Legal Updates for Dec - 2019
Proposed Changes to Payment Services Act 2019 to Address New AML/CFT Risks and Regulatory Issues with StablecoinsOn 23 December 2019, the Monetary Authority of Singapore ("MAS") published the following two Consultation Papers on the Payment Services Act 2019 ("PS Act").
(i) Proposed Amendments to the Act: In this Consultation Paper, MAS proposes to amend the PS Act so that the anti-money laundering and countering the financing of terrorism (AML/CFT) requirements for payment service providers providing payment services relating to digital payment tokens ("DPT") and cross-border money transfer are in line with the enhanced Financial Action Task Force Standards. The Consultation Paper also sets out proposals on other technical amendments to the PS Act.
(ii) Scope of E-money and Digital Payment Tokens: MAS has observed that changes in the product development of e-money and DPT and the way in which the public has been using these modes of payment may be blurring the line between the e-money and DPT regimes under the PS Act. One such example is the emergence of stablecoins as a new class of cryptocurrencies. This Consultation Paper seeks views from the public, financial institutions including the payments industry, and academics on various issues arising from the emergence of stablecoins.
The consultation period for the above consultation papers ends on 28 January 2020. 27 Dec 2019 | Singapore
The MAS also published the specimen forms on licensing matters relating to a payment service provider, including the Notification Form for the Purpose of Exemption from Holding a Licence under the Payment Services Act for the Specified Period ("Notification Form"). The Notification Form is for entities to notify MAS of the date on which they commenced the business of providing the specific payment services set out in the Payment Services (Exemption for Specified Period) Regulations 2019 and to be exempted from licensing for specific payment services for a transitional period. Notifications and applications with these Forms will only be accepted via the online form after the PS Act commences on 28 January 2020. 20 Dec 2019 | Singapore
In November 2019, the Indonesian government enacted the much-anticipated e-commerce regulation, Government Regulation No. 80 of 2019 on Commerce through Electronic Systems, which regulates various players in an e-commerce industry. These players can be categorised into three groups: merchants, e-commerce service providers and intermediary service providers.
Foreign businesses that are actively engaging (e.g. making offers from offshore) with consumers in Indonesia and satisfy the applicable thresholds will also be subject to the Regulation. The threshold will depend on the number of transactions, transaction value, number of delivery of packages and/or amount of traffic. Foreign businesses that satisfy the applicable thresholds will be subject to Indonesian tax.19 Dec 2019 | Indonesia
On 20 November 2019, the National Assembly adopted an amended Labour Code ("Amended Labour Code"), with a view to improving the current Vietnamese legal framework. The Amended Labour Code is expected to take effect on 01 January 2021.16 Dec 2019 | Vietnam
As a general rule, trustees owe numerous obligations to the trust that they must discharge. To minimise the trustees’ liability, trust deeds often include anti-Bartlett clauses which purport to exclude the trustees’ supervisory duties. In IQ EQ (NTC) Trustees Asia (Jersey) Limited and another v Bruno Arboit and Roderick John Sutton and another  HKCFA 45, the Court upheld the anti-Bartlett clause in the trust deed, ruling that it had successfully excluded any "high level supervisory duty" owed by the trustee. 14 Dec 2019 | Singapore
The amendments will come into force on 15 December 2019. The Building and Construction Security of Payment Regulations will also be amended with effect from 15 December 2019 ("Amended Regulations") to implement these changes. 13 Dec 2019 | Singapore
In Sim Tee Meng v Haw Wan Sin David and another  SGCA 71, Harish Kumar and Jonathan Toh of Rajah & Tann Singapore successfully assisted victims of a fraudulent foreign real estate project marketed in Singapore to hold the director and Key Executive Officer ("KEO") of the real estate agency personally liable for their loss. On appeal, the Appellant argued that he was not personally liable – only his estate agency was. The Court of Appeal rejected this argument, holding that the Appellant personally owed a duty of care to the Respondents. As the KEO, he had breached his duty of care to the victims by making negligent misrepresentations without carrying out the necessary due diligence checks and was therefore liable for the loss they suffered due to his misrepresentations. 12 Dec 2019 | Singapore
Application of Discounts in Valuing Shares for a Buy-Out Order Where There is No Finding of OppressionThe Rajah & Tann team comprising Patrick Ang, Jared Kok, Derek On and Torsten Cheong has secured a significant victory before the Court of Appeal in the long-running dispute between the shareholders of the Samwoh Group. In Liew Kit Fah and others v Koh Keng Chew and others  SGCA 78, the Court of Appeal, reversing the High Court’s decision, held that shares which are ordered to be purchased following a compromised oppression suit where liability was not admitted are liable to be discounted to reflect their fair market value. The Court of Appeal’s judgment contains important and authoritative guidance on the proper approach to valuing shares ordered to be sold in this context, when the sale would be treated as one between a willing buyer and a willing seller, and consequently the kind of discounts which would be applicable for the purposes of determining the fair market value of the shares. 09 Dec 2019 | Singapore
In MAN Diesel & Turbo SE and anor v IM Skaugen SE and anor  SGCA 80, the Singapore Court of Appeal reversed the decision of the High Court and ordered the service of writ on the MAN entities outside jurisdiction to be set aside, effectively spelling the end of the Singapore chapter of this long-running litigation.
The case is of both practical and academic importance, as it contains authoritative guidance on the role of an appellate court in the review of decisions on jurisdictional issues, the relevance of subsequent events in an application to set aside service out of jurisdiction, how multiple inter-related claims are to be treated in the jurisdiction inquiry, how the availability of the Singapore International Commercial Court (SICC) features in the forum non conveniens analysis, and the test to be applied when assessing where a tortious cause of action arises for purposes of the jurisdiction gateway analysis. 07 Dec 2019 | Singapore
The Basel Convention sets out Prior Informed Consent ("PIC") procedure for the transboundary movement of hazardous waste and other controlled wastes. Presently, solid plastic wastes are not considered as hazardous waste unless they contain hazardous substances. Certain plastic waste will eventually be subjected to the PIC procedure.
This will mean that domestically, companies involved in the transboundary movement of such plastic waste will be required to adhere to the PIC procedure, obtain a Basel Permit from NEA, as well as obtain a Bank Guarantee. These new control measures will tentatively come into effect on 1 October 2020. 06 Dec 2019 | Singapore
Further to AHP’s previous client alert on the new Komisi Pengawas Persaingan Usaha (“KPPU”) merger regulation (“New Merger Control Regulation: Asset Acquisitions are now subject to KPPU Notification”, October 2019), it now sets out further details on asset acquisitions that are subject to KPPU’s notification based on several discussions with the KPPU. This update discusses the following;
(b) Notification Thresholds
(c) Pre-Closing Procedure
KPPU has stated that it intends to publish an implementing guideline of the new merger regulation. As such, the discussion here is subject to this upcoming guideline.
05 Dec 2019 | Indonesia