State Courts Centre for Dispute Resolution

State Courts Centre for Dispute Resolution

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The State Courts Centre for Dispute Resolution (SCCDR) was established on 4 March 2015 by The Honourable the Chief Justice Sundaresh Menon. The SCCDR employs a judge-led Court Dispute Resolution (CDR) process to ensure that cases in the State Courts are managed robustly. In addition to judge-led case management, the SCCDR also conducts Neutral Evaluation, Judicial Mediation and Conciliation to facilitate the resolution of Civil, Criminal and Tribunal matters without trial.

Neutral Evaluation is a process in which the Judge reviews the case and provides an early assessment of the merits of the case. During Neutral Evaluation, the parties, with their respective lawyers, will present their case and the key evidence to the Judge, who will then provide his view of the parties’ likelihood of success at trial.

Judicial mediation is a process by which the Judge-mediator, facilitates and guides the parties in negotiating a mutually acceptable settlement to their dispute. The Judge does not offer specific solutions for the dispute. Instead, he helps the parties to focus on finding their own solutions that meet their concerns.

Conciliation is a process by which a Judge-conciliator facilitates an agreement between the parties on an optimal solution for their dispute. The Judge-conciliator will guide, assist and encourage the parties to reach an optimal solution by actively suggesting measures or proposals that may resolve the issues in dispute. Ultimately, the decision as to whether to agree to a settlement of the dispute rests with the parties. SCCDR will consider the use of Conciliation more widely after reviewing the results of the pilot phase which is scheduled for implementation in the third quarter of 2018.

Mediation

Mediation

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Singapore Mediation Centre

The Singapore Mediation Centre (SMC) is a not-for-profit organisation established in 1997. It is a company limited by the guarantee of the Singapore Academy of Law, a body created by statute. The Chairperson of SMC is a Judge of the Supreme Court.

SMC is the premier institution in Singapore providing mediation and other alternative dispute resolution services for commercial disputes. It has an accredited panel of professional mediators with legal and industry expertise, and actively promotes the use of mediation and alternative dispute resolution processes to businesses.

SMC pioneered mediation training in Singapore and is an acknowledged regional leader in this field, specialising in mediation training for judges, lawyers and other mediation stakeholders. SMC’s experienced training faculty has conducted training in ASEAN countries, Asia, the Middle East, the South Pacific region and in Europe.

SMC also provides consultancy in areas such as conflict resolution systems design and helping to construct mediation infrastructure.

Website: www.mediation.com.sg

General enquiries: enquiries@mediation.com.sg

Arbitration

Arbitration

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Singapore International Arbitration Centre

The SIAC first began operations in 1991 as an independent, not-for-profit organisation. SIAC is a premier, global arbitral institution with one of the highest administered caseloads in the world, and an excellent track record of enforcement of its awards in many jurisdictions such as, amongst other New York Convention countries, Australia, China, Hong Kong, India, Indonesia, Jordan, Thailand, UK, USA and Vietnam.

The SIAC Court of Arbitration (“SIAC Court”) is comprised of 22 eminent arbitration practitioners from around the world. The main functions of the SIAC Court include the appointment of arbitrators, as well as overall supervision of case administration.

The SIAC Rules are efficient, cost-effective and flexible, and incorporate features from civil and common law legal systems. SIAC supervises and monitors the progress of the case and conducts scrutiny of the arbitral award.

SIAC’s administration fees are highly competitive.

 

Source:
www.siac.org.sg

Litigation

Litigation

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Service of Civil Processes

In Singapore, litigation proceedings are typically commenced by way of an originating process (either a writ or an originating summons (“OS”)), which is followed by the defendant’s response (who normally enters an appearance if there is an intention to dispute the claim). This is followed by pleadings, discovery of documents, directions by the court, interlocutory applications for interim or final relief and, if the case has not been resolved by settlement (normally through negotiation or mediation) or terminated by summary or other form of interlocutory judgment, the action will be set down for trial.

All originating processes must be served personally [Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules of Court”), O. 10 r. 1 (writ) and O. 10 r. 5 (OS)]. Service out of the jurisdiction of any originating process is generally permissible with the court’s leave [O. 11 r. 1].

The general rule is that documents need not be served personally unless the Rules of Court or a court order expressly requires otherwise [O. 62 r. 1(1)]. Even if the Rules of Court require, the court has the power to dispense with the requirement of personal service [O. 62, r. 1(2)].

Litigation does not end when the judgment is rendered. There is usually at least one level of appeal as of right and the winning party may also face some resistance in enforcing judgments.

For more information, see: http://www.singaporelaw.sg/sglaw/laws-of-singapore/overview/chapter-2

Enforcement of Judgments

The Rules of Court provide for several ways to enforce a judgment:

(a) Writ of execution

(b) Examination of Judgment Debtors

(c) Garnishee proceedings

(d) Committal proceedings

It is also possible to enforce Singapore judgments in certain foreign jurisdictions and vice versa. Singapore judgments can be enforced by registration in countries and/or territories scheduled under:

(a) the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (“RECJA”), which covers the United Kingdom, Australia (the federal jurisdiction of Australia, New South Wales, Queensland, South Australia, Tasmania, Victoria, Western Australia, Australian Capital Territory, Norfolk Island, and Northern Territory), Hong Kong (for judgments obtained on or before 30 June 1997), New Zealand, Sri Lanka, Malaysia, Windward Islands, Pakistan, Brunei Darussalam, Papua New Guinea and India (except the State of Jammu and Kashmir); and

(b) the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed), which principally covers Hong Kong.

The availability of enforcement of judgments in foreign countries was recently bolstered by Singapore’s ratification in 2016 of the Hague Convention on Choice of Court Agreements Act (“the Hague Convention”) and passed into local law as the Choice of Court Agreements Act 2016 (No 14 of 2016) (“CCAA”) . It is also now provided that the RECJA does not apply to any judgment which may be recognised or enforced in Singapore under the CCAA: see s 2A of RECJA.

The ratification of the Hague Convention would significantly aid in the enforceability of Singapore judgments in states, which are parties to the Convention. Admittedly, the reach of the Convention is presently limited due to the low number of signatories. Having said that, one of Singapore’s major trading partners, the European Union is a party and the possibility of ratifying the Convention has also been mooted in several other countries. As such, the ratification of the Hague Convention is a significant step in the right direction towards enhancing the enforceability of court judgments.

For more information, see:
http://www.supremecourt.gov.sg/rules/court-processes/civil-proceedings/post-trial-matters/enforcement-proceedings

Judicial review

In Singapore, Article 93 of the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”) provides that “The judicial power of Singapore shall be vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force.” This refers to the power to pronounce on the constitutionality of a piece of legislation. While the Constitution vests the judicial power in the judiciary, it does not expressly provide for judicial review powers.

Nevertheless, it is trite in Singapore that the courts possess judicial review powers over administrative decisions as well as decisions taken by other branches of government. This was elegantly expressed close to three decades ago in Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [86]: “All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power”. Generally, the ambit of judicial review is based on the three separate grounds of illegality, irrationality and procedural impropriety.

The general rationale for judicial review is to:

(a) ensure the will of Parliament;

(b) serve as checks and balances based on the separation of powers; and

(c) fulfill the role of the judiciary as guardians of responsible administration.

Setting up a business in Singapore

Setting up a business in Singapore

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The following outline provides an overview of the steps and considerations a company typically goes through to set up in Singapore.

1. Choose your business structure

Any activity which is carried out on a continual basis for the purpose of gain is required to be registered with the Accounting and Corporate Regulatory Authority (ACRA). Every person, before carrying on business in Singapore, must register with ACRA, except for those who are exempted under the Business Names Registration Act (Cap 32). There are several types of business entities that can be set up in Singapore:

 

Sole Proprietorship
A sole proprietorship is a business owned by one person or one company. It is not a separate legal entity from its owner, the sole proprietor. The sole proprietor has absolute say in the running of the business, but he is also personally liable for the debts and losses of the business. The sole proprietorship must be registered under the Business Names Registration Act (No 29 of 2014). An individual who wishes to register a sole proprietorship in Singapore must either be a Singapore citizen, Singapore permanent resident or an EntrePass holder. If the sole proprietor is not resident in Singapore, he or she must appoint an authorised representative who is resident in Singapore.

 

Partnership
A partnership is a business firm formed by two to 20 partners. Once there are more than 20 members, the business must be registered as a company under the Companies Act (Cap 50, 2006 Rev Ed). A partnership (unlike a company) does not have separate legal personality. The partners have unlimited liability and each partner is personally liable for the partnership’s debts and losses, including those incurred by other partners. An individual who wishes to register a partnership in Singapore must either be a Singapore citizen, Singapore permanent resident or an EntrePass holder. If the owners are not resident in Singapore, they must appoint an authorised representative who is resident in Singapore.

 

Company
A company is a business entity registered under the Companies Act (Cap 50, 2006 Rev Ed). It has a legal personality separate from that of its shareholders and directors, and may own property in its own name, and may sue or be sued in its own name. The members of a company are not personally liable for the debts and losses of a company. Because of these advantages, a company usually has less flexibility than the other forms of business organisations and must comply with more formalities, including the rules and procedures in the Companies Act.

In Singapore, there are broadly three types of companies: (1) Exempt Private Companies which have 20 or less shareholders, with no corporation holding any beneficial interest in the company’s shares; (2) Private Companies with more than 20 but less than 50 shareholders; and (3) Public Companies which may have more than 50 shareholders. Public Companies may raise capital by offering shares and debentures to the public.

A company must have at least one shareholder and at least one director ordinarily resident in Singapore. If a foreigner wishes to act as a local director of a company, he must apply for an EntrePass from the Ministry of Manpower.

 

Limited Partnership
A limited partnership (“LP”) is a special type of partnership that consists of a minimum of two partners, with at least one general partner and at least one limited partner. As their labels suggest, the general partner has unlimited liability while the limited partner has limited liability. This means the general partner is responsible for the actions of the LP and is liable for its debts and obligations, while the limited partner is not liable and obligations of the LP beyond his agreed contribution, provided that he does not take part in its management. The LP itself does not have separate legal personality.

 

Limited Liability Partnership
A limited liability partnership (“LLP”) is a partnership between at least two partners where the individual partner’s own liability is generally limited. A partner within an LLP may either be an individual or a body corporate. The LLP is a halfway-point between a partnership and a company. It gives the business the flexibility afforded to a partnership but having the separate legal personality of a company. This means that all partners cannot generally be held personally liable for the LLP’s debts. (A partner may, however, be held personally liable for claims from losses resulting from his own wrongful act or omission, but will not be held personally liable for such wrongful acts or omissions of any other partner of the LLP.) An LLP can sue or be sued in its own name and may own property in its own name.

For a guide or to watch a video on the advantages and disadvantages of each business entity and how to choose the best one for your business needs, visit ACRA’s website. A comparison of the forms of business organisations in table format can be found here.

2. Register your business

Registering your business can be done online at Bizfile, ACRA’s online portal.

