Legal Bulletin a Summary of Developments in the Law at a Glance
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Legal Bulletin A summary of developments in the law At a glance Banking Singapore High Court considers scope of conclusive 6 evidence clause in banking documentation Corporate MOF and ACRA invite comments on wide-ranging changes to 11 Companies Act and revised regulatory framework for foreign entities SGX issues guide on sustainability reporting for listed 13 companies Dispute Resolution Singapore Court of Appeal elaborates on relationship 16 between insolvency and arbitration in upholding High Court decision Intellectual Property & Technology Singapore High Court dismisses application by a nightclub 19 operating at Marina Bay Sands to strike out trade mark action by Bali restaurant and bar Ku De Ta Media & Telecommunications Mandatory cross-carriage obligations to take effect on 23 1 August 2011 Tax IRAS issues e-Tax Guide on “Income Tax & Stamp Duty: 25 Mergers and Acquisitions Scheme” News Allen & Gledhill New Partners 2011 33 Allen & Gledhill wins Who’s Who Legal Country Award 2011 34 for Singapore Click here for Table of Contents Vol 23 No 7 July 2011 ALLEN & GLEDHILL LLP In this issue Articles Banking MAS revises MAS Notice 632 and responds to feedback on 4 Consultation Paper on Rules on Residential Property Loans: Mortgage equity withdrawal loans and aggregation of loans from moneylenders Singapore High Court considers scope of conclusive evidence 6 clause in banking documentation Competition CCS issues clearance decision relating to joint venture 10 agreement between three airline companies on air transportation of passengers Corporate MOF and ACRA invite comments on wide-ranging changes to 11 Companies Act and revised regulatory framework for foreign entities SGX issues guide on sustainability reporting for listed companies 13 Continuous all day trading on SGX securities market from 13 1 August 2011 Editorial Team Margaret Chew Singapore High Court judge considers right of access to company 14 documents in the context of a derivative action Elizabeth Wong Soo Seong Theng Dispute Resolution Hong Farn Ling Anitha Rajaram Singapore Court of Appeal elaborates on relationship between 16 insolvency and arbitration in upholding High Court decision Insurance The contents of the Legal Bulletin are intended to provide general information. Although we MAS issues consultation paper on “Proposed Revisions to the 17 endeavour to ensure that the Risk Based Capital Framework - Financial Resources Adjustment, information contained herein is Reinsurance Adjustment, C2 Risk Requirements” accurate, we do not warrant its accuracy or completeness or accept any liability for any loss Intellectual Property & Technology or damage arising from any reliance thereon. The information in JPO and IPOS extend Pilot Patent Prosecution Highway for 18 this Legal Bulletin should not another year till 1 July 2012 be treated as a substitute for specific legal advice concerning particular situations. If you IPOS launches IP Competency Framework and ideas2IP 18 would like to discuss the implications of these legal developments on your business Singapore High Court dismisses application by a nightclub 19 or obtain advice, please do not operating at Marina Bay Sands to strike out trade mark action by hesitate to approach your usual Bali restaurant and bar Ku De Ta contact at Allen & Gledhill LLP or the editors of the Legal Bulletin, Margaret Chew (+65 6890 7500 or margaret.chew@allenandgledhill .com) and Elizabeth Wong (+65 6890 7559 or elizabeth.wong @allenandgledhill.com). Legal Bulletin July 2011 2 Media & Telecommunications Mandatory cross-carriage obligations to take effect on 1 August 23 2011 SGNIC launches Internationalised Domain Names with effect from 24 4 July 2011 Real Estate MAS consults on proposed residential property loans fact sheet 25 Tax IRAS issues e-Tax Guide on “Income Tax & Stamp Duty: Mergers 25 and Acquisitions Scheme” MOF consults on draft Income Tax (Amendment) Bill 2011: 26 Implementing Budget 2011 changes MOF consults on draft Goods and Services Tax (Amendment) Bill 29 2011: Implementing Budget 2011 changes General MAS issues regulations providing for sanctions and freezing of 30 assets in relation to Libya Accounting Standards Council issues accounting standard and 31 financial reporting framework for charities News Acquisition of Allgreen Properties Limited 31 Silver Oak Ltd.’s Series 002 Commercial Mortgage-Backed Notes 32 Equity Fund Raising by Olam International Limited 32 Issue of A$500 million Senior Unsecured Floating Rate Notes due 32 2014 under the US$5 billion Programme for Issuance of Debt Instruments of Oversea-Chinese Banking Corporation Limited Acquisition of Hsu Fu Chi International Limited 33 S$2.16 billion revolving credit facility to SingTel Group Treasury 33 Pte. Ltd. Allen & Gledhill New Partners 2011 33 Allen & Gledhill wins Who’s Who Legal Country Award 2011 for 34 Singapore Allen & Gledhill LLP also publishes the monthly Financial Services Bulletin. To view the July 2011 issue, please click here. Legal Bulletin July 2011 3 Articles Banking MAS revises MAS Notice 632 and responds to feedback on Consultation Paper on Rules on Residential Property Loans: Mortgage equity withdrawal loans and aggregation of loans from moneylenders From 13 January 2011 to 14 February 2011, the Monetary Authority of Singapore (the “MAS”) sought comments on the proposals in its consultation paper entitled “Rules on Residential Property Loans” (the “Consultation Paper”). Primarily, the MAS proposed a requirement for financial institutions (“FIs”) to comply with regulatory loan-to-value (“LTV”) limits on mortgage equity withdrawal loans (“MWLs”) and to aggregate loans from moneylenders used to pay for residential property purchases, for LTV computation. On 13 July 2011, the MAS issued a revised MAS Notice 632 “Residential Property Loans” (“MAS Notice 632”) and released its response to comments received on the consultation paper. Most notably, the MAS has decided to maintain the status quo for MWLs for non-individuals, that is to say, MWLs to non-individuals will not be subject to a regulatory LTV limit. The MAS will proceed to introduce regulatory LTV limits on MWLs to individuals. The MAS’ response on issues that are of wider interest are highlighted below. Background On 13 January 2011, the MAS, jointly with the Ministry of Finance and the Ministry of National Development, announced measures to maintain a stable and sustainable residential property market in Singapore. The measures took effect on 14 January 2011 and included LTV limits of 60% and 50% on housing loans for purchasers who are individuals and non-individuals respectively. In its Consultation Paper, the MAS proposed requiring FIs to comply with regulatory LTV limits on MWLs that are secured on residential property, but not used for the purchase of the residential property. These limits were to be set at the same level as the regulatory LTV limits on housing loans granted for the purchase of residential properties. The MAS had also proposed that, for the purpose of LTV computation, FIs must aggregate the borrower’s loans from moneylenders, if any, which are used to pay for the property purchase. 50% LTV limit on MWLs to non-individuals On account of the following feedback, the MAS will maintain the status quo for MWLs for non-individuals, i.e. MWLs to non-individuals will not be subject to a regulatory LTV limit: the 50% LTV limit on MWLs would limit credit supply to small and medium-sized enterprises (“SMEs”) and increase their cost of borrowing; the operational difficulty of applying the 50% LTV limit as FIs often offer SMEs a package of credit facilities which is secured on a pool of collateral. In such loan structures, FIs do not apply a separate LTV limit on credit facilities secured solely on residential property. Legal Bulletin July 2011 4 However, the MAS expects FIs to continue to exercise prudent credit assessment in granting MWLs to non-individuals and to apply appropriate LTV limits on these MWLs based on their credit assessment. 80%/60% LTV limit on MWLs to individuals The MAS will introduce regulatory LTV limits on MWLs to individuals. Where the borrowers are individuals, a MWL on a residential property, together with the outstanding balance of any credit facilities secured on that property, will be subject to an LTV limit of: 80%, if the borrower has no outstanding credit facility for the purchase of another property; or 60%, if the borrower has any outstanding credit facilities for the purchase of another property. The MAS expects FIs to exercise due diligence and judgment on possible circumvention of these regulatory LTV limits on MWLs to individuals, for example, by individuals setting up vehicles to invest in property. Where “shell companies” are set up by individuals solely to obtain a MWL, FIs should “look through” and apply the 80%/60% LTV limit on MWLs to such “shell companies” as if they were individuals. However, the 80%/60% LTV limit would not apply to companies. Aggregation of loans from moneylenders for computation of LTV Self-declaration: The MAS received suggestions from respondents that FIs be allowed to rely on the borrower’s self-declaration on whether he has borrowed from moneylenders to make the property purchase. The MAS will allow an FI to rely on self-declaration by the borrower on whether he has borrowed from moneylenders or other sources to fund the property purchase. The FI should consider an appropriately-worded self-declaration by the borrower on whether he has borrowed from any other source other than the FI to pay towards the property purchase, and not restrict the content of the self-declaration to borrowing from licensed moneylenders only. Definition of “moneylender”: The MAS received feedback that the proposed legal definition of “moneylender” may be too wide. The proposed definition included “licensed moneylenders”, “excluded moneylenders” and “exempt moneylenders” as defined in the Moneylenders Act. Among the three categories, licensed moneylenders are the most common source of loans for the public. Taking the feedback For further information, please into account, the definition of “moneylender” in MAS Notice 632 now contact: encompasses only licensed moneylenders.