In Decision Of The High Court Singapore Law The High Court found that the Registrar’s practice of adopting Customs’ valuations was perfectly Disclosure Of reasonable. However, the Judge found that the Registrar had not given genuine consideration to Confidential Information Komoco’s representations because she had listened to Komoco’s representations with a frame of By Professional In The Pursuit Of Its mind predisposed to maintaining her existing practice. The Judge further held that the Registrar Legitimate Interests had abrogated her discretion because it appeared from a letter the Registrar wrote that her decision whether Komoco had to pay ARF based on Customs’ post-audit valuation was ‘conditional on Public Private Partnership Projects further advice from Customs’. – The Process
Open Source In IT Contracts
33 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The The Registrar’s Arguments On Appeal First Half Of 2008 On appeal, the arguments put forward on behalf of the Registrar were the following: Rajah & Tann LLP Hosts th 9 Lunchtime Seminar • The Registrar’s practice of adopting Customs’ valuations was supported by the language of the Series relevant statutes, Parliament’s intention, logic and commonsense. Tax, Private Wealth & Trusts Practice • The Registrar was entitled to give due regard to her practice of adopting Customs’ valuation provided that she was prepared to depart from it in exceptional cases. In this regard, her Court Of Appeal Delivers Judgment On The LTA- predisposition towards applying her practice was not automatically invalid as a matter of law and Komoco Motors Dispute did not constitute an unlawful fetter on her discretion.
Insider Trading And The • Similarly, the Registrar cannot be held to have abrogated her discretion simply because she had Vexed Question Of General Availability sought advice from Customs.
Courts And Arbitration - • On the facts, the Registrar gave genuine consideration to the representations made by Komoco. A Question Of Balance? The Registrar had stated in her affidavit that she had deliberated the evidence presented by Recent Developments In Singapore Law Komoco and gave several cogent and relevant reasons for her decisions. In the absence of evidence to the contrary, the High Court should not have doubted the Registrar’s sworn evidence. Disclosure Of Confidential Information • There was no allegation by Komoco that it was unable to present any evidence. It had been given By Professional In The Pursuit Of Its the opportunity to present whatever evidence it felt necessary on 10 March 2006. Legitimate Interests • On the evidence presented by Komoco, there were no exceptional circumstances justifying a Public Private departure from the Registrar’s use of Customs’ valuation. In particular: Partnership Projects – The Process - The Registrar was entitled to accept Customs’ calculations at face value because of its expertise Open Source In IT and its thorough audit over two years; Contracts
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A Round-Up Of Latest Developments In The - The fact that Komoco did not challenge Customs’ calculations also supported the inference First Half Of 2008 that even it thought that Customs’ calculations were accurate; Rajah & Tann LLP Hosts 9th Lunchtime Seminar - It was not ambiguous what expenses were to be declared; therefore, there was no reason to Series accept Komoco’s allegation that Customs’ calculations were wrong; and
Tax, Private Wealth & - There was nothing new that Komoco presented to the Registrar that it did not already present Trusts Practice to Customs. Court Of Appeal Delivers Judgment On The LTA- The Decision Of The Court Of Appeal Komoco Motors Dispute The Court of Appeal unanimously accepted the arguments advanced by the Registrar. Writing for Insider Trading And The the court, Chan Sek Keong CJ held that: Vexed Question Of General Availability • There was ‘little doubt’ that in the context of public administration, the Registrar’s practice of using Courts And Arbitration - Customs’ calculations as the basis for the ARF ‘was and is the most efficient way’ of administering A Question Of Balance? the ARF scheme. The court further held that this practice possessed ‘all the attributes of good Recent Developments In Singapore Law public administration in that it is cost-effective, objective, open and transparent to all traders and importers of motor vehicles’. Disclosure Of Confidential Information • As a matter of law, the Registrar was entitled to adhere to her practice unless Komoco could By Professional In The Pursuit Of Its show that its case was exceptional. However, the High Court did not discuss or explore why Legitimate Interests Komoco’s situation was considered exceptional.
Public Private • The fact that Komoco accepted Customs’ offer of composition under protest was not an Partnership Projects exceptional factor; otherwise, it would ‘destroy’ the Registrar’s practice. – The Process
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A Round-Up Of Latest Developments In The • There was no question of the Registrar fettering or abrogating its discretion in this case. In using First Half Of 2008 Customs’ calculations as the basis for the ARF, the Registrar was ‘not taking instructions from Rajah & Tann LLP Hosts Customs. Instead, the Registrar made this decision in the exercise of her power [under the Road 9th Lunchtime Seminar Traffic (Motor Vehicles, Registration and Licensing) Rules (‘Road Traffic Rules’)] and for practical Series reasons’. The arithmetical exercise of applying a fixed formula to the OMV to calculate the ARF Tax, Private Wealth & did not and could not possibly involve acting under the instructions of Customs. Trusts Practice • Furthermore, on the facts, the Registrar gave genuine consideration to Komoco’s representations. Court Of Appeal Delivers First, the Court of Appeal held that there was no basis to go behind the Registrar’s sworn affidavit Judgment On The LTA- Komoco Motors Dispute that she had considered Komoco’s case. Second, the reasons given by the Registrar for rejecting Komoco’s representations were justifiable. In particular, the Court said that the Registrar was Insider Trading And The Vexed Question entitled to take into account the fact that Komoco had not challenged Customs’ valuations Of General Availability despite its right to do so.
Courts And Arbitration - • Given that the Registrar had given genuine consideration to Komoco’s representations, ‘she A Question Of Balance? could not possibly have rejected these representations merely out of deference to Customs’. Recent Developments In Singapore Law Hence, there could have been no abrogation of discretion.
Disclosure Of • The Registrar in fact was not obliged to make any inquiries at all if she had a reliable means of Confidential Information determining the vehicle’s OMV. In other words, the Registrar need not have given Komoco any By Professional In The Pursuit Of Its hearing at all ‘so long as her determination [not to hear] is not arbitrary or discriminatory’. An Legitimate Interests importer’s right to be heard is satisfied by its ability to challenge the OMV calculated by Customs under the Customs Act. An importer that does not avail itself of this route of redress cannot seek Public Private Partnership Projects to collaterally attack Customs’ calculations of the OMV before the Registrar. Otherwise, ‘the goal – The Process of efficiency in public administration would not be advanced’.
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A Round-Up Of Latest Developments In The • Furthermore, the Government should be regarded as an ‘indivisible legal entity’ when it First Half Of 2008 discharges its executive functions and powers. Therefore, the court would not construe the Rajah & Tann LLP Hosts Registrar’s powers so that she was compelled to grant a fresh hearing to every motor vehicle 9th Lunchtime Seminar importer that was dissatisfied with Customs’ valuation when it should have raised a challenge Series under the Customs Act. Tax, Private Wealth & Trusts Practice Comments
Court Of Appeal Delivers This case represents the first direct challenge to the Registrar’s practice of using Customs’ assessment Judgment On The LTA- of the OMV of a vehicle for the purpose of calculating the ARF payable since the policy directive Komoco Motors Dispute was announced in 1968. Komoco’s challenge also encompassed very specific challenges to the Insider Trading And The manner in which the Registrar was supposed to have considered its representations, namely, that Vexed Question the Registrar must adopt an open mind completely without regard to the virtues of maintaining Of General Availability a practice in existence for the last 40 years. If Komoco had been successful, importers of motor Courts And Arbitration - vehicles would have two opportunities to undermine Customs’ valuations – before Customs itself A Question Of Balance? and before the Registrar. The Registrar would have been compelled to listen to every such challenge, Recent Developments In Singapore Law even if (as in this case) no new evidence is adduced before the Registrar. As a matter of law and common sense, the Court of Appeal’s judgment is unimpeachable and to be welcomed. Disclosure Of Confidential Information Although it is possible to read the judgment more broadly to suggest that statutory bodies in By Professional In The Pursuit Of Its general need not grant a hearing to complainants, probably the better reading is that the Court Legitimate Interests of Appeal was limiting its observations to the statutory scheme before it. In this regard, it should be noted that the statutory scheme in this case was rather unique in that there was: (a) a policy Public Private Partnership Projects directive from the Minister stating that the ARF should be calculated on the basis of the OMV; (b) a – The Process provision under the Customs Act and mechanisms that permitted challenges to the calculation of
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37 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The the OMV of imported vehicles by Customs which Komoco chose not to avail themselves of; and (c) First Half Of 2008 specific statutory language in the Road Traffic Rules that did not mandate but gave the Registrar Rajah & Tann LLP Hosts the discretion to make ‘such inquiries, if any, as she thought fit’. 9th Lunchtime Seminar Series This appeal was argued by Sundaresh Menon SC, who was assisted by Simon Goh and Paul Tan.
