The Legal 500

On 10 April 2013, the Competition Appeal Board (CAB) dismissed all but two grounds of appeal by five modelling agencies that had been found by the Competition Commission of Singapore (CCS) to have engaged in price-fixing activities. CAB's decision resulted in a reduction in the total amount of financial penalties for the five modelling agencies.

NO IMMEDIATE ACTION IS NECESSARY

EXECUTIVE SUMMARY
On 2 April 2013, the Competition Commission of Singapore ("CCS") published a paper titled "Competition Assessment on the Industrial Property Market in Singapore" ("CCS Paper"). Amongst other things, the CCS Paper reviewed industry practices and regulations in the industrial property market in Singapore from 2002 to the first quarter of 2012 that may hamper or distort competition. Other markets that have previously been studied by CCS include the retail petrol market and the retail mall space rental market.

On 28 March 2013, the Competition Commission of Singapore ("CCS") handed down fines totalling S$179,071 on 12 motor vehicle traders for bidrigging at public motor vehicle auctions held by various government agencies

PREDICATE OFFENCES

On 9 October 2012, the Monetary Authority of Singapore ("MAS") issued a consultation paper to seek feedback on the designation of tax crimes as money laundering predicate offences in Singapore, which will come into effect on 1 July 2013. The consultation closed on 9 December 2012. Drew & Napier LLC had issued an update on this consultation paper. Please click here to refer to the update.

On 26 March 2012, the Monetary Authority of Singapore ("MAS") announced the launch of the Financial Advisory Industry Review ("FAIR"), with the aim of raising standards of practice in the financial advisory ("FA") industry and improving efficiency in the distribution of life insurance and investment products in Singapore. Subsequently, a panel, chaired by MAS and comprising representatives from industry associations, consumer and investor bodies, academia, media, and other stakeholders ("FAIR Panel"), was formed on 2 April 2012 to conduct the review.

In this issue, we discuss:

• a recently concluded arbitration whereby an oil and gas group was awarded $20m by the tribunal;
• jurisdictional challenge to an arbitration clause in a novated agreement; and
• a recent change in the China International Economic and Trade Arbitration Commission rules.

This update discusses a recent consultation paper (“Consultation Paper”) released by the Monetary Authority of Singapore pertaining to proposed amendments to the regulations pursuant to the Securities and Futures Act and the Financial Advisers Act. The closing date for this Consultation Paper is 4 January 2013.

To read the above article, please click on the link below.

Welcome to the final issue of Drew & Napier LLC's International Arbitration Quarterly for the year 2012.

In this issue, we discuss:

• the movement of international arbitration in India towards less judicial intervention;

• a recent arbitration which concerned alleged gross negligence and astronomical loss of profits; 

• the arbitrating parties' choice of law; and

• the importance of appreciating cultural nuance before an international arbitration panel.

Securities and Futures Act

This update discusses the concept of attributed liability which has recently come into effect under the Securities and Futures Act ("SFA") whereby an employer may face liability resulting from a contravention of market conduct provisions of the SFA by its employee, officer, partner or manager. Some practical recommendations for an employer to mitigate such risks are also discussed.

HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate Investment Trust) v Toshin Development Singapore Pte Ltd [2012] SGCA 48

In this issue
Singapore Competition Law Watch 1
Regulatory Updates 2
Industry News 3
– Anti-Competitive Agreements 3
– Abuse of Dominance 9
– Merger Regulations 10
– Procedural Matters and others 11
Feature Article 14
Hong Kong Passes its Competition Ordinance
Do you know? 16

The Malaysian Competition Commission (“MyCC”) has released its Guidelines on Chapter 2 of the Competition Act 2010 (“Chapter 2 Guidelines”), following its public consultation on the draft Chapter 2 Guidelines between 15 May 2012 and 15 June 2012.

Madhavan Peter v Public Prosecutor and other appeals [2012] SGHC 153

Lawyer Peter Madhavan, the first independent director to be sentenced to imprisonment in Singapore for market misconduct, has had his convictions, sentences and disqualification order overturned by the High Court.

The Monetary Authority of Singapore (“MAS”) has announced that the implementation of the enhanced regulatory regime for fund management companies (“FMCs”) will take effect from 7 August 2012.

On 18 July 2012, the Competition Commission of Singapore (“CCS”) issued an infringement decision against Batam Fast Ferry Pte Ltd (“Batam Ferry”) and Penguin Ferry Services Ltd (“Penguin Ferry”) for infringement of section 34 of the Competition Act (Cap. 50B) (“Competition Act”).