Or

Open a representative office

A representative office can be registered in Singapore as a temporary arrangement for conducting market testing and/or research activities. To open a representative office, please approach the following government agencies:

Banking, finance and insurance – Monetary Authority of Singapore

Legal – Legal Services Regulatory Authority

All other industries – Enterprise Singapore

3. Addressing key business needs

Before any business can commence operations in Singapore, it is important for business owners to be aware of any regulatory compliance requirements. To understand Singapore’s laws and regulations, the following resources may be useful:

Labour laws and regulations – Ministry of Manpower

Immigration laws and regulations – Immigration & Checkpoints Authority

Tax laws and regulations – Inland Revenue Authority of Singapore

Business laws and regulations – Accounting and Corporate Regulatory Authority

Customs laws and regulations – Singapore Customs

Full list of statutes – Singapore Statutes Online.

Subsequently, you may proceed with recruitment, financing, and property acquisition.

New businesses in Singapore may also leverage EDB’s network of partners in the private sector, who provide a full range of business support services. For EDB’s full list of partners, visit their Connections Concierge.

4. Incentives & Schemes

Business plan
To better facilitate and speed up the discussion with Singapore Government, it is recommended to prepare a business plan. The business plan should include a summary of what your business is about, your manpower needs, overheads (e.g. water and energy needs), land requirements, as well as your growth and sustainability plans for the next 3 years. Your business plan should include the following details:

 

Assistance required
– A short paragraph or list of areas that you are seeking assistance from the government.

Corporate profile and industry overview
– Parent company, including country of incorporation, and key financial figures at the group level
– Corporate business model/activities, strategy and worldwide presence
– Key products and services
– Target market in terms of customers, market segment and geographical coverage
– Competitor companies
– Trends and outlook for the industry segments that the company is operating in

Singapore operations
– Business goals and strategies
– Business model and activities

New project implementation (where applicable)
– Estimated business expenses for the new project or local entity in Singapore over
– Key milestones and the completion dates for new or expansion projects, such as:

  • Building or site acquired
  • Recruitment of manpower
  • Building construction started/completed
  • Machinery installation started/completed
  • Commercial production/operated started

Incentives and schemes
Foreign businesses with plans to grow through conducting high value and substantive activities in Singapore may be eligible to apply for various incentive programmes.
The current schemes and grants include:

Research Incentive Scheme for Companies (RISC)
The Research Incentive Scheme for Companies (RISC) encourages the development of research and development capabilities and technologies through the support of projects in the areas of science and technology.

Training Grant for Company (TGC)
The Training Grant for Company (TGC) encourages manpower capability development in applying new technologies, industrial skills and professional know-how through the support of training programmes for companies’ employees.

Productivity Grant (PG)
The Productivity Grant (PG) encourages firm-level projects which aim at improvements to energy, water, land or labour efficiencies through transformation efforts to enhance companies’ operations or involving adoption of technologies.

The current tax incentives available include:

Pioneer Certificate Incentive (PC) & Development and Expansion Incentive (DEI)
The Pioneer Certificate Incentive (PC) and the Development and Expansion Incentive (DEI) aim to encourage companies to grow capabilities and conduct new or expanded economic activities in Singapore. Companies that carry out global or regional headquarters (HQ) activities of managing, coordinating and controlling business activities for a group of companies may also apply for the PC or DEI for the HQ activities.

In the Singapore Budget Statement 2017, the Minister for Finance announced the introduction of the Intellectual Property Development Incentive (“IDI”) to encourage the use of intellectual property (“IP”) arising from research and development. Additionally, the scope of two existing incentives, namely the Pioneer Service Companies Incentive (“PC-S”) and the DEI will be amended to exclude IP income.

Finance & Treasury Centre (FTC) Incentive
The Finance and Treasury Centre (FTC) Incentive aims to encourage companies to grow treasury management capabilities and use Singapore as a base for conducting strategic finance and treasury management activities.

Land Intensification Allowance (LIA)
The Land Intensification Allowance (LIA) aims to promote the intensification of industrial land use towards more land-efficient and higher value-added activities.

Aircraft Leasing Scheme (ALS)
The Aircraft Leasing Scheme (ALS) aims to encourage companies to develop aircraft leasing capabilities and grow the aircraft leasing industry in Singapore.

For more information on the above schemes and grants, refer to EDB’s page here

5. Visa & immigration

Individual foreign entrepreneurs and investors who are interested in setting up a long-term base in Singapore can either apply for the EntrePass, or consider applying for Singapore Permanent Residence (PR) under the Global Investor Programme.

EntrePass
The EntrePass is designed to facilitate the entry and stay of entrepreneurs who intend to start and operate a new business in Singapore. Successful applicants will first be awarded a one-year pass, which is renewable to a two-year pass upon meeting certain renewal criteria. An EntrePass holder can get certain family members to join them in Singapore if the requirements for minimum business spending and local jobs created are met.

EntrePass is open to all nationalities. In order to be eligible for an Entrepass, you need to

  • Have started, or intend to start, a private limited company registered with ACRA.
    • If registered, the company must be less than 6 months old on the date you apply.
    • If not registered, you can do so after you know the outcome of your application.
  • Meet any of the following innovative criteria for application as an entrepreneur, innovator or investor:
    • An entrepreneur who:
      • Has funding from government-recognised VC or business angel
      • Is an incubatee at a government-recognised incubator or accelerator
      • Has business network and entrepreneurial track record
    • An innovator who:
      • Holds an intellectual property
      • Has a research collaboration with an IHL or research institute in Singapore
      • Has extraordinary achievements in key areas of expertise
    • An investor who:
      • Has investment track record

Visit the Ministry of Manpower for more information about EntrePass

Global Investor Programme (GIP)
The GlP accords PR status to investors with a substantial business track record who intend to drive the growth of their investments from Singapore. To qualify for the GIP, the applicant must either (a) invest at least S$2.5 million in a new business entity or in the expansion of an existing business operation in Singapore; or (b) invest at least S$2.5 million in a GIP fund that invests in Singapore-based companies.

To be eligible, the applicant must have a substantial business track record and a successful entrepreneurial background.
For more details on the GIP, refer to EDB’s Global Investor Programme fact sheet.

 

Sources:

www.edb.gov.sg

www.acra.gov.sg

www.mom.gov.sg

Insolvency Laws

Insolvency Laws

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Singapore’s system of insolvency laws comprises procedures for liquidation as well as rehabilitative debt restructuring procedures. The main types of proceedings within the latter category are judicial management and schemes of arrangement. The key statute governing insolvency and corporate rescue mechanisms in Singapore is the Companies Act. As regards personal insolvency and rehabilitative mechanisms, the Bankruptcy Act (Cap 20, 2009 Rev Ed) is the key statute. Parliament passed significant amendments to various insolvency and debt restructuring provisions in the Companies Act in 2017 and those have come into force with effect from 23 May 2017.

Liquidation

The liquidation or winding up of a company is a process by which the company’s assets are pooled together and realised in order to pay off the company’s debts. Any monies remaining after all debts, expenses and costs have been paid are then distributed amongst the shareholders of the company. When liquidation is complete, the company is formally dissolved and ceases to exist.

There are broadly two types of winding up: (1) voluntary winding up and (2) compulsory winding up. Voluntary winding up may take the form of a members’ voluntary winding up or a creditors’ voluntary winding up. A members’ voluntary winding up is only available in respect of a solvent company. The members of the company must pass a resolution that the company be wound up. If the company is insolvent, and wishes to be wound up, it may do so by way of a creditors’ voluntary winding up. The company must convene a meeting of its creditors to consider the proposal for the company to be wound up voluntarily. Apart from voluntary winding up, winding up may also be ordered compulsorily. The Companies Act specifies the parties who may apply to have a company wound up compulsorily, as well as the grounds on which a company may be ordered to be wound up. A common ground is that the company is unable to pay its debts.

When a company is wound up, its assets and affairs are taken over by the Official Receiver or a private liquidator (depending on which is appointed on the winding up of a company), whose powers, duties, and functions are regulated by statute. Within 14 days of the winding up order, the directors and secretary of the company must deliver a statement of affairs to the liquidator, which details the company’s assets and liabilities. This, as well other statutory provisions, allows the Official Receiver or liquidator of the company (as the case may be) to investigate the affairs of the company. Once a winding up order is made, no action against the company may be commenced or continued without leave of the Court. A liquidator’s powers also include the ability to avoid or “reverse” certain transactions which may have wrongfully depleted the assets of the company prior to the winding up proceedings.

The Companies Act specifies the procedures by which creditors may lodge their claims with the liquidator. The liquidator adjudicates on the claims and, upon realising the company’s assets, distributes the proceeds amongst the creditors according to the pari passu principle. The Companies Act specifies that certain types of unsecured creditors are owed preferential debts which take priority over the company’s general unsecured creditors. However, with the recent amendments to the Companies Act, the Court now has the discretion to order that a creditor which provides “rescue financing” to an ailing company be afforded super-priority over the company’s other secured and unsecured creditors.

Judicial Management

Apart from winding up, an insolvent company may also be placed under judicial management. Whereas this was previously only available to Singapore-incorporated companies, the 2017 amendments to the Companies Act make judicial management available in respect of foreign companies with a “substantial connection” with Singapore.

Judicial management can be ordered where the company is or is likely to become unable to pay its debts, and where judicial management is likely to fulfil one or more of the following objects: (1) the survival of the company as a going concern; (2) effecting a scheme of arrangement between the company and its creditors; or (3) a more advantageous realisation of the company’s assets than would otherwise occur on a winding up. The Court also has the power to make a judicial management order where it considers that the public interest so requires.

Upon the making of an application for judicial management, a statutory moratorium takes effect which, in brief, prevents the passing of any resolution or the making of any order for the winding up of the company, and which also prevents any legal and enforcement proceedings being commenced or continued against the company without leave of the Court. The scope of this moratorium is further extended when a judicial management order is made.

Upon the making of the judicial management order, the judicial manager takes over the affairs of the company from the board of directors. The judicial manager then presents a statement of proposals to the creditors. If these proposals are approved, the judicial manager must manage the company’s affairs in accordance with the approved proposals. A judicial management order is discharged after 180 days unless extended by the Court.

Schemes of Arrangement

An ailing company and its creditors may privately reach a compromise arrangement under which the creditors may agree to forgo all or part of their claims against a company, or to reschedule their debts. This may be done without the assistance of the court, but to do so would require the unanimous consent of all affected creditors, which may be difficult to obtain. A court-sanctioned scheme of arrangement, on the other hand, would allow a company to reach a compromise arrangement which is binding upon all creditors without obtaining the unanimous consent of its creditors.

The process begins with the company itself or a creditor of the company making an application to Court to convene a meeting or meetings of creditors of the company. For the purposes of such a meeting or such meetings, the creditors must be divided into separate classes if their rights are so dissimilar that they cannot sensibly consult together with a view to their common interest.

If the Court makes such an order convening the meeting or meetings of creditors, a proposal must then be tabled before the relevant meetings and approved by the requisite majority of each class of creditors. The requisite majority is a majority in number representing three-fourths in value of each class of creditors present and voting at the meeting. However, the 2017 amendments to the Companies Act give the Court wider “cram down” powers. The Court may now sanction a scheme notwithstanding that the requisite majority has not been obtained in respect of every class of creditors. It has the power to “cram down” one or more classes of dissenting creditors provided that certain conditions are satisfied, including the condition that the compromise must not discriminate unfairly between two or more classes of creditors and is fair and equitable to each dissenting class. Once sanctioned by the Court, the scheme then becomes binding on all of the company’s creditors, whether they were in favour of the scheme or not.

Unlike judicial management, an application for the Court to convene a meeting of creditors to set in motion the process of reaching a scheme of arrangement does not automatically set a moratorium in place, unless an application is made under the newly introduced s 211B of the Companies Act pursuant to the 2017 amendments. In the latter instance, an automatic 30-day moratorium arises upon the filing of such a s 211B application. The company applying for the moratorium must, however, furnish the Court with a brief description of the intended compromise or arrangement, and evidence of support for the intended compromise or arrangement from the company’s creditors. The company must also undertake to the Court that it will, as soon as practicable, make an application for the Court to set in motion the process for reaching a scheme of arrangement.

Cross-border Insolvency

With the 2017 amendments to the Companies Act, the UNCITRAL Model Law on Cross-Border Insolvency (“Model Law”) now has the force of law in Singapore. The Model Law is a framework of rules providing the mechanisms for dealing with cases of cross-border insolvency, including (a) access by foreign insolvency representatives to the court of the enacting state; (b) recognition by the enacting state of foreign insolvency proceedings; (c) the granting of relief to assist foreign insolvency proceedings; and (d) cooperation and coordination of concurrent proceedings.

With effect from 1 February 2017, the Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters approved by the Judicial Insolvency Network (“JIN”) supplement all legislation, rules and procedure governing insolvency, following the issuance of Registrar’s Circular No. 1 of 2017. The JIN is a network of insolvency judges from several jurisdictions which aims to encourage communication and cooperation amongst national courts, and the network to date comprises judges from Argentina, Australia (Federal Court and New South Wales), Bermuda, Brazil, the British Virgin Islands, Canada (Ontario), the Cayman Islands, England & Wales, Singapore and the United States of America (Delaware and Southern District of New York). While Singapore’s adoption of the Model Law provides the legislative basis in Singapore to recognise and give effect to foreign insolvency proceedings, the JIN Guidelines serve to supplement how courts may coordinate concurrent cross-border insolvency proceedings while considering whether the foreign insolvency proceedings commenced in one court should be recognised by another court.

 

Source:
www.singaporelaw.sg

Commercial Laws

Commercial Laws

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Contract Law

Singapore contract law is largely based on the English common law of contract. Unlike some neighbouring States, Singapore’s Parliament did not codify Singapore’s contract law following its independence in 1965. Hence, most of Singapore’s contract law is based on the common law, although some statutes apply to specific areas of contract law, such as the Misrepresentation Act (Cap 390, 1994 Rev Ed), the Frustrated Contracts Act (Cap 115, 2014 Rev Ed), and the Sale of Goods Act (Cap 393, 1999 Rev Ed).

For a contract to be formed, one party needs to have made an offer which the other accepted. Both parties must have the objectively ascertained intention to be bound and must provide consideration (something of value requested by the party making the promise and given by the party receiving the promise) for the promise. The terms of the contract must also be sufficiently certain such that the courts can interpret the terms. The Electronic Transactions Act (Cap 88, 2011 Rev Ed) clarifies that offers and acceptances may be made in electronic form. It also has specific provisions governing how the time and place of dispatch (of contractual documents) are to be determined. Even if not all the elements of a binding contract are present, the promising party may still be bound to his word by promissory estoppel, which occurs when that party makes an unequivocal representation, relied on by the other party to his detriment, and in circumstances that would make it inequitable for the promising party to resile.

Once a contract is formed, the parties need to perform it. At times there will be disputes as to what the contractual terms mean. The courts, when asked to interpret these terms, will take an objective view of what these terms mean to a reasonable person in the parties’ shoes. Evidence outside the four corners of the contract can also sometimes be adduced in court to interpret the terms, but these are subject to the conditions in the Evidence Act (Cap 97, 1997 Rev Ed) and the common law. Essentially, they must not serve to contradict the express contractual terms, and must be relevant to the dispute at hand, reasonably available to both parties, and point to a clear and obvious context in which the term should be interpreted. Apart from the terms expressly written in the contract, there may be times where parties try to imply a term which is not written into the contract. The threshold for doing so is high so as not to disturb commercial certainty. The implied term must be necessary to fill a gap in the contract and the contents of the implied term must be so obvious that if it had been put to the parties at the time they were contracting whether that term forms part of the contract, the parties would have reacted by saying “oh, of course!”

Not all contracts are performed. Where they are not, the innocent party is always entitled to damages but at times may also be entitled to terminate the entire contract at his option. Damages are always available to the innocent party and the court will award damages that put the innocent party in the position as if the breach had not occurred (ie, the expectation interest), or, if that cannot be calculated, the amount which the innocent party invested into the contract (ie, the reliance interest). However, the innocent party can only claim damages that are foreseeable and he must also mitigate his losses. As for the right to terminate, only breaches of certain types of terms give rise to this right. The term that is breached must either be a condition, meaning that the parties assigned a high importance to it, or the term must be an innominate term and its breach must substantially deprive the innocent party of the benefit he would have received under the contract. Generally speaking, only parties to the contract may invoke the rights under the contract. Third parties can only do so under the limited situations spelt out in the Contracts (Rights of Third Parties) Act (Cap 53B, 2002 Rev Ed).

Contracts may also be discharged by law through no fault of the parties (ie, if the contract is frustrated) or by one party’s volition if that party has been induced to enter the contract (eg, by misrepresentation, mistake, or undue influence). Many of these specific areas are governed by statutes, such as the Frustrated Contracts Act (Cap 115, 2014 Rev Ed) and the Misrepresentation Act (Cap 390, 1994 Rev Ed).

Company Law

In Singapore, companies are principally governed by the Companies Act (Cap 50, 2006 Rev Ed) as supplemented by the common law. It must be noted that some types of companies are also governed by other statutes, such as the Limited Liability Partnership Act (Cap 163A, 2006 Rev Ed), the Banking Act (Cap 19, 2008 Rev Ed), and the Insurance Act (Cap 142, 2002 Rev Ed).

Section 17(3) of the Companies Act provides that a business organisation with more than 20 members must be incorporated as a company. When incorporating or registering a company, s 22 of the Companies Act details the requirements for the corporate constitution, including the company’s name and whether it is limited or unlimited. Once incorporated, s 19(5) provides that the company is a body corporate with all the powers that flow from such an entity, such as being able to sue and be sued in its own name, perpetual succession, and the ability to hold land. While the company is a separate legal entity from its members, the courts may at times lift the veil of incorporation – ignoring the separate personality and treating the company and its members as one for limited purposes. This is generally done by statute and under limited common law exceptions, such as where there is fraud or where the company and its members have conducted themselves as one entity.

A company is managed by its directors. Section 157A of the Companies Act gives the board of directors this power subject to any limits in the company’s constitution. Along with these powers come duties owed to the company, under both common law and s 157 of the Companies Act. A director should act in the company’s best interests and avoid conflicts of interest in carrying out his role. If a director breaches these duties, the company may be able to take action against him.

A company may sue its director (or other third parties) in its own name. Because of the separate personality it possesses, a member of the company cannot sue to enforce rights that belong to the company – this is known as the ‘proper plaintiff’ rule. Exceptions to this include derivative actions under the common law and under s 216A of the Companies Act, which allow any member to bring an action in the company’s name when certain conditions are met. These individual (or minority) members may also bring an action to vindicate their own interests against the majority members through a minority oppression claim under s 216 of the Companies Act. When minority members take out such an action, the court usually orders a buyout of their shares, or in extreme cases, a winding-up of the company, under s 254 of the Companies Act.

A company is owned by its members. Each member’s rights are determined by the amount and nature of the shares he holds. Specific provisions in the Companies Act govern the proper use of shares, including the principle that the company may only purchase its own shares under certain circumstances and may only reduce its capital when certain conditions are met.

In dealing with third parties a company may issue shares and debentures. Certain types of charges, including all floating charges, must be registered under s 131 of the Companies Act within 30 days after their creation or they will be void against the liquidator and any creditor the company.

Finally, a company in distress may be wound up either voluntarily (by its members or creditors) or compulsorily by court order. Alternatively, the company could undergo a scheme of arrangement if it is desirable that the company remains functional, but where the rights of the company, its creditors, and its shareholders need to be rearranged, especially where the company is financially unstable. The company could also undergo judicial management for rehabilitation or preservation of its assets. These provisions under the Companies Act have recently undergone significant changes with the coming into force of the Companies (Amendment) Act 2017 with effect from 23 May 2017.

Banking Law

In Singapore, the laws regulating banking are found in statutes (principally the Banking Act (Cap 19, 2008 Rev Ed)) and the common law.

The relationship between banker and customer is largely governed by the common law and is essentially one of contract. However, establishing a banker-customer relationship gives rise to certain duties on the part of the banker, such as a duty of care in carrying out the banker’s mandate and the duty to make reasonable attempts to contact the customer to obtain his mandate. Most commonly, this relationship is established by the customer opening an account with the bank.

Although the banker-customer relationship is largely governed by the common law, s 47 of the Banking Act provides that a banker has a duty of secrecy. Section 47 provides that customer information shall not be disclosed by a bank or its officers (including a director, secretary, employee, receiver, manager, and liquidator) unless specified exceptions in the Third Schedule apply, for example where the bank is authorised to do so or if required by court order. Contravening s 47 is an offence for which the individual involved may be convicted. Because of s 47, the common law exceptions to the duty of confidentiality (or secrecy) no longer apply in Singapore.

Banks are also subject to the Personal Data Protection Act (No. 26 of 2012) (“PDPA”), which requires banks (amongst other organisations) to only collect, use, and disclose an individual’s personal data with his consent and for a reasonable purpose that the bank has made known to the individual. The bank is also subject to other requirements under the PDPA to ensure that this overarching purpose is complied with.

The bank is a lender. When lending money, it may obtain security for a loan such as a charge over the lender’s property. Certain types of charges, including all floating charges, must be registered under s 131 of the Companies Act within 30 days after their creation. Other types of security include mortgages, pledges, and liens. Apart from lending, the bank may also issue a guarantee.

Finally, banks may carry on and offer financing based on Islamic concepts of murabaha, ijara wa-gtina, diminishing musharaka, and istisna. In 2010, the Monetary Authority of Singapore issued its comprehensive “Guidelines on the Application of Banking Regulations to Islamic Banking” to provide banks with guidance on the issue. The overall policy approach is to align the tax treatment of Islamic contracts with the tax treatment of the conventional financing contracts to which the Islamic contracts are economically equivalent.

 

Source:
www.singaporelaw.sg

Approach to International Law in Singapore Domestic Law

Approach to International Law in Singapore Domestic Law

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The Constitution of Singapore is silent as to the interaction between international law and Singapore domestic law. However, it is accepted in practice that whether there is a treaty in force between Singapore and another State is settled by the executive.

Although the executive does not need Parliament’s consent to enter into treaties, merely entering into treaties does not create rights or duties that can be enforced in Singapore courts. The treaties must be transposed into domestic law by legislation before rights and duties are created. Only Parliament has the power to transpose treaty law into domestic law, even if refusing to do so would amount to a treaty violation.

Similar to the executive and Parliament, the Singapore courts adhere strictly to the principle of separation of powers. Hence, the court cannot assess the desirability of or the wisdom behind the treaties entered into by the executive, and can only review the relevant domestic law where treaties have been incorporated into domestic law by Parliament.. The courts can do so by construing the effect of this legislation or by declaring the statutory provision null and void if it violates the Constitution. In discerning Parliament’s intent behind the domestic legislation, the courts apply the presumption that Parliament intends to adhere to international law and international comity. Section 9A(2) of the Interpretation Act (Cap 1, 2002 Rev Ed) has been construed as being wide enough to encompass international law when giving effect to legislation which was meant to give effect to Singapore’s international law obligations.

Apart from treaty law, the Singapore courts generally adhere to the doctrine that customary international law may be invoked in the Singapore courts as part of the common law. However, the customary international law that is received would still remain subject to the hierarchy of domestic legal sources. In other words, customary international law is received into Singapore as part of the common law and would still be subject to statutes and the Constitution. This remains the case even if the customary international law norm in question is jus cogens (ie, a peremptory norm). Of course, Parliament is free to legislate customary international law norms into statute, at which point it would be construed as all other statutes would, and would take precedence over the common law.

Finally, proof of international law is not usually considered to involve proof of fact, unlike proof of foreign law. However, this is a point that has not been tested in the Singapore courts.

 

Source:
www.singaporelaw.sg

International Treaties That Singapore Is Party To

International Treaties That Singapore Is Party To

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International Treaties

Singapore’s international network of agreements includes International Investment Agreements (“IIA”), Free Trade Agreements (“FTA”), Economic Partnership Agreements (“EPA”) and International Tax Agreements.

IIAs, FTAs and EPAs

An IIA (also commonly called “bilateral investment treaty” (“BIT”) when used in a bilateral context, or “investment guarantee agreement” (“IGA”)) promotes greater investment flows and provides better investment protection for companies of the signatories. An IIA contains obligations on the host State, including the principle of fair and equitable treatment, the principle of non-discrimination, compensation in the event of expropriation, free transfer of funds, and provisions setting out mechanisms for the settlement of investor-state disputes.

FTAs and EPAs are treaties which facilitate trade and investments between 2 or more economies. Singapore’s network of more than 22 implemented agreements makes international business simpler and strengthens the cost competitiveness for Singapore-based exporters. FTAs and EPAs are treaties which facilitate trade and investments between 2 or more economies. Singapore’s network of more than 22 implemented FTAs/EPAsagreements makes international business simpler and strengthens the cost competitiveness for Singapore-based exporters.

Certain FTAs/EPAs feature Investment Chapters. However, these Investment Chapters generally go beyond the scope of BITs or IGAs in that they include other elements such as investment liberalization, promotion and facilitation.

IIAs

The table below sets out Singapore’s IIAs which are already in force:

No.Country/ ReligionDate of Entry into ForceRemarks
1ASEAN29 Mar 2012

ASEAN IGA and the AIA agreement were terminated when ACIA* entered into force on 29 Mar 2012.

There are also Investment Chapters/ agreements covering the ASEAN Member States in the following FTAs: AANZFTA, ACFTA and AKFTA*. They also contain provisions on investment promotion.

2Bahrain*8 Dec 2004 
3Bangladesh*19 Nov 2004 
4Belarus*13 Jan 2001 
5Belgium & Luxembourg*27 Nov 1980 
6Bulgaria*10 Feb 2006 
7Cambodia*24 Feb 2000Cambodia is also a Party to ACIA*, AANZFTA, ACFTA and AKFTA*.
8Canada*30 Jul 1971 
9China*7 Feb 1986There is an Investment agreement in ACFTA; and also an Investment Chapter in the CSFTA.
10Czech Republic*7 Oct 1995 
11DPRK (Democratic People’s Republic of Korea)*18 Mar 2009 
12Egypt*20 Mar 2002 
13France*18 Oct 1976 
14Germany*1 Oct 1975 
15Hungary*1 Jan 1999 
16Jordan22 Aug 2005 
17Kuwait*15 Apr 2013 
18Laos*26 Mar 1998Laos is also a Party to ACIA*, AANZFTA, ACFTA and AKFTA*.
19Latvia*18 Mar 1999 
20Libya22 Dec 2011 
21Mauritius*19 Apr 2000 
22Mexico3 Apr 2011 
23Mongolia*7 Jan 1996 
24Netherlands*7 Sep 1973 
25Oman*12 Oct 2008 
26Pakistan*4 May 1995 
27Poland*29 Dec 1993 
28Russia16 Jun 2012 
29Saudi Arabia*5 Oct 2007 
30Slovak Republic*6 Jun 2007 
31Slovenia*8 Sep 2000 
32Sri Lanka*30 Sep 1980 
33Switzerland*3 May 1978Switzerland is also a Party to the ESFTA, which includes an Investment Chapter.
34Turkey27 Mar 2010The BIT with Turkey has been superseded by the TRSFTA, which recently entered into force on 1 October 2017. The BIT will continue to apply to matters that arose regarding investments made pursuant to the BIT while the BIT was in force, until 1 October 2020.
35Ukraine*14 Jul 2007 
36United Kingdom*22 Jul 1975 
37United States25 Mar 1966 
38Uzbekistan*23 Nov 2003 
39United Arab Emirates8 Apr 2012 
40Vietnam*25 Dec 1992Vietnam is also a Party to ACIA*, AANZFTA, ACFTA and AKFTA*.
    
 Indonesia*21 Jun 2006

The BIT has expired on 20 June 2016 but will continue to be effective until 20 June 2026 for investments made prior to the date of termination

Indonesia is also a Party to ACIA*, AANZFTA, ACFTA and AKFTA*.

*These agreements require an investment to be approved in writing in order for the investment to be protected under the terms of the treaty.

FTAs/EPAs

Singapore has over 22 implemented agreements in force. These include bilateral as well as regional FTAs/EPAs.

Bilateral FTAs/EPAs

(a)  China-Singapore Free Trade Agreement (CSFTA)*
        a. Investment chapter incorporates that of ACFTA

(b)  India-Singapore Comprehensive Economic Cooperation Agreement (CECA)*

(c)  Japan-Singapore Economic Partnership Agreement (JSEPA)*

(d)  Korea-Singapore Free Trade Agreement (KSFTA)*

(e)  New Zealand-Singapore Comprehensive Economic Partnership (ANZSCEP)*

(f)  Panama-Singapore Free Trade Agreement (PSFTA)*

(g)  Peru-Singapore Free Trade Agreement (PeSFTA)*

(h)  Singapore-Australia Free Trade Agreement (SAFTA)*

(i)  Singapore-Costa Rica Free Trade Agreement (SCRFTA)*

(j)  Singapore-Jordan Free Trade Agreement (SJFTA)

(k)  Sri Lanka-Singapore Free Trade Agreement (SLSFTA)

(l)  Turkey-Singapore Free Trade Agreement (TRSFTA)

(m)  United States- Singapore Free Trade Agreement (USSFTA)*

Regional FTAs

(a)  ASEAN-Australia-New Zealand Free Trade Area (AANZFTA)*

(b)  ASEAN-China Free Trade Area (ACFTA)*

(c)  ASEAN-India Free Trade Area (AIFTA)*

(d)  ASEAN-Japan Comprehensive Economic Partnership (AJCEP)

(e)  ASEAN-Korea Free Trade Area (AKFTA)*

(f)  ASEAN Free Trade Area (AFTA)

(g)  EFTA-Singapore Free Trade Agreement (ESFTA)*
        a. Countries from EFTA are Iceland, Lichtenstein, Norway and Switzerland

(h)  GCC-Singapore Free Trade Agreement (GSFTA)
        a. Countries from GCC are Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates

(i)  Trans-Pacific Strategic Economic Partnership (TPSEP)
       a. States parties: Brunei, Chile, New Zealand, Singapore

*These FTAs include Investment Chapters

International Tax Agreements

Singapore has concluded the following international tax agreements:

(a)  Avoidance of Double Taxation Agreements (“DTAs”)

(b)  Limited Treaties

(c)  Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (“MLI”)

(d)  Exchange of Information Arrangements (“EOI Arrangements”)

(e)  Convention on Mutual Administrative Assistance in Tax Matters

(f)  International Tax Compliance Agreements, which include:

(i)  A Foreign Account Tax Compliance Act (“FATCA”) Model 1 Intergovernmental Agreement (“IGA”) with the US

(ii)  Bilateral Competent Authority Agreements on the Automatic Exchange of Financial Account Information under the Common Reporting Standard (“bCAAs for CRS”)

(iii) Multilateral Competent Authority Agreement on the Automatic Exchange of Financial Account Information under the Common Reporting Standard (“MCAA CRS”)

(iv) Multilateral Competent Authority Agreement on the Exchange of Country-by-Country Reports (“MCAA CbCR”)

Please refer to the Inland Revenue Authority of Singapore (IRAS) website for more details on the international tax agreements entered into by Singapore: https://www.iras.gov.sg/irashome/Quick-Links/International-Tax/

 

Sources:

www.enterprisesg.gov.sg/FTA

www.mti.gov.sg

www.iras.gov.sg

Securities and Futures Act

Securities and Futures Act

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Securities and Futures Act (Cap 289, 2006 Rev Ed)

https://sso.agc.gov.sg/Act/SFA2001

The Securities and Futures Act (“SFA”) is a broad-ranging statute which governs Singapore’s capital markets and financial investments sector. The SFA puts in place rules and regulations concerning, inter alia, markets, market operators, clearing facilities, intermediaries and representatives. The scope of the SFA includes the following:

(a) Part II: Markets

(b) Part IIA: Trade Repositories

(c) Part III: Clearing Facilities

(d) Part IIIAA: Central Depository System

(e) Part IIIA: Approved Holding Companies

(f) Part IV: Holders of Capital Markets Services Licence and Representatives

(g) Part VIA Reporting of Derivatives Contracts

(h) Part VIB: Clearing of Derivatives Contracts

(i) Part VII: Disclosure of Interests

(j) Part VIII: Securities Industry Council and Take-over Offers

(k) Part IX: Supervision and Investigation

(l) Part X: Assistance to Foreign Regulatory Authorities

(m) Part XI: Investor Compensation Scheme

(n) Part XII: Market Conduct

(o) Part XIII: Offers of Investments

 

Part IV of the SFA establishes a Capital Markets Services License (CMSL) regime. Subject to certain licensing exemptions, persons who wish to carry out regulated activities must be holders of a CMSL. Activities which are regulated and require licensing under the SFA include the following:

(a) Dealing in securities;

(b) Trading in futures contracts;

(c) Leveraged foreign exchange trading;

(d) Advising on corporate finance;

(e) Fund management;

(f) Real estate investment trust management;

(g) Securities financing; and

(h) Providing custodial services for securities.

 

Part XII of the SFA addresses prohibited market conduct including, inter alia, false trading and market rigging, market manipulation, and insider trading.

 

Part XIII of the SFA governs the offering of financial products including shares and debentures, business trusts, collective investment schemes.

In January 2017, Parliament passed the Securities and Futures (Amendment) Bill 2016 which introduced significant changes to the SFA. Some of the key amendments include the extension of the scope of the SFA to over-the-counter derivatives, enhanced regulatory safeguards for retail investors, and the implementation of a stronger enforcement regime against market misconduct.

 

Source:
www.ifaq.gov.sg/MAS