Tax, Private Wealth & Trusts Practice The Appeals And Issues Practice Group In the handling of this appeal for the Registrar of Vehicles, Rajah & Tann LLP assembled a team comprising lawyers who Court Of Appeal Delivers Judgment On The LTA- had handled the matter at first instance before the High Court and lawyers who focus on appellate work. Komoco Motors Dispute The Appeals & Issues Practice (‘A&I Practice’) is a new practice group that the Firm is setting up to bring together a group of lawyers who will concentrate on appellate advocacy and developing thought leadership on significant issues of Insider Trading And The Vexed Question law. We believe that appellate advocacy requires a different craft from trial litigation and that in appellate work, there is Of General Availability tremendous advantage to be gained by obtaining a fresh perspective from the appellate lawyer, who being unconnected with the trial, will be able to examine the issues from a perspective that is not coloured by the trial process. Courts And Arbitration - A Question Of Balance? In the handling of significant appeal cases, the lawyers in the A&I Practice will work closely with the trial lawyers to Recent Developments In identify and frame the issues to be raised on appeal, evaluate the prospects of success of the appeal, and formulate the Singapore Law arguments. Such an approach will enable us to bring together the knowledge of the facts and issues of the case, which the trial lawyer has, with the unique insight of the appellate lawyer into the trends and philosophy that underlie the Disclosure Of decisions of our apex court. Confidential Information By Professional For more information on the Appeals & Issues Practice, please contact: In The Pursuit Of Its Legitimate Interests Sundaresh Menon SC Aurill Kam Senior Partner Partner Public Private Partnership Projects DID 6232 0240 DID 6232 0733 – The Process [email protected] [email protected]
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38 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The First Half Of 2008 Insider Trading And The Vexed Question
Rajah & Tann LLP Hosts 9th Lunchtime Seminar Of General Availability Series
Tax, Private Wealth & Introduction Trusts Practice ‘Insider trading is a curious animal: there are many more journal articles discussing what it should be than reported cases of what it is. We all think we know what it is, yet defining it in the clear Court Of Appeal Delivers language required of a statutory provision with criminal liability attached has proved problematic. Judgment On The LTA- Most people agree that it is undesirable, yet there is still debate on precisely why it should be so Komoco Motors Dispute from a philosophical perspective’. Insider Trading And The Michael Gething, Vexed Question ‘Insider Trading Enforcement: Where are we now and where do we go from here?’ Of General Availability (1998) 16 Companies and Securities Law Journal 607
Courts And Arbitration - There is no doubt that in Singapore, insider trading is prohibited because it gives rise to information A Question Of Balance? Recent Developments In disparity which offends the principles of fairness and hurts the integrity of our securities markets. Singapore Law At the Second Reading Speech of the Securities and Futures Bill 2001, the then Deputy Prime Minister and Chairman, Monetary Authority of Singapore, Mr. Lee Hsien Loong, explained: Disclosure Of Confidential Information ‘At the core, the mischief of insider trading lies in tilting the playing field unfairly against other market By Professional participants. Those who knowingly have inside information should be prohibited from trading…’ In The Pursuit Of Its Legitimate Interests Under our insider trading laws, persons in possession of non-public material price sensitive Public Private information are prohibited from trading or procuring others to trade in the securities to which Partnership Projects such information relates (see sections 218(2) and 219(2) of the Securities and Futures Act (Cap – The Process 289) (‘SFA’)) and prohibited from communicating such information to others (see sections 218(3) Open Source In IT Contracts
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A Round-Up Of Latest Developments In The and 219(3) of the SFA). Philosophically, these prohibitions are aimed at ensuring that persons who First Half Of 2008 are not seized of the same material price sensitive information are not placed at a disadvantage Rajah & Tann LLP Hosts when they trade with those who possess such information. 9th Lunchtime Seminar Series When then, is information treated, for the purposes of our insider trading legislation, to be ‘generally available’ and not just within the domain of a selected few? Since the coming into force Tax, Private Wealth & Trusts Practice of Singapore’s new insider trading regime under the ‘SFA’ in 2002, there has been no litigation brought, and hence no opportunity for judicial pronouncements to be made, on this question. Court Of Appeal Delivers Judgment On The LTA- This article considers two pertinent decisions of the New South Wales Criminal Court of Appeal on Komoco Motors Dispute this question and suggests that there are cogent and persuasive reasons for the Singapore Courts Insider Trading And The to adopt the approach taken in Australia. Vexed Question Of General Availability By way of a quick overview, for an insider trading contravention to be made out, there must be Courts And Arbitration - (i) possession of information of a material price sensitive nature that is not generally available; A Question Of Balance? (ii) knowledge that the information is not generally available and of a material price sensitive Recent Developments In nature; and (iii) the carrying out of a prohibited act whilst in possession of such material price Singapore Law sensitive information (ie dealing in the relevant securities, procuring another to deal in the relevant Disclosure Of securities, or communication of the material price sensitive information to another) (see sections Confidential Information 218 and 219 of the SFA). By Professional In The Pursuit Of Its Legitimate Interests A comprehensive treatment of the prerequisites to make out an insider trading contravention under the SFA is outside the scope of this article. This article looks only very briefly at when information Public Private is regarded to be ‘generally available’, such that the operation of the insider trading prohibitions Partnership Projects – The Process under the SFA is not triggered.
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A Round-Up Of Latest Developments In The General Availability First Half Of 2008 The test of general availability is encapsulated in section 215 of the SFA. This section, like the Rajah & Tann LLP Hosts 9th Lunchtime Seminar Australian provision from which it was derived, ie section 1002B of the Corporations Law, Series contemplates three alternative scenarios under which information is regarded to be generally available, namely, where: Tax, Private Wealth & Trusts Practice • the information consists of readily observable matter; Court Of Appeal Delivers Judgment On The LTA- • the information has been made known in a manner that would or would be likely to bring Komoco Motors Dispute it to the attention of persons who commonly invest in securities and a reasonable period for Insider Trading And The dissemination has elapsed since it was so made known; or Vexed Question Of General Availability • the information consists of deductions, conclusions or inferences made or drawn from either or both of the information referred to in the preceding limbs. Courts And Arbitration - A Question Of Balance? It is noteworthy that limb (b) is expressly stated in section 215 of the SFA as ‘without limiting the Recent Developments In Singapore Law generality’ of the ‘readily observable’ limb (limb (a)).
Disclosure Of The Decision In R v Firns Confidential Information By Professional The first two limbs of the Australian equivalent of Section 215 of the SFA were considered in the In The Pursuit Of Its 2001 New South Wales Criminal Court of Appeal (‘Court’) decision of R v Firns [2001] NSWCCA Legitimate Interests 191. In a 2-1 majority decision, it was held in Firns that if information is readily observable in Public Private an overseas jurisdiction, the general availability test under the first limb is satisfied and it is not Partnership Projects necessary for the information to be also readily observable in Australia. The dissenting judge, – The Process Carruthers AJ, was, however, of the view that the words ‘readily observable matter’ cannot be Open Source In IT Contracts
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A Round-Up Of Latest Developments In The allowed to operate in a vacuum. In His Honour’s view, for the information to be generally available First Half Of 2008 on the basis that it consists of readily observable matter, it must at least be readily observable by Rajah & Tann LLP Hosts members of the Australian public. 9th Lunchtime Seminar Series Firns had involved a company, Carpenter Pacific Resources NL (‘Carpenter’), an Australian company listed on the Australian stock exchange (‘ASX’). Its main business at the material time was holding Tax, Private Wealth & Trusts Practice exploration licences in Papua New Guinea (‘PNG’) through wholly owned subsidiaries. One of Carpenter’s subsidiaries had been involved in litigation where it was challenging the validity of certain Court Of Appeal Delivers Judgment On The LTA- regulations in PNG which had the effect of reducing the value of its exploration licence. The subsidiary Komoco Motors Dispute had lost at first instance and the matter had gone on appeal to the Supreme Court of PNG. The appeal judgment which was handed down in open court upheld the appeal and declared the regulation Insider Trading And The Vexed Question invalid. Kruse, an employee of Carpenter, was present in the PNG courtroom where the judgment Of General Availability was handed down. Firns (whose father was an executive director of Carpenter) received news of the successful appeal from his father within half an hour of the judgment having been handed down. Courts And Arbitration - A Question Of Balance? Both Firns and Kruse purchased shares in Carpenter before the outcome of the appeal was disclosed Recent Developments In on ASX. Firns was convicted of insider trading whilst Kruse, who had been tried separately on the Singapore Law same facts, was acquitted. Firns appealed his conviction. The principal ground of appeal turned Disclosure Of on whether the information used by Firns was ‘generally available’ in the sense that it consisted of Confidential Information ‘readily observable matter’ at the time that he purchased the shares. At the heart of the appeal was By Professional the interpretation to be given to the expression ‘readily observable matter’. In The Pursuit Of Its Legitimate Interests • The Court opined that information may be readily observable even if no one in fact observed it. Public Private In particular, the Court held that the information embodied in the PNG Supreme Court judgment Partnership Projects was available, understandable and accessible to a significant group of the public, namely, those – The Process present in open court and hence, ‘readily observable’. Open Source In IT Contracts
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A Round-Up Of Latest Developments In The • After examining both the drafting and legislative history of the provision, the Court observed First Half Of 2008 that as indicated in the opening words of the second limb (our limb (b)), the generality of the Rajah & Tann LLP Hosts words in the ‘readily observable’ limb (our limb (a)) is not to be limited by the second limb (our 9th Lunchtime Seminar limb (b)). The Court noted that in the ‘readily observable’ limb, the legislature had deliberately Series held back from placing information under an embargo until the lapse of a fixed time or even a Tax, Private Wealth & reasonable time from some fixed point of actual disclosure. The ‘readily observable’ limb, the Trusts Practice Court held, was ‘inserted as an alternative in order not to penalise the efficient, the speedy or Court Of Appeal Delivers the diligent – at least to the degree encompassed by the opaque ‘readily observable matter’’. Judgment On The LTA- Komoco Motors Dispute • On the question of whether ready observability had to be from the stance of the hypothetical person ‘within Australia’, the Court noted that the statutory provision does not define the class Insider Trading And The Vexed Question of persons by whom the matter is to be ‘readily observable’ and that these persons cannot be Of General Availability confined to existing shareholders or even existing traders of shares on ASX. The Court stated that in any event, the latter class is a very wide one, since traders in Australian-listed shares are not Courts And Arbitration - A Question Of Balance? confined to Australians, no matter how the term ‘traders of shares on ASX’ is defined. Further, Recent Developments In the Court observed that whilst the protection of fair trading in the Australian sharemarket is the Singapore Law primary focus of the legislative scheme, a large proportion of investors in Australian corporations Disclosure Of are non-Australian; and a considerable proportion of the shares listed on the ASX are shares of Confidential Information foreign corporations. Referring to the framework of the regime, particularly the extraterritoriality By Professional provision in section 1002 of the Australian Corporations Law, the Court concluded that the In The Pursuit Of Its Legitimate Interests legislative scheme is not confined to protecting the interests of resident Australian investors or dealings in Australian shares. This, together with the recognition of modern telecommunication Public Private methods such as the telephone, the television, the internet (including email) and the fax, all of Partnership Projects – The Process which formed a part of how Australians, and particularly investors, perceived events, led the Court to conclude that it would not be correct to test ready observability from the stance of the Open Source In IT hypothetical person within Australia. Contracts
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A Round-Up Of Latest Developments In The The Decision In R v Rivkin First Half Of 2008 Three years later, an interesting scenario arose for consideration in the case of R v Rivkin [2004] Rajah & Tann LLP Hosts NSWCCA 7. 9th Lunchtime Seminar Series In the Rivkin case, Mr Rivkin had, in the course of a completely unrelated transaction, received Tax, Private Wealth & information from Mr McGowan (the executive chairperson of Impulse Airlines) that he was Trusts Practice trying to ‘merge‘ Impulse Airlines with Qantas and was awaiting approval from the Australian Court Of Appeal Delivers Competition and Consumer Commission for that deal. Within hours of that conversation, Mr Judgment On The LTA- Rivkin gave instructions to his brokers to purchase Qantas shares. At trial, Mr Rivkin’s counsel Komoco Motors Dispute contended that the information which Mr Rivkin possessed was generally available, due to the Insider Trading And The existence of rumours in the press about the possibility of deals being done between two of the Vexed Question then four airlines operating domestically, and rumours about the possible collapse of Impulse Of General Availability Airlines. However, the Prosecution was able to establish: (i) the absence of information in the media Courts And Arbitration - about the proposed ‘merger’ as described by Mr McGowan to Mr Rivkin; and (ii) evidence from A Question Of Balance? the stockbroking industry to show that that there were no rumours of such a proposal prior to its Recent Developments In Singapore Law announcement. As the Prosecution’s evidence was accepted, it was unnecessary and neither the trial judge nor the New South Wales Criminal Court of Appeal considered whether the existence Disclosure Of of rumours in the press about the proposed ‘merger’ resulted in the information being ‘generally Confidential Information By Professional available’. In The Pursuit Of Its Legitimate Interests Concluding Comments
Public Private If a case on the facts of Firns came before the Singapore Courts, or if by an extension to the Partnership Projects facts in Rivkin, rumours or other information of a material price sensitive nature are reported in – The Process the press in an overseas jurisdiction (particularly where such press reports are also accessible via Open Source In IT Contracts
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A Round-Up Of Latest Developments In The internet), would the Singapore Courts regard such information to be ‘generally available’? This First Half Of 2008 writer believes that there are good grounds for arguing that the approach taken by the majority Rajah & Tann LLP Hosts in the Firns case is a sound one that should be followed. Such an approach would not only be 9th Lunchtime Seminar consistent with the language of our legislation but would also support the underlying policy of the Series SFA which is premised on a recognition that capital markets have become increasingly sophisticated Tax, Private Wealth & and globalised as a result of technological advances. Trusts Practice Quite apart from the fact that section 215 of the SFA is in pari materia with the equivalent provision Court Of Appeal Delivers Judgment On The LTA- considered in Firns, investors and corporates raising funds in Singapore’s securities markets, like Komoco Motors Dispute those in Australia, are not merely domestic players but include international ones. Like the Australian regime, the Singapore insider trading regime is not confined to protecting the interests Insider Trading And The Vexed Question of Singapore based investors or dealings in shares of Singapore based corporates (see section 213 Of General Availability of the SFA). A parochial stance that general availability should be viewed only through the eyes of the hypothetical Singapore based investor is not only divorced from reality in the internet age but Courts And Arbitration - A Question Of Balance? also antithetical to the internationalisation of Singapore’s securities markets. Recent Developments In Singapore Law Significantly, Singapore has long recognised the changing financial landscape, as well as the role of technology and the internet in opening up new opportunities for investors and Singapore’s securities Disclosure Of Confidential Information markets. It was this very recognition that prompted the slew of changes which resulted in the SFA. By Professional As stated at the Second Reading of the Securities and Futures Bill 2001: In The Pursuit Of Its Legitimate Interests ‘Capital markets have become increasingly sophisticated, as a result of technological advances giving rise to competition and globalisation … Institutions no longer confine themselves to their domestic markets or their Public Private immediate hinterland, but reach out to pools of liquidity in other countries as well. The liberalization of the Partnership Projects capital markets and increased competition has catalysed these processes. – The Process
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A Round-Up Of Latest Developments In The This fluid and rapidly-evolving financial landscape poses new demands on regulators. It is important that we First Half Of 2008 create a sound and transparent legal framework within which players can operate….’
Rajah & Tann LLP Hosts DPM Lee Hsien Loong and Chairman, MAS (as he then was) 9th Lunchtime Seminar 5 October 2001 Series Although the dissenting view of Carruthers AJ in Firns would be more protective of Singapore based Tax, Private Wealth & investors, having regard to the international character of our securities markets and particularly Trusts Practice Singapore’s positioning as an international financial centre, the better argument is that in this Court Of Appeal Delivers technological age, general availability should be viewed through the eyes of investors, both within Judgment On The LTA- and outside Singapore. Komoco Motors Dispute
Insider Trading And The Vexed Question Of General Availability
Courts And Arbitration - A Question Of Balance? Recent Developments In Singapore Law For more information, contact:
Disclosure Of Aurill Kam Confidential Information Partner, Commercial Litigation Practice Group By Professional DID: 6232 0733 In The Pursuit Of Its [email protected] Legitimate Interests
Public Private Aurill Kam is a Partner in the Firm’s Commercial Litigation Practice Group. Aurill rejoined the Firm in August 2007 after spending five years at Partnership Projects the Monetary Authority of Singapore (‘MAS’). Of her five years at the MAS, three and a half years were spent as Head & Director of Enforcement – The Process where she helped to establish MAS’ then newly introduced civil penalty enforcement regime for market misconduct contraventions. During that time, she was also involved in handling numerous high profile corporate misfeasance, insider trading, manipulation and other market Open Source In IT misconduct enforcement cases. Contracts
46 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The First Half Of 2008 Courts And Arbitration - A Question Of Balance?
Rajah & Tann LLP Hosts 9th Lunchtime Seminar Recent Developments In Singapore Law Series
Tax, Private Wealth & Parties to international contracts do not relish suing or being sued in a foreign country. Differences Trusts Practice in the law, language, and legal and business culture could present decisive disadvantages. To them, arbitration has the advantages of a relatively inexpensive, speedy and more private alternative Court Of Appeal Delivers Judgment On The LTA- dispute resolution process in a neutral locale, with proceedings conducted according to familiar Komoco Motors Dispute and well established arbitration law. Arbitration also offers disputing parties the opportunity to select the arbitrators, who being experts in the field, will be able to swiftly understand the issues Insider Trading And The Vexed Question in an arbitration. Of General Availability These benefits have led more foreign companies in Asia to include arbitration clauses in their Courts And Arbitration - contracts. As such, arbitration now has a greater level of acceptance and greater enforceability A Question Of Balance? Recent Developments In across the Asian region than ever before. Not surprisingly, there has been an increase in the Singapore Law number of Asian arbitration centres and in the adoption of up to date arbitration laws by Asian countries. Disclosure Of Confidential Information While arbitration is the preferred mode of dispute resolution, the precise role of the courts By Professional In The Pursuit Of Its in arbitration matters is important. The courts must strike an appropriate balance between Legitimate Interests competing and complementary factors for and against judicial intervention. The relevant core
Public Private values of arbitration include party autonomy, finality, fairness and justice and enforceability. The Partnership Projects Singapore court’s answer to balancing these competing interests is to adopt a policy of minimal – The Process intervention. In Soh Beng Tee v Fairmount Development Pte Ltd [2007] 3 SLR 86, (‘Soh Beng Open Source In IT Contracts
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A Round-Up Of Latest Developments In The Tee’), VK Rajah JA, delivering the judgment of the Court of Appeal, explained that the court’s First Half Of 2008 policy of minimal intervention was underpinned by two principal considerations, namely, the Rajah & Tann LLP Hosts need to recognise the autonomy of the arbitral process by encouraging finality as well as the 9th Lunchtime Seminar need to uphold the choice of the chosen dispute method. He added that the parties, having Series opted for arbitration, must be taken to have acknowledged and accepted the attendant risks of Tax, Private Wealth & having only a very limited right of recourse to the courts and it would be neither appropriate nor Trusts Practice consonant for a dissatisfied party to seek the assistance of the court to intervene on the basis Court Of Appeal Delivers that the court is discharging an appellate function, save in the very limited circumstances that Judgment On The LTA- have been statutorily condoned. Komoco Motors Dispute This policy of minimal judicial interference will be evident with an examination of five recent cases Insider Trading And The Vexed Question of the Singapore courts. Of General Availability Pre-Award Orders Courts And Arbitration - A Question Of Balance? The court’s approach on granting pre-award orders to the parties to a contract with an arbitration Recent Developments In clause will first be considered. Singapore Law In NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] SGCA 8, (‘NCC’) the Court Disclosure Of Confidential Information of Appeal pointed out that while a court has concurrent jurisdiction to order interim measures, By Professional ‘the court will nevertheless scrupulously avoid usurping the functions of the arbitral tribunal in In The Pursuit Of Its exercising such jurisdiction and will only order interim relief where this will aid, promote and Legitimate Interests support arbitration proceedings’. It added that whether the court’s jurisdiction is exercised under Public Private the Arbitration Act or the International Arbitration Act (‘IAA’), the principle of limited and cautious Partnership Projects curial assistance applies. – The Process
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48 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The In Swift-Fortune Ltd v Magnifica Marine SA [2007] 1 SLR 629, the novel question of whether First Half Of 2008 the Singapore courts have jurisdiction to grant interim relief in aid of international arbitration Rajah & Tann LLP Hosts proceedings was considered by the Court of Appeal. Swift Fortune, a Liberian company, contracted 9th Lunchtime Seminar to purchase a vessel from Magnifica, a Panamanian company. The contract was governed by Series English law and provided for arbitration in London. A delayed delivery of the vessel resulted in Tax, Private Wealth & Swift Fortune claiming damages for substantial losses amounting to US$ 2.5 million. Swift Fortune Trusts Practice applied for a Mareva Injunction to restrain Magnifica from disposing of its assets in Singapore of Court Of Appeal Delivers up to US$ 2.5 million. Judgment On The LTA- Komoco Motors Dispute The case turned on the interpretation of clause 12(7) of the IAA, which empowered the High Court to assist international arbitrations. The question was whether this power extended to arbitrations Insider Trading And The Vexed Question which did not stipulate Singapore as the seat of arbitration (‘foreign arbitrations’) or was it limited to Of General Availability arbitrations stipulating Singapore as the seat of arbitration (‘Singapore international arbitrations’). The Court of Appeal declined comment on the policy implications behind either interpretation, Courts And Arbitration - A Question Of Balance? choosing instead to embark on an exercise of statutory interpretation of the IAA. It decided that Recent Developments In the legislative intent behind the IAA was to promote arbitration in Singapore, thereby implying a Singapore Law territorial limitation on curial powers to grant interim relief. Disclosure Of Confidential Information In NCC, the fact that parties had not instituted arbitration proceedings was taken into account for By Professional denying interim relief from the courts. In this case, NCC contracted to buy ready mixed concrete In The Pursuit Of Its from Alliance. Indonesia halted the sale of sand, essential to making ready mixed concrete, to Legitimate Interests Singapore. Alliance stopped supplying concrete to NCC pending renegotiation on the price of Public Private concrete. NCC, without having served a notice to arbitrate, applied for an interlocutory injunction Partnership Projects to compel Alliance to deliver concrete at the contract price. In line with the policy of minimal – The Process
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49 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The judicial interference, the court would intervene only sparingly and in very narrow circumstances. First Half Of 2008 In refusing to order the injunction, the Court of Appeal noted that there was no pressing need for Rajah & Tann LLP Hosts interlocutory measures. NCC had not even commenced arbitration proceedings and it could be 9th Lunchtime Seminar inferred from this that it would not suffer inordinate prejudice by waiting for the arbitral tribunal Series to make a determination. In truth, NCC was using the court process for a collateral purpose for Tax, Private Wealth & if the injunction was granted, the court would effectively be ordering specific performance of the Trusts Practice contract and arbitration would have been unnecessary. Court Of Appeal Delivers Judgment On The LTA- Public Policy Komoco Motors Dispute It is evident from PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR 567 (‘PT Insider Trading And The Asuransi’), that any party to an international arbitration who seeks to set aside an award on the Vexed Question ground of breach of Singapore’s public policy faces an uphill task. In that case, the Court of Appeal Of General Availability stated that the general consensus of judicial and expert opinion is that public policy under the IAA Courts And Arbitration - encompasses a narrow scope and should only operate in instances where the upholding of an A Question Of Balance? arbitral award would ‘shock the conscience’, be ‘clearly injurious to the public good’ or ‘violate the Recent Developments In Singapore Law forum’s most basic notion of morality or justice’.
Disclosure Of In PT Asuransi, an Indonesian entity, PTA, guaranteed a series of notes (‘BI notes’). Dexia held Confidential Information some of the notes which remained unpaid when they matured in 1999. In February 2000, By Professional In The Pursuit Of Its a noteholders’ meeting purportedly approved a debt restructuring scheme. Dexia remained Legitimate Interests opposed to this scheme and commenced arbitration against PTA in March 2000. In June 2001, the resolutions of the noteholders’ meeting were ratified but the tribunal was not made aware Public Private Partnership Projects of this till later. The first tribunal found that PTA was obliged to pay the BI notes as this – The Process obligation was not restructured pursuant to the February 2000 meeting. PTA then commenced
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50 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The a second arbitration to declare that the June 2000 restructuring scheme was valid and binding First Half Of 2008 on all BI holders, including Dexia. The second tribunal ruled that it had no jurisdiction on Rajah & Tann LLP Hosts grounds that were erroneous and inconsistent with the first tribunal’s findings. PTA contended 9th Lunchtime Seminar that the second tribunal’s findings should be set aside on the ground of public policy as they Series were illegal. Although the Court of Appeal dismissed PTA’s appeal on the ground there had Tax, Private Wealth & been no ‘award’ since the second tribunal did not decide the substance of the claim, the views Trusts Practice of the Court on public policy merit attention. The Court first accepted that as the legislative Court Of Appeal Delivers policy under the IAA is to minimise curial intervention in international arbitrations, errors of Judgment On The LTA- fact and law made in an arbitral decision are final and binding on the parties except in the Komoco Motors Dispute situations prescribed under section 24 of the IAA. The IAA will be internally inconsistent if Insider Trading And The the public policy provision is construed to enlarge the scope of curial intervention to set aside Vexed Question errors of law or fact that are not outside the scope of the arbitration. As such, errors of law Of General Availability or fact per se do not engage the public policy of Singapore when they cannot be set aside for Courts And Arbitration - the reasons stated in the IAA. A Question Of Balance? Recent Developments In The above case was followed in VV v VW [2008] SGHC 11 (‘VV’) where the question was whether Singapore Law the courts should, in the interest of public policy, act where costs awarded by the arbitrator are Disclosure Of allegedly excessive. Here, costs of S$2.8 million had been awarded in a case where the claim was Confidential Information only for S$927,000. The plaintiffs, who had failed in their claim, contended, inter alia, that the By Professional cost awarded in this case was in conflict with public policy in that it offends against the principle of In The Pursuit Of Its Legitimate Interests proportionality. As far as public policy and proportionality were concerned, the trial judge held that there is no public interest involved in the legal costs of parties in one-off and private litigation and it Public Private is not part of the public policy of Singapore to ensure that costs incurred by parties to arbitration are Partnership Projects – The Process assessed on the basis of any particular principle. The parties to the arbitration had contracted for
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51 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The disputes to be settled in that particular manner and the costs awarded to a successful party cannot First Half Of 2008 be considered injurious to the public good or shocking to the conscience, however unreasonable Rajah & Tann LLP Hosts such an award may prove to be upon examination. 9th Lunchtime Seminar Series It cannot be overlooked that one of the main advantages of arbitration is that it is mere cost- efficient than litigation. If costs are not controlled by the courts or by any other body, there is a risk Tax, Private Wealth & Trusts Practice that arbitration may in some cases end up a more expensive experience for the parties. If so, this may undermine the raison d’etre of arbitration. Court Of Appeal Delivers Judgment On The LTA- Komoco Motors Dispute Breach Of Natural Justice
Insider Trading And The As for judicial intervention for breach of natural justice rules, Prakash J in VV stated at [52] that Vexed Question natural justice ‘does not mean that every conclusion that an arbitrator intends to make be put Of General Availability before the parties’. In Soh Beng Tee, the Court of Appeal pointed out that applying uncritically Courts And Arbitration - rules developed for High Court actions confuses and irritates the commercial community without A Question Of Balance? improving the quality of arbitral justice. Recent Developments In Singapore Law In Soh Beng Tee, Fairmount, a property developer, engaged SBT as its main contractor. SBT applied for and was given an extension of time of five days. Fairmount terminated the contract after the Disclosure Of Confidential Information expiry of the extended deadline. The arbitrator found that Fairmount had hindered SBT’s ability By Professional to perform the contract timeously and as the time for completion was at large, SBT was given a In The Pursuit Of Its reasonable time to complete the project. Fairmount argued that whether time was at large was not Legitimate Interests an issue before the arbitrator and that rules of natural justice had been breached as it was deprived Public Private of putting forward a case against setting time at large. Partnership Projects – The Process
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52 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The For a start, the Court stated that for the integrity of the arbitral process and compliance with rules First Half Of 2008 of natural justice, the narrow scope expressly acknowledged under both the Arbitration Act and Rajah & Tann LLP Hosts the IAA must be adhered to. Thus, the Court may only intervene where there was a ‘real basis for 9th Lunchtime Seminar alleging that the arbitrator has conducted the arbitral process either irrationally or capriciously’. Series VK Rajah JA noted that the court’s function is not to comb though the arbitral award assiduously Tax, Private Wealth & to find any fault with the arbitral process. Rather, an award should be read generously such that Trusts Practice only meaningful breaches of rules of natural justice resulting in prejudice are remedied. Here, all Court Of Appeal Delivers the facts relating to the award were fully alive throughout the proceedings. As such, there was no Judgment On The LTA- breach of the rules of natural justice. Komoco Motors Dispute The above case was followed in VV, which has been discussed above. In this case, the senior counsel Insider Trading And The Vexed Question claimed S$25,000 per day as costs and the plaintiff submitted that the arbitrator’s acceptance of Of General Availability the fact that such fees may be charged by leading counsel in international arbitrations without any evidence of these fees being provided, nor any opportunity given to the plaintiffs to test that Courts And Arbitration - A Question Of Balance? evidence, was a breach of natural justice rules. However, Judith Prakash J ruled that the arbitrator’s Recent Developments In views on costs were clearly before the parties, who had every opportunity to address him on this Singapore Law issue. Thus, the plaintiff’s allegation that there had been a breach of natural justice could not be Disclosure Of countenanced. Confidential Information By Professional Conclusion In The Pursuit Of Its Legitimate Interests Ensuring the right amount of judicial intervention has not always been easy. In preserving the defining aspects of arbitration, including party autonomy and finality, it is arguable that values Public Private Partnership Projects such as fairness and justice may suffer a concomitant circumscription, and especially so since high – The Process thresholds need to be crossed before the principles of public policy and natural justice may be engaged. Open Source In IT Contracts
53 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The In the final analysis, if party autonomy and finality are to be safeguarded, minimum intervention First Half Of 2008 by Singapore courts is unavoidable if the goal of promoting Singapore as a centre of international Rajah & Tann LLP Hosts arbitration is to be realised. As the Court of Appeal put it in Soh Beng Tee, ‘aggressive judicial 9th Lunchtime Seminar intervention can only result in the prolonging of the arbitral process and encourage myriad Series unmeritorious challenges to arbitral award by dissatisfied parties’ and that if left unchecked, Tax, Private Wealth & an interventionist approach can lead to indeterminate challenges and delays as well as cause Trusts Practice indeterminate costs to be incurred. Court Of Appeal Delivers Judgment On The LTA- Komoco Motors Dispute
Insider Trading And The Vexed Question Of General Availability
Courts And Arbitration - A Question Of Balance? For more information, contact: Recent Developments In Singapore Law Chong Yee Leong Martin Tan Head, International Arbitration Senior Legal Executive, International Arbitration Disclosure Of Practice Group Practice Group Confidential Information DID: 6507 9552 DID: 6507 9554 By Professional [email protected] [email protected] In The Pursuit Of Its Legitimate Interests Chong Yee Leong has extensive experience in international arbitration and litigation covering all aspects of commercial, energy and building Public Private disputes, with a focus on disputes arising from heavy civil engineering contracts, power, oil and gas, marine engineering, and land transportation projects as well as professional negligence. Yee Leong was a partner at an international law firm from 2003 to 2007 and headed the International Partnership Projects Litigation and Arbitration Group in Singapore before rejoining Rajah & Tann LLP in April 2007. – The Process Martin Tan is a Senior Legal Executive with the International Arbitration Practice Group. Prior to joining Rajah & Tann LLP, he was a staff Open Source In IT attorney with an international law firm. Contracts
54 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The First Half Of 2008 Disclosure Of Confidential Information By Professional
Rajah & Tann LLP Hosts 9th Lunchtime Seminar In The Pursuit Of Its Legitimate Interests Series
Tax, Private Wealth & To what extent may a professional, in the pursuit of its legitimate interests, divulge confidential Trusts Practice information on work it had done for a former client? The Hong Kong Court of Final Appeal addressed this very question in the recent decision of Nam Tai Electronics Inc v PricewaterhouseCoopers Court Of Appeal Delivers Judgment On The LTA- (unreported, 31 January 2008). The case involves a factual scenario that would not be unfamiliar Komoco Motors Dispute to accounting firms and other professional advisers. Insider Trading And The The Facts Vexed Question Of General Availability Nam Tai Electronics Inc (‘Nam Tai’) engaged PricewaterhouseCoopers (‘PWC’) to act in a due Courts And Arbitration - diligence exercise for the acquisition of a company. After conducting due diligence, PWC advised A Question Of Balance? Nam Tai against proceeding with the acquisition of the company (‘negative recommendation’). Recent Developments In Nam Tai nevertheless decided to acquire the company. Later, the company went into liquidation Singapore Law and PWC sought appointment as its liquidators. Disclosure Of Confidential Information By that time, the relationship between Nam Tai and PWC had soured and Nam Tai, as one of By Professional the company’s creditors, objected to PWC’s appointment as liquidators of the company. Nam In The Pursuit Of Its Legitimate Interests Tai contended that PWC would be placed in a position of a ‘conflict of interest’ because of its prior involvement in the due diligence review. Nam Tai, however, did not explain the basis for its Public Private contention. Partnership Projects – The Process
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55 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The In the face of Nam Tai’s objection and conscious of the keen competition for the job from First Half Of 2008 other big accounting firms, PWC launched a vigorous campaign aimed at convincing the Rajah & Tann LLP Hosts company’s creditors that PWC should be appointed. To this end, PWC disclosed the negative 9th Lunchtime Seminar recommendation to the company’s creditors to counter Nam Tai’s opaque contention that a Series conflict situation would arise. Tax, Private Wealth & Trusts Practice It was public knowledge that PWC had acted for Nam Tai in the due diligence exercise. The fact that PWC made the negative recommendation, however, was not in the public domain before Court Of Appeal Delivers Judgment On The LTA- PWC disclosed it to the company’s creditors. Nam Tai sued PWC for breach of confidence. In the Komoco Motors Dispute proceedings, PWC did not dispute that the negative recommendation was confidential. PWC, nevertheless, contended that the disclosure was justified as a defensive response to Nam Tai’s Insider Trading And The Vexed Question objection to its appointment as liquidator. Of General Availability The Decision Courts And Arbitration - A Question Of Balance? The Court of Final Appeal (‘Court’) allowed Nam Tai’s claim and ordered PWC to pay Nam Tai Recent Developments In damages of HK$100. Singapore Law In arriving at its decision, the Court applied the principle espoused by the High Court of Disclosure Of Confidential Information Australia in Esso Australia Resources Ltd v Plowman (1994) 183 CLR 10 at 36 that an obligation By Professional of confidentiality carries with it an implied right for either party to disseminate the otherwise In The Pursuit Of Its confidential material where ‘disclosure of the material is fairly required for the protection of the Legitimate Interests party’s legitimate interest’. Public Private Partnership Projects – The Process
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56 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The On the facts, the Court found that PWC’s efforts in securing appointment as liquidators of First Half Of 2008 the company were undertaken as part of the firm’s ordinary professional activities, and were, Rajah & Tann LLP Hosts therefore, in pursuit of its legitimate interests. The disclosure of the negative recommendation 9th Lunchtime Seminar would form part of those efforts and were thus made in furtherance of PWC’s legitimate Series interests. Tax, Private Wealth & Trusts Practice The Court, nevertheless, decided that the disclosure was not ‘fairly required’ as a defensive response to Nam Tai’s objection to PWC’s appointment. The Court reasoned that Nam Tai’s unexplained and Court Of Appeal Delivers Judgment On The LTA- opaque contention that PWC would be in a position of conflict was capable of bearing different Komoco Motors Dispute meanings: while it could concern whether PWC had recommended Nam Tai’s acquisition of the company, it was not invariably the case. Thus, PWC’s disclosure of the negative recommendation Insider Trading And The Vexed Question could not be regarded as being a proper or necessary response to Nam Tai’s allegation of conflict. Of General Availability For this reason, the Court held that PWC’s disclosure of the negative recommendation was unjustified. Courts And Arbitration - A Question Of Balance? The Court further held that, under such circumstances, PWC should have first considered other Recent Developments In Singapore Law options such as demanding clarification or taking other steps to challenge the adverse allegation without disclosing the subject confidential information. Disclosure Of Confidential Information By Professional Critique In The Pursuit Of Its It is questionable whether a demand for clarification as suggested by the Court would serve any Legitimate Interests practical purpose within the context of PWC’s campaign to garner support for its appointment Public Private as liquidators. After all, Nam Tai could simply have ignored PWC’s demand. There was no way by Partnership Projects – The Process
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57 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The which PWC could have compelled Nam Tai to particularise its contention. In fact, Nam Tai could First Half Of 2008 assert that by particularising its charge it would have to disclose some of the very confidential Rajah & Tann LLP Hosts information, the spread of which it was seeking to suppress. In such a situation, it is doubtful 9th Lunchtime Seminar that PWC can justify its disclosure of the negative recommendation on the basis of Nam Tai’s Series rejection of PWC’s demand that Nam Tai explains its allegation of conflict. Tax, Private Wealth & Trusts Practice Thus, we come back to the question whether PWC’s disclosure was ‘fairly required’ as a defensive response to Nam Tai’s objection. In this regard, it would seem that the Court of Final Appeal in Nam Court Of Appeal Delivers Judgment On The LTA- Tai might have given the phrase ‘fairly required’ an unduly restrictive meaning when it insisted that Komoco Motors Dispute it is insufficient for PWC to show that its disclosure represented a defensive response to one of the several possible contentions underlying Nam Tai’s opaque objection. Insider Trading And The Vexed Question It is submitted that in calibrating whether disclosure is ‘fairly required’, a court should balance the Of General Availability legitimate interest of the party seeking to suppress the confidential information against that of Courts And Arbitration - the party seeking to disclose the same. Such an approach finds support in the English High Court A Question Of Balance? decision in Webster v James Chapman & Co [1989] 3 All ER 939 at 945. The Court does not appear Recent Developments In Singapore Law to have considered this in the instant case.
Disclosure Of Thus, if Nam Tai’s interest in suppressing disclosure of the negative recommendation is merely Confidential Information nominal (as the damages of HK$100 ordered would suggest), the threshold for PWC to disclose By Professional In The Pursuit Of Its the negative recommendation should accordingly be lower. If so, it is submitted that PWC should Legitimate Interests have been permitted to disclose the negative recommendation given that it represented a defensive response to at least one of the several possible contentions underlying Nam Tai’s opaque allegation Public Private Partnership Projects of conflict. – The Process
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A Round-Up Of Latest Developments In The Conclusion First Half Of 2008 It remains to be seen whether the Singapore courts would adopt the restrictive approach of the Rajah & Tann LLP Hosts 9th Lunchtime Seminar Hong Kong Court of Final Appeal in Nam Tai. Until such time the Singapore courts pronounce Series on this issue, it would be prudent for accounting firms and other professional advisers to take a conservative approach when deciding whether disclosure of confidential information is ‘fairly Tax, Private Wealth & Trusts Practice required’ in the pursuit of their legitimate interests.
Court Of Appeal Delivers Judgment On The LTA- Komoco Motors Dispute
Insider Trading And The Vexed Question Of General Availability
Courts And Arbitration - A Question Of Balance? Recent Developments In Singapore Law
Disclosure Of For more information, contact: Confidential Information By Professional Kelvin Poon In The Pursuit Of Its Partner, Business Finance & Insolvency Practice Group Legitimate Interests DID: 6232 0403 Public Private [email protected] Partnership Projects – The Process Kelvin Poon is a Partner in the Firm’s Business Finance & Insolvency Practice Group. Kelvin’s areas of practice are commercial litigation, trust, Open Source In IT insolvency and restructuring. Contracts
59 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The First Half Of 2008 Public Private Partnership Projects – The Process
Rajah & Tann LLP Hosts 9th Lunchtime Seminar In recent years, Public Private Partnership Projects (‘PPP’) have been introduced in Singapore as a Series method for the delivery of infrastructure. Tax, Private Wealth & Trusts Practice Whilst the PPP style of project delivery is still relatively new in Singapore, it has been utilised over a number of years in Australia and elsewhere. In this article, we summarise the processes Court Of Appeal Delivers involved in bidding for these kinds of projects. This article particularly considers in general Judgment On The LTA- Komoco Motors Dispute terms the implementation for PPP transactions from the public sector perspective based on recent experience in Australia, and draws comparisons to the processes now being adopted in Insider Trading And The Singapore. Vexed Question Of General Availability PPP Style Projects Courts And Arbitration - A Question Of Balance? The term ‘Public Private Partnership’ was developed in the United Kingdom. Forms of project Recent Developments In delivery involving the private sector have been used extensively there and in Australia since the Singapore Law early 1990s in a range of civil infrastructure projects such as road and water treatment plants, and Disclosure Of more recently in social infrastructure projects such as courts, prisons, schools and hospitals. This Confidential Information model is extensively used and is now regarded as a common method of project delivery for major By Professional government projects. In The Pursuit Of Its Legitimate Interests In Singapore, the Government has indicated that it will only apply the PPP model to large value Public Private projects (ie projects with a value in excess of S$50 million) in sectors where there have been Partnership Projects successful PPP examples in other countries, for example Australia or the UK. The categories of – The Process
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60 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The projects expressly referred to by the Singapore Ministry of Finance in its Public Private Partnerships First Half Of 2008 Handbook are sports facilities, incineration plants, water and sewerage treatment works, major Rajah & Tann LLP Hosts IT infrastructure projects, education facilities including student accommodation, hospitals and 9th Lunchtime Seminar polyclinics, expressways and government office buildings. Series The term ‘Public Private Partnership’ describes the contract pattern for project delivery or Tax, Private Wealth & Trusts Practice procurement methodology used by the project sponsor. The project sponsor under the PPP model is usually the Government or other public sector entity. Under the PPP model, the project sponsor Court Of Appeal Delivers Judgment On The LTA- engages a private sector entity to design, construct, operate and maintain an infrastructure asset. Komoco Motors Dispute The operations period is usually over a long term, often between 25 to 30 years. In most PPP style projects, the site for the project is selected by the Government and payment for the services Insider Trading And The Vexed Question provided by the private sector is based on availability charges which are usually benchmarked Of General Availability against market indices.
Courts And Arbitration - The facility constructed utilising this model usually reverts to government ownership at no cost at A Question Of Balance? the end of the concession term. In most instances, the private sector entity is a special purpose Recent Developments In Singapore Law vehicle incorporated for the particular delivery of the project. In turn, sub-contractors carry out most of the services on behalf of the special purpose vehicle, under design and construct contracts Disclosure Of Confidential Information and operation and maintenance agreements. In projects known as ‘social’ infrastructure, for By Professional example educational services, the state or government entity often retains certain operations In The Pursuit Of Its functions within the facilities for the concession period. Legitimate Interests The term ‘Public Private Partnership’ has been described by the Ministry of Finance in Singapore Public Private Partnership Projects as a ‘long term partnership between the public and private sector to deliver services’. In Singapore – The Process
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61 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The to date, this kind of model has been utilised for a number of projects including a desalination First Half Of 2008 plant, a water treatment plant, an incinerator plant, and more recently for the Singapore Sports Rajah & Tann LLP Hosts Hub project. In addition, this model is currently under consideration for a secondary school 9th Lunchtime Seminar project in Singapore. That said, there is still relatively little experience in Singapore of these types Series of projects and it is expected that this model will be adopted for more projects in the future. Tax, Private Wealth & Trusts Practice These types of projects are complex and often involve a range of participants including the Government, special purpose vehicles, financiers, constructors, operation and maintenance Court Of Appeal Delivers Judgment On The LTA- contractors together with other participants such as equity investors and debt financiers. The Komoco Motors Dispute project procurement methodology is quite detailed and has specific steps and requirements. It also requires a number of contracts to be entered into which need to be carefully drafted and Insider Trading And The Vexed Question interrelated. Of General Availability An Outline Of The Procurement Process For PPP Projects Courts And Arbitration - A Question Of Balance? The typical procurement processes for PPP projects in Australia and Singapore are very similar and Recent Developments In generally involve several phases. These phases or stages are discussed below. Singapore Law
Disclosure Of Expression Of Interest (‘EOI’) Phase Confidential Information The Government entity usually requests private sector participants to provide an expression of By Professional In The Pursuit Of Its interest in a particular project. The expression of interest usually includes details of the identify of Legitimate Interests the consortium members, relevant expertise, proposed funding structure and comments regarding the risk profile which may have been outlined by the Government entity either in a term sheet or Public Private Partnership Projects draft project deed documents. – The Process
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A Round-Up Of Latest Developments In The It is important for private sector participants to approach the provision of expression of interest First Half Of 2008 carefully so as to ensure shortlisting. This will usually require a detailed assessment of the risks Rajah & Tann LLP Hosts outlined by the Government entity to be absorbed by the private sector. 9th Lunchtime Seminar Series In Singapore, even prior to the issue of the EOI documents a ‘pre-procurement’ briefing is often held, the purpose of which is to inform the industry of the project and obtain ‘market sounding’ Tax, Private Wealth & Trusts Practice or reaction to the Government’s proposed approach. In this way the reactions of the private sector can be taken into account in drafting the EOI documents. Court Of Appeal Delivers Judgment On The LTA- Shortlist Phase Komoco Motors Dispute The Government entity generally assesses the expressions of interest received and cuts the bidding Insider Trading And The Vexed Question consortia down to a shortlist. Quite often the shortlist contains three to four consortia. At this Of General Availability stage, shortlisted consortia are often required to enter into probity and process deeds which set out probity and confidentiality requirements surrounding the process for the project and their Courts And Arbitration - A Question Of Balance? obligations in participating in the further tender. Recent Developments In Singapore Law Usually the Government will need to engage experts to assist in the evaluation of expressions of interest. Disclosure Of Confidential Information By Professional Request For Proposal (‘RFP’) Stage In The Pursuit Of Its In Singapore, this phase is often referred to as the Invitation to Tender (‘ITT’) phase. After shortlisting, Legitimate Interests the Government entity will generally provide the shortlisted consortia with the RFP or request for Public Private proposal documents which set out the Government entity’s full requirements for the project. These Partnership Projects documents often include technical design and operational requirements as well as evaluation – The Process
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63 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The criteria and the fully drafted project agreement setting out the detailed risk allocation between the First Half Of 2008 parties for the project. In Singapore, the ITT must comply with guidelines set out by the Ministry Rajah & Tann LLP Hosts of Finance. 9th Lunchtime Seminar Series The RFP or ITT stage is usually quite lengthy, having regard to the amount of information which is required to be put forward by the private sector consortia. This stage can often take place over a Tax, Private Wealth & Trusts Practice period of four to six months or longer. The consortia are usually expected to submit fully detailed proposals including detailed responses to the project agreement. Court Of Appeal Delivers Judgment On The LTA- In recent experience in relation to the Singapore Sports Hub project, this phase commenced in July Komoco Motors Dispute 2006 when ITT documents were sent to three prequalified consortia, and extended to December Insider Trading And The 2007 when the successful consortium was announced, a period of just under 18 months. Vexed Question Of General Availability Clarification Sessions And Meetings Courts And Arbitration - In Australia, during the assessment process, the government sector will often engage in meetings A Question Of Balance? Recent Developments In with bidding consortia to clarify requirements and to endeavour to minimise inconsistent Singapore Law interpretation of the RFP among consortia.
Disclosure Of In Singapore, this phase is known as the ‘Market Feedback Period’, and it occurs prior to the Confidential Information By Professional close of the RFP or ITT period. The Ministry of Finance has stated that the purposes of the Market In The Pursuit Of Its Feedback process is to enable the prequalified bidders to seek clarification on certain issues, raise Legitimate Interests suggestions with the government entity, request any changes to the tender process to assist with Public Private bankability, and for the public agency to revise the tender conditions and specifications where Partnership Projects necessary. – The Process
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64 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The Selection Of Preferred Bidder First Half Of 2008 In both Australia and Singapore, detailed requirements exist in relation to the evaluation of Rajah & Tann LLP Hosts tenders. After assessment of the RFPs, the Government will select the preferred bidder and 9th Lunchtime Seminar Series publish or nominate the identity of the preferred bidder. Quite often the preferred bidder is negotiated with whilst other bidders are required to keep their bid open in the event that Tax, Private Wealth & the preferred bidder collapses. The Government entity enters into final negotiations with the Trusts Practice preferred bidder and all project documents are executed at the conclusion of this process. In Court Of Appeal Delivers many cases the project agreements are subject to a condition precedent being the achievement Judgment On The LTA- Komoco Motors Dispute of ‘financial close’. Financial close occurs when all preconditions to any funding for the project has been satisfied. Insider Trading And The Vexed Question The procedures that have been outlined above can often be quite lengthy. As such, it is not Of General Availability uncommon for 12 months to two years (or longer) to be taken up in the process between the initial Courts And Arbitration - expression of interest stage and financial close. In addition, it seems that in Singapore the possibility A Question Of Balance? for extended delays to occur in the process is even greater due to the additional formalised ‘Market Recent Developments In Singapore Law Feedback Period’, together with the stated possibility of late amendments to the requirements of the project. Again, using the Singapore Sports Hub project as an example, the whole period from Disclosure Of prequalification or expression of interest to financial close was just over two years. Confidential Information By Professional Design And Construction Phase In The Pursuit Of Its Legitimate Interests Once the project documents have been entered into between the public sector and the private Public Private sector special purpose vehicle or entity, that entity will usually enter into a design and construction Partnership Projects contract with its builder who will then design and construct the facility in accordance with – The Process
Open Source In IT Contracts
65 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The construction documents. These documents will usually contain detailed requirements for the design First Half Of 2008 and construction of the facility, as well as testing and commissioning requirements. Rajah & Tann LLP Hosts 9th Lunchtime Seminar Operation And Maintenance Phase Series After completion of construction, the facility will be handed to the operator to be operated and Tax, Private Wealth & maintained in accordance with the terms of the operation and maintenance agreement. In social Trusts Practice infrastructure projects, it is usually provided that the public and private sectors operate and maintain Court Of Appeal Delivers the facility ‘in partnership’ over the project. Judgment On The LTA- Komoco Motors Dispute At the end of the term, the facility is handed back to the government entity, usually after a transition procedure whereby inspections of the facility are undertaken to ensure that it is in appropriate Insider Trading And The Vexed Question condition prior to handover. Of General Availability Key Issues - Project Agreements Courts And Arbitration - A Question Of Balance? In Australia, a number of governments has issued guidelines concerning the procedures to be Recent Developments In undertaken in relation to the procurement of PPP projects, together with standard commercial Singapore Law principles to be adopted in project agreements between government entities and the private sector. Disclosure Of For example, the Victorian government has issued its partnership Victoria Standard Commercial Confidential Information Principles (June 2005). This document summarises the Victorian government’s position in relation By Professional In The Pursuit Of Its to risks which arise to be dealt with PPP projects. Partnerships Victoria has indicated that the Legitimate Interests purpose of the standard commercial principles is to enable the parties to obtain some consistency and market certainty in documentation going forward for PPP projects. Other Australian states Public Private Partnership Projects have published similar guidelines. – The Process
Open Source In IT Contracts
66 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The In Singapore, no standardised commercial principles or documents have been developed or First Half Of 2008 published but it may be expected that going forward, as the PPP market develops, such standardised Rajah & Tann LLP Hosts principles may be developed and published. 9th Lunchtime Seminar Series Some key issues which commonly arise and which could be dealt with as part of such a standardised package in Singapore include the following: Tax, Private Wealth & Trusts Practice • Which services constitute ‘core’ services? Court Of Appeal Delivers Judgment On The LTA- This issue relates to the parties identifying and agreeing which are the ‘core’ services which Komoco Motors Dispute should not be delivered by the private sector, and retained by the Government. For example, Insider Trading And The the services carried out by doctors within a hospital, teachers within a school or judges in a Vexed Question court are widely regarded as ‘core’ services which it is the function of the Government to Of General Availability provide. Courts And Arbitration - A Question Of Balance? In addition it is widely recognised that there are certain ongoing non-delegable duties of the Recent Developments In government which cannot be transferred to third parties. Singapore Law It is important that the private sector has a clear understanding of the ongoing government Disclosure Of participation in the project from the outset. Confidential Information By Professional In The Pursuit Of Its • What constitutes ‘value for money’? Legitimate Interests In Australia, a full cost / benefit analysis is usually carried out to determine whether a project Public Private should be undertaken adopting a PPP style delivery process. A similar process is undertaken in Partnership Projects – The Process Singapore by the Government prior to the issue of expression of interest or prequalification documents. Open Source In IT Contracts
67 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The In Australia, private sector bids are assessed against transparent public sector benchmarks to First Half Of 2008 determine value for money utilising a ‘Private Sector Comparator’. Rajah & Tann LLP Hosts 9th Lunchtime Seminar Value for money is assessed by endeavouring to allocate risk appropriately. A similar approach is Series adopted by the Ministry of Finance in Singapore.
Tax, Private Wealth & • Risks surrounding Government activities and determinations Trusts Practice
Court Of Appeal Delivers The private sector often perceives that as the Government has law making powers, it also has the Judgment On The LTA- ability to affect the commercial deal between it and the private sector. Government activities and Komoco Motors Dispute determination do have the ability to adversely affect a project. However, it is generally recognised Insider Trading And The that PPP contracts should not attempt to constrain the ability of governments to change policy Vexed Question or make new laws. In these circumstances, the preferred approach is to allow for compensation Of General Availability or other redress in the project documents. Courts And Arbitration - A Question Of Balance? • Termination and Step-in Recent Developments In Singapore Law In PPP style projects, this is an area of particular concern to the private sector participants. This is so because private sector participants largely require termination and step-in rights to be limited Disclosure Of to major breaches or emergencies. They are also subject to lengthy cure periods in which to Confidential Information By Professional remedy a breach. In The Pursuit Of Its Legitimate Interests Conclusion Public Private PPP projects can be extremely complex and involve lengthy processes prior to reaching financial Partnership Projects close. In addition, there are a number of issues which arise regularly for determination in the PPP – The Process style of project delivery. In other jurisdictions such as Australia, a ‘standardised’ approach to some Open Source In IT Contracts
68 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The of these issues is being taken more often by government agencies, which leads to more certainty First Half Of 2008 for the private sector consortia interested in bidding for such projects. Rajah & Tann LLP Hosts 9th Lunchtime Seminar This approach is something which could be considered in Singapore so as to assist private sector Series consortia bidding for PPP style projects in the future here.
Tax, Private Wealth & Rajah & Tann LLP’s new Major Projects Group focuses on advising parties involved in large scale infrastructure and PPP style projects. See Trusts Practice related write-up on the Firm’s new Major Projects Group on page 7.
Court Of Appeal Delivers Judgment On The LTA- Komoco Motors Dispute
Insider Trading And The Vexed Question Of General Availability
Courts And Arbitration - A Question Of Balance? Recent Developments In Singapore Law For more information, contact:
Disclosure Of Amanda Davidson Confidential Information Foreign Law Partner, Major Projects Group By Professional DID: 6507 9529 In The Pursuit Of Its [email protected] Legitimate Interests
Public Private Amanda Davidson is an Australian qualified lawyer who has recently joined Rajah & Tann LLP as Foreign Law Partner to head the Firm’s Major Partnership Projects Projects Group. Amanda has over 20 years of extensive experience in advising on a wide range of infrastructure projects in the Australian – The Process and Asian markets including projects such as rail systems, roads, oil processing facilities, commercial and residential construction, airports, tunnels and telecommunications infrastructure. She specialises in advising industry participants in major projects in relation to all aspects of Open Source In IT project documentation as well as in relation to litigation, arbitration and other forms of dispute resolution. Contracts
69 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The First Half Of 2008 Open Source In IT Contracts
Rajah & Tann LLP Hosts 9th Lunchtime Seminar The open source model has been changing the way software is developed. For software developers, Series open source software provides a significant opportunity to reduce software development cycles, Tax, Private Wealth & which is crucial in an industry where the life cycle of software products is measured in months. Trusts Practice It also reduces the need to expend time and effort in programming for functionalities that may be provided as discrete modules. The reduction of software development time directly results Court Of Appeal Delivers Judgment On The LTA- in a reduction of the costs of software development. This is a benefit that many IT managers, Komoco Motors Dispute with limited IT budgets and seemingly unlimited calls by user departments on it, will keenly Insider Trading And The appreciate. Vexed Question Of General Availability Another phenomenon of the open source model is the ability to gather the best and brightest of developers to contribute, often in their spare time, to the development of open source software Courts And Arbitration - modules and sometimes complete systems. The pooling of worldwide talent results in unparalleled A Question Of Balance? Recent Developments In speed in the maturation of open source software and the correction of bugs and errors, at least in Singapore Law theory, and in the case of open source software with an active developer community, realised to a
Disclosure Of significant extent. Confidential Information By Professional As inhouse legal and IT manager, there are certain things to keep an eye out for when a software In The Pursuit Of Its vendor offers a solution is that based on open source software components. This article takes a Legitimate Interests brief look at the mechanics of these open source software and licenses, as well as addresses the Public Private issues that have arisen from their application. Partnership Projects – The Process
Open Source In IT Contracts 70 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The The Open Source Definition First Half Of 2008 Broadly defined, open source is a set of principles and practices on how to write software, Rajah & Tann LLP Hosts 9th Lunchtime Seminar the most basic of which is that the source code must be openly available. The Open Source Series Initiative (‘OSI’) (taken from http://www.opensource.org) founded in 1998 in California acts as the stewards of the Open Source Definition (‘OSD’), which sets out the criteria a particular open Tax, Private Wealth & Trusts Practice source licence must meet. These criteria or conditions thus form the cornerstone of the open source movement, with the emphasis on the freedom to proliferate and apply the software. They Court Of Appeal Delivers are as follows: Judgment On The LTA- Komoco Motors Dispute • Free redistribution – The licence shall not restrict any party from selling or giving away the Insider Trading And The software. The licence shall not require a royalty or other fee for such sale. Vexed Question Of General Availability • Source code – The program must include the source code, and must allow distribution in source Courts And Arbitration - code as well as compiled form. A Question Of Balance? Recent Developments In • Derived works – The licence must allow modifications and derived works. Singapore Law • Integrity of the Author’s source code – The licence may require that modifications are only re- Disclosure Of distributed as ‘patches’, to protect the integrity of the original source code. Confidential Information By Professional In The Pursuit Of Its • No discrimination against persons or groups. Legitimate Interests • No discrimination against fields of endeavour – The licence must not restrict anyone from making Public Private use of the program in a specific field of endeavour. Partnership Projects – The Process
Open Source In IT Contracts 71 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The • Distribution of licence – The rights attached to the program must apply to all to whom the First Half Of 2008 program is redistributed without the need for execution of an additional licence. Rajah & Tann LLP Hosts 9th Lunchtime Seminar • Licence must not be specific to a product – The rights attached to the program must not depend Series on the program’s being part of a particular software distribution.
Tax, Private Wealth & • Licence must not restrict other software – The licence must not place restrictions on other Trusts Practice software that is distributed along with the licensed software. Court Of Appeal Delivers Judgment On The LTA- • Licence must be technology-neutral. Komoco Motors Dispute Types Of Open Source Licences Insider Trading And The Vexed Question Open source licences play an integral part in setting out the various rights and obligations governing Of General Availability the application of these software. Courts And Arbitration - A Question Of Balance? GNU General Public Licence – Example Of A ‘Copyleft’ Licence Recent Developments In Singapore Law Written by Richard Stallman in 1989, the GNU General Public Licence (‘GPL’) is a widely used free software license, incorporating the primary principles of the Open Source movement. The GPL Disclosure Of remains one of the most popular licences used for open source software. The latest version (GPL Confidential Information By Professional Version 3) was officially released on 29 June 2007, and has been modernised by including, for In The Pursuit Of Its example, provisions to specifically exclude any anti-circumvention laws. Legitimate Interests GPL permits the copying, modifying and redistribution of the software to which it applies. The Public Private Partnership Projects user is required to release the source code for the software that works with the GPL components. – The Process Any changes to the GPL licensed software have also to be disclosed in source code, so that others
Open Source In IT Contracts 72 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The can benefit from the changes made. This principle of ‘copyleft’ essentially ensures that the rights First Half Of 2008 over the open source software are preserved, even when the GPL licensed software is changed or Rajah & Tann LLP Hosts added to. 9th Lunchtime Seminar Series This is of particular concern to IT managers. If the IT system that you are sourcing is commercially valuable, in the sense that the company wishes to keep it proprietary or cannot afford to have Tax, Private Wealth & Trusts Practice it released in source code, then care must be taken to avoid using any GPL licensed software components. Court Of Appeal Delivers Judgment On The LTA- Mozilla Public Licence – ‘Weak’ Copyleft Komoco Motors Dispute The Mozilla Public Licence (‘MPL’) is another example of an open source and free software licence, Insider Trading And The Vexed Question popularised by the software that gave it its name: Mozilla Firefox, Mozilla Thunderbird and other Of General Availability Mozilla projects. Although it is also recognised as a copyleft licence, its distinguishing factor is that it is commonly regarded as a ‘weak’ copyleft. Specifically, source code copied or changed under Courts And Arbitration - A Question Of Balance? the MPL must stay under the MPL. Unlike strong copyleft licenses like the GPL, the open source Recent Developments In code under the MPL may be combined in a program with proprietary software code without the Singapore Law requirement to disclose the source code of the latter. Disclosure Of Confidential Information The fundamental legal and philosophical difference between the MPL and GPL is that GPL licensed By Professional software must always remain free. Generally speaking, any additions made to GPL licensed In The Pursuit Of Its code need to be contributed back to the community, which is why the GPL is often referred Legitimate Interests to as a reciprocal license. With the MPL, there is no such stipulation for reciprocity or perpetual Public Private openness. Partnership Projects – The Process
Open Source In IT Contracts 73 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The The relevance of this distinction is that open source licences are, at the end of the day, licences First Half Of 2008 the terms of which can be enforced by the licensor. Examples of the enforcement of open source Rajah & Tann LLP Hosts licences are discussed in a later section of this piece. As inhouse legal or IT manager, this is an 9th Lunchtime Seminar important consequence to bear in mind when open source components are used in the IT solution Series that the vendor is proposing. Tax, Private Wealth & Trusts Practice Software Patent Issues
Court Of Appeal Delivers Software patents are a minefield of different opinions and philosophies, the merits of which are Judgment On The LTA- beyond this article. Needless to say, when the idealism of open source software advocates meet the Komoco Motors Dispute threat posed by software patents to the collegiate fraternity enjoyed by open source contributors, Insider Trading And The battle lines are drawn. Vexed Question Of General Availability Fundamental to this battle is the idea that free software projects cannot agree to patent Courts And Arbitration - licences that include any kind of per-copy licence fee, no matter how low the fee is. Apart A Question Of Balance? from the fact that there is no way for a free software distributor to know how many copies Recent Developments In of his software will eventually be made, the addition of any requirement to pay or to notify Singapore Law someone each time a copy is made would rid the open source software of its fundamental Disclosure Of tenet: that it should be freely available and distributable. Version 2 of the GNU GPL actually Confidential Information does not allow software to be distributed if that software requires a patent licence that does By Professional In The Pursuit Of Its not ‘permit royalty-free redistribution of the Program by all those who receive copies directly Legitimate Interests or indirectly through you’.
Public Private In addition, ‘patent retaliation’ clauses are increasingly seen in recent open source licences. The Partnership Projects goal of these clauses is to plainly discourage the licensee (the user / recipient of the software) from – The Process
Open Source In IT Contracts 74 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The suing the licensor (the provider / author of the software) for patent infringement by terminating First Half Of 2008 the license upon the initiation of such a lawsuit. This is evident from the recent incarnations of Rajah & Tann LLP Hosts the GPL Version 3, as well as the MPL. However, it should be noted that a patent licence that 9th Lunchtime Seminar is royalty-free, or provides a one-time worldwide payment is acceptable under some copyleft Series licences. Tax, Private Wealth & Trusts Practice Open Source On The Legal Battlefield
Court Of Appeal Delivers There have been battles fought over the interpretation and use of such open source licences. In Judgment On The LTA- Germany, a Munich court found that Skype had violated the terms and conditions of GPL Version 2 Komoco Motors Dispute by not including the source code with the binary version of the software. Instead, Skype had only Insider Trading And The included a ‘flyer’ with a URL describing where to find the source code version. Vexed Question Of General Availability Also, in the United States, the Free Software Foundation made its presence felt during the take- Courts And Arbitration - over of Linksys by Cisco. The Free Software Foundation, the developer and enforcer of GPL Version A Question Of Balance? 2, initially insisted that Cisco make the entire source code of the Linksys operating system available Recent Developments In under the GPL Version 2 because open source code licensed under the GPL were included in certain Singapore Law Linksys products. Such a result would have dramatically reduced the value of Linksys because the Disclosure Of source code of the Linksys products would have been available at no charge. Eventually, the dispute Confidential Information was settled amicably because Cisco and the Free Software Foundation came to an agreement that By Professional In The Pursuit Of Its the open source software was limited to a single driver, and Cisco then agreed to distribute that Legitimate Interests particular driver under the GPL Version 2.
Public Private The two examples above serve to exemplify the potential landmine that resides in the use of open Partnership Projects source licensing and software. – The Process
Open Source In IT Contracts 75 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
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A Round-Up Of Latest Developments In The It is thus important that the developers, entrepreneurs, and users of open source software need First Half Of 2008 to understand open source licences. The benefits of development using open source components Rajah & Tann LLP Hosts have to be balanced with the potential disclosure requirements and limit the economic benefits of 9th Lunchtime Seminar patenting otherwise proprietary software. Series
Tax, Private Wealth & Trusts Practice
Court Of Appeal Delivers Judgment On The LTA- Komoco Motors Dispute
Insider Trading And The Vexed Question Of General Availability
Courts And Arbitration - For more information, contact: A Question Of Balance? Recent Developments In Yeong Zee Kin Ng Yi Wen Singapore Law Partner, IP Technology Entertainment Associate, IP Technology Entertainment Communications (iTec) Practice Group Communications (iTec) Practice Group Disclosure Of DID: 6232 0772 DID: 6232 0795 Confidential Information [email protected] [email protected] By Professional In The Pursuit Of Its Legitimate Interests Yeong Zee Kin formerly held appointments as Assistant Registrar of the Supreme Court and as Deputy Public Prosecutor (‘DPP’) and State Counsel of the Attorney-General’s Chambers. As DPP, Zee Kin has prosecuted computer and white collar crimes and has an in-depth Public Private knowledge and experience in electronic evidence. He has also been involved in legislative reform of legislation dealing with electronic evidence and investigatory powers, spam control and provided advice on open source licensing issues. As an Assistant Registrar, Zee Kin has heard Partnership Projects interlocutory applications involving technology disputes and delivered a key decision on electronic service of documents. – The Process Ng Yi Wen is a new associate in the Firm’s IP Technology Enterntainment Communications (iTec) Practice Group who did pupillage with Open Source In IT Rajah & Tann LLP. Contracts 76 /77 Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on features and articles of current interest and legal developments
SINGAPORE OFFICE: PRACTICE GROUPS 4 Battery Road Admiralty & Shipping Derivatives Mergers & Acquisitions White Collar Crime / Anti-money Laundering #26-01 Bank of China Building Steven Chong SC 6232 0302 David Yeow 6507 9579 Goh Kian Hwee 6232 0747 Hamidul Haq 6232 0398 Singapore 049908 [email protected] [email protected] [email protected] [email protected] Main Line : (65) 6535 3600 Toh Kian Sing SC 6232 0614 Facsimile 6438 7110 Serene W Yeo 6232 0716 Facsimile 6438 1995 [email protected] [email protected] After Office Hours : (65) 96 902 253 (Mobile) Facsimile 6536 1335 iTec Facsimile 6536 9453 China Practice Main Facsimile : (65) 6538 8598 Lau Kok Keng 6232 0765 Chia Kim Huat 6232 0464 E-mail : [email protected] Banking [email protected] Major Projects [email protected] Website : www.rajahtann.com Soon Choo Hock 6232 0656 Rajesh Sreenivasan 6232 0751 Amanda Davidson 6507 9529 Yang Lih Shyng 86 21 6120 8818 [email protected] [email protected] [email protected] [email protected] eOASIS : eOASIS.rajahtann.com Facsimile 6438 0248 Facsimile 6438 5227 Facsimile 6438 9622 Facsimile (Singapore) 6720 2387 SHANGHAI OFFICE: Facsimile (Shanghai) 86 21 6120 8820 Unit 1905-1906, Shui On Plaza Business Finance & Insolvency International Arbitration Projects & Infrastructure Patrick Ang 6232 0400 Steven Chong SC 6232 0302 Quentin Loh SC 6507 9511 South Asia Practice 333 Huai Hai Middle Road [email protected] [email protected] [email protected] Leena Pinsler 6232 0455 Shanghai 200021, People’s Republic of China Lee Eng Beng SC 6232 0402 Sundaresh Menon SC 6232 2240 Facsimile 6438 9622 [email protected] Tel : (86) 21 6120 8818 [email protected] [email protected] Facsimile 6533 3701 Fax : (86) 21 6120 8820 Facsimile 6438 4787 Quentin Loh SC 6507 9511 Property Lee Lay See 6232 0500 Tax, Private Wealth & Trusts Practice Website : cn.rajahtann.com [email protected] Competition & Trade Law [email protected] Yeoh Lian Chuan 6232 0448 Chong Yee Leong 6507 9552 [email protected] MALAYSIA OFFICE: Kala Anandarajah 6507 9566 [email protected] Gan Hiang Chye 6232 0502 Kamilah & Chong* [email protected] [email protected] Stacy Choong 6232 1190 Facsimile 6438 9622 [email protected] Suite 3B-16-7, Level 16, Block 3B Plaza Sentral Facsimile 6438 9622 Facsimile 6533 1183 Jalan Stesen Sentral 5, Kuala Lumpur Sentral Insurance & Reinsurance Facsimile 6438 0248 Capital Markets & Corporate Finance Securities / Stockbroking 50470 Kuala Lumpur Malaysia Quentin Loh SC 6507 9511 Wong Kok Hoe 6232 0702 [email protected] David Yeow 6507 9579 Vietnam Practice Main Line : +603 22788311 [email protected] [email protected] Lim Wee Hann 6232 2256 Simon Goh 6232 0582 [email protected] Fax Number : +603 22738322 Goh Kian Hwee 6232 0747 [email protected] Facsimile 6438 7110 [email protected] Facsimile 6720 2387 Website : www.keplegal.com Facsimile 6538 8598 Serene W Yeo 6232 0716 Sports Law *Associate firm Lau Kok Keng 6232 0765 [email protected] Knowledge & Risk Management For feedback, comments and suggestions, please [email protected] Facsimile 6536 9453 Corporate Governance Stephen Townley 6232 0755 e-mail us at [email protected] Kala Anandarajah 6507 9566 [email protected] Commercial Litigation [email protected] Francis Xavier 6232 0551 Facsimile 6438 9622 Facsimile 6438 5227 LAWLINES EDITORIAL BOARD [email protected] Kala Anandarajah 6507 9566 Facsimile 6533 0827 [email protected] Foo E Lin 6507 9568 [email protected] The information contained in this newsletter is correct to the best of our knowledge and belief at the time of writing. The contents are intended to provide a general guide to the subject matter and should Hazel Galimba Guiling 6507 9570 not be treated as a substitute for specific professional advice for any particular course of action as the information may not necessarily suit your specific business and operational requirements. It is [email protected] to your advantage to seek specific legal advice for your specific situation. In this regard, you may call the writer of the article, the lawyer you normally deal with or e-mail Rajah & Tann’s Knowledge & Tan Loo Ying 6507 9577 Risk Management Group at [email protected]. [email protected] © Rajah & Tann LLP June 2008. All rights reserved.
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