The Competition Commission of Singapore (“CCS”) published its revised Merger Control Procedures Guidelines (“Revised Guidelines”) on 20 June 2012, following a public consultation in the first quarter of this year on proposed revisions to the merger notification procedures in Singapore.

eSys Technologies Pte Ltd v nTan Corporate Advisory Pte Ltd [2012] SGHC 136

What are the options available to a party which is unsuccessful in an arbitration? Should it apply to set aside the award at the seat? Or should it resist enforcement of the award in the enforcement forum? Can it do both?

This update discusses the proposed revisions to the Patents Act, encapsulated in the Patents (Amendment) Bill (“Bill”). The proposed changes in the Bill would introduce a shift from the present self-assessment system to a positive grant system, whereby only patent applications which have fully positive examination reports and meet all the requirements under the Patents Act will be granted.

On 12 March 2009, the Monetary Authority of Singapore (“MAS”) issued a consultation paper (“March 2009 Consultation Paper”) proposing enhancements to the regulatory framework for unlisted investment products.

In this issue
Hot-tubbing in International Arbitration…1
By Chia Voon Jiet
Upcoming Amendments to the International Arbitration Act …………….. 3
By Chew Kiat Jinn & Mahesh Rai

Five months after the Competition Act 2010 (“Act”) came into force on 1 January 2012, the Malaysia Competition Commission (“MyCC”) has issued the final version of three guidelines (collectively, “Guidelines”) it had previously made available for public consultation last year. The Guidelines comprise of the following:

THE COMPETITION ACT

It was reported that the Malaysia Competition Commission (“MyCC”) announced on 27 April 2012 that a RM50,000 (S$20,400) fee would be payable for parties seeking to make an application for an exemption. In addition to the one-time application fee, parties who successfully obtain an exemption will have to pay an annual fee of RM10, 000 (S$4,100) for those under individual exemptions, or RM20,000 (S$8,200) for those under block exemptions.

IDA ISSUES TELECOM COMPETITION CODE 2012 AND NEW TELECOM CONSOLIDATION AND TENDER OFFER GUIDELINES

Crédit Industriel et Commercial v Teo Wai Cheong [2012] SGHC 94

The Singapore High Court has granted judgment to Crédit Industriel et Commercial (“CIC”) for its claim against Teo Wai Cheong (“Teo”) for payment for shares that were acquired under certain “accumulator” transactions carried out in 2007. 

On 14 June 2011, the Corporate Governance Council (“Council”) issued a consultation paper with proposed revisions to the Code of Corporate Governance (“Code”). Please click here to refer to Drew & Napier LLC’s update on that consultation.

Following the introduction of the Health Products Act in February 2007, the Health Sciences Authority (“HSA”) has continued to strengthen its regulatory framework through the implementation of the Health Products (Medical Devices) Regulations (“Regulations”).

On 9 March 2012, the Competition Commission of Singapore (“CCS”) announced that it had issued a Proposed Infringement Decision (“PID”) against Batam Fast Ferry Pte Ltd (“BFS”) and Penguin Ferry Services Pte Ltd (“PFS”).

On 19 March 2012, the Ministry of Information, Communications and the Arts (“MICA”) issued a consultation paper to seek feedback on the proposed Personal Data Protection Bill (“DP Bill”). Closing date for feedback is 30 April 2012. The public consultation can be accessed here.

The Singapore Code on Take-overs and Mergers (“Code”) has been revised by the Monetary Authority of Singapore (“MAS”) on the advice of the Securities Industry Council (“SIC”). The new Code will come into force on 9 April 2012.

To common law practitioners, cross-examination of witnesses is a critical part of any arbitration because it gives counsel an opportunity to test the veracity of the other party’s evidence.

SAAG Oilfield Engineering (S) Pte Ltd (formerly known as Derrick Services Singapore Pte Ltd) v Shaik Abu Bakar bin Abdul Sukol and another and another appeal [2012] SGCA 7

Two competition bills were recently tabled at the Senate of the Philippines – the “Competition Act of 2011”, which was tabled on 17 January 2012, and the “Competition Policy Act of 2011”, which was tabled on 26 January 2012.

The Monetary Authority of Singapore (“MAS”) recently announced plans to develop a regulatory framework for financial groups.

The Evidence (Amendment) Bill 2012 was read for the first time in Parliament on 16 January 2012 and passed on 14 February 2012. One of the notable changes to the Evidence Act is the extension of legal professional privilege to in-house counsel.

On 13 February 2012, the Monetary Authority of Singapore (“MAS”) issued a consultation paper on a significant new proposal: to regulate the trading of over-the-counter (“OTC”) derivatives.

The Consumer Protection (Fair Trading) (Amendment) Bill (“Bill”) was introduced in Parliament on 14 February 2012.

Amendments to the Evidence Act (“Act”) were passed in Parliament on 14 February 2012, setting out new rules for the type of evidence which may be admitted in court proceedings. These changes are likely to come into effect this year.

Kevin Lew Chee Fai v Monetary Authority of Singapore [2012] SGCA 12

This was the first civil insider trading case litigated in the Singapore Courts under the relevant provisions of the Securities and Futures Act (“SFA”) enacted in 2001. The matter proceeded all the way to the Court of Appeal which gave a detailed exposition of what constitutes insider trading under the laws of Singapore.

On 23 November 2011, the Competition Commission of Singapore (“CCS”) released an infringement decision against 11 modelling agencies in Singapore for breaching Section 34 of the Competition Act (Cap. 50B) (“Act”). Section 34 of the Act prohibits, amongst other things, price fixing activities.

The issue before the Court of Appeal was whether the registration of the trade mark NIKE should have been rejected on the ground that as of the registration date of the NIKE mark, there existed another identical earlier mark on the trade mark register. The appellant, Campomar SL ("Campomar"), was the proprietor of the earlier mark and had appealed against the decision of the High Court Judge, who had refused to overturn the decision of the Principal Assistant Registrar of Trade Marks ("PAR"), and allowed the trade mark NIKE to proceed to registration.

The Monetary Authority of Singapore (“MAS”) has issued a set of subsidiary legislation and regulations creating a new regulatory framework for credit rating agencies (“CRAs”).

The Health Sciences Authority (“HSA”) is holding a public consultation on its proposal to consolidate the legislative provisions regulating western medicine into a single statute. Currently, the regulatory controls are found in separate pieces of legislation, including the Medicines Act and the Poisons Act. It is proposed to transfer these provisions into the Health Products Act. 

IMPLEMENTATION OF COMPETITION LAW IN MALAYSIA Competition law in Malaysia will become a reality next year, with the Malaysia Competition Act 2010 (“Act”) due to take effect from 1 January 2012.

On 23 November 2011, the Competition Commission of Singapore (“CCS”) issued an infringement decision against 11 modelling agencies for fixing fees for modelling services in Singapore under the aegis of its trade association, the Association of Modelling Industry Professionals (“AMIP”). Ten agencies were fined a total of S$361,596, with individual fines ranging from S$3,000 to S$132,315.

Mano Vikrant Singh v Cargill TSF Asia Pte Ltd [2011] SGHC 241

In a landmark decision, the Singapore High Court has ruled in favour of an employer, holding that a clause in an employee incentive bonus plan which requires the employee to forgo deferred incentive payments if he resigns and joins a competitor (referred to as a “forfeiture-for-competition” clause) is not a restraint of trade. The employer need not show that such a clause is reasonable in order to enforce it.

In this issue
Reopening an Arbitral Tribunal’s Finding on the Legality of an Underlying Contract …………………………………………………1
By Cavinder Bull, SC & Kong Man Er
Recent Developments in the Enforcement of DAB Decisions in FIDIC Conditions of Contract ..…....…………………………….. 3
By Eugene Tan
ICC Rules of Arbitration 2012 ………….. 5
By Jimmy Yim, SC & Erroll Joseph
Accolades ……………..………………….... 7
Newsflash …………………….…………… 7

The International Who’s Who of Commercial Litigators has brought together three of the leading practitioners in the world to discuss key issues facing lawyers today.

Ministry Issues Further Public Consultation on Framework Details for National “Do-Not-Call” Registry

The Ministry of Information, Communications and the Arts (“MICA”) has issued a consultation paper relating to the setting-up of a Do-Not-Call (“DNC”) registry. This follows favourable feedback on this proposal, which was raised in MICA’s earlier consultation on setting up a consumer data protection framework in Singapore (“DP Consultation”). Please click here to refer to Drew & Napier LLC’s update on the DP Consultation.

In this issue Singapore Competition Law Watch ..................................................1

Regulatory Updates .……….………….2

Industry News …….…….….…………..4

– Anti-Competitive Agreements …….4

– Abuse of Dominance ……………....9

– Merger Regulations ………………13

– Procedural Matters …………….....16

Feature Article ....……………..……….17

Demystifying Merger Notifications – Procedures and Practical Tips Do you know? ………………..………..20

The Competition Commission of Singapore (“CCS”) issued an infringement decision on 30 September 2011, imposing financial penalties on 16 Employment Agencies (“EAs”) in Singapore, specifically for the fixing of monthly salaries of new Indonesian Foreign Domestic Workers (“FDWs”). The case, CCS 500/001/11 Fixing of monthly salaries of new Indonesian Foreign Domestic Workers in Singapore (“EA Case”), serves as a reminder to all companies operating in Singapore, regardless of their size, to ensure compliance with Singapore’s competition laws in the conduct of their businesses.

INTRODUCTION
The Securities Industry Council (“SIC”) has issued a consultation paper (“CP”) on proposed amendments to the Singapore Code of Take-overs and Mergers (“Code”). The consultation closes on 7 November 2011.

E C Investment Holding Pte Ltd v Ridout Residence Pte Ltd and others and another appeal [2011] SGCA 50

The Singapore Court of Appeal has, for the first time, held that specific performance will not automatically be granted for contracts relating to immovable property.

INTRODUCTION
The Monetary Authority of Singapore (“MAS”) has issued a consultation paper (“CP”) containing several regulatory enhancements and the draft legislative amendments which will give effect to the new regulatory regime for fund management companies (“FMCs”).

INTRODUCTION

The Singapore Exchange Ltd (“SGX”) has issued extensive amendments to the listing rules (“Listing Rules” or “LR”) of the Singapore Exchange Securities Trading Limited (“SGX-ST”) Listing Manual (“Listing Manual”) to strengthen corporate governance and foster greater corporate disclosure.

MICA ISSUES PUBLIC CONSULTATION ON PROPOSED CONSUMER DATA PROTECTION REGIME

Norwest Holdings Pte Ltd (in liquidation) v Newport Mining Ltd and another appeal [2011] SGCA 42

The Court of Appeal has ruled that a private bank owed its customer a duty of care both in contract and in tort, even though the agreements entered into between the parties did not contain any express terms requiring the bank to advise the customer. However, in its judgment, the Court of Appeal expressed the view that banks and other financial institutions may, with the use of appropriately drafted disclaimers or exclusion clauses, prevent a duty of care from arising.

1. Financial Advisers (Amendment) Regulations 2011
2. Notice on the Sale of Investment Products (Notice SFA 04-N12)
3. Notice on Recommendation of Investment Products (Notice FAA-N16)

From 1 August 2011, market prices and data will be generated continuously throughout the day including the period from 12.30pm to 2.00pm, and disseminated through existing data-feed channels, where investors normally obtain such information.

1 Singapore Competition Law
Watch
5 Regulatory Updates

“ALL REASONABLE ENDEAVOURS” OBLIGATION NOT LIMITED BY A PARTY’S COMMERCIAL INTERESTS

Jet2.com Ltd v Blackpool Airport Ltd [2011] EWHC 1529 (Comm)

In this issue
Arbitrability of Insolvency Related Claims
Retention of Title in International Sale of Goods
Should the Courts Injunct Arbitration Proceedings on the Basis of an Alleged Settlement Agreement?
Non-Arbitrability of Disputes With Public Interest Elements
ICCA Conference 2011

Tan Chong Koay & Anor v Monetary Authority of Singapore [2011] SGCA 36

In September 2010, the Singapore High Court ruled that Tan Chong Koay (“Tan”) and Pheim Asset Management Sdn Bhd (“Pheim Malaysia”) had contravened section 197(1)(b) of the Securities and Futures Act (“SFA”) by trading with the intention of creating a false or misleading appearance in the price of certain securities.

The Singapore Exchange Limited (“SGX”) has issued a policy statement (“Policy Statement”) and an accompanying guide (“Guide”) on sustainability reporting.

The Corporate Governance Council (“Council”) has issued a consultation paper with proposed revisions to the Code of Corporate Governance (“Code”). These amendments seek to promote a high standard of corporate governance among listed companies in Singapore and will bring the Code in line with international best practices.

Arising from the proposed Amendments to the Provisions Relating to Directors in the Companies Act and the Code of Corporate Governance

The Singapore Exchange Limited (“SGX”) recently made the following announcements which will improve its competitiveness and facilitate trading.

Jiang Ou v EFG Bank AG [2011] SGHC 149

In the recent decision of Jiang Ou v EFG Bank AG [2011] SGHC 149, the Singapore High Court awarded damages of approximately US$2.33 million to a customer for losses suffered as the result of 160 unauthorised transactions.

Ong Sim Ho, Director and Head of Tax at Drew & Napier LLC, was one of 9 experts from the Asia-Pacific region chosen to comment on what tax planning opportunities are available and how best to manage risk.

On March 30th, 2011, the Federal Administrative Court ruled on the Google Street View case.

As previously mentioned (see News dated 30 November 2010), the Swiss Federal Supreme Court held, in a decision dated 8 September 2010, that collecting dynamic IP addresses of persons uploading copyright-protected works and then forwarding those addresses to copyright holders so as to enable them to enforce their rights constitutes an unlawful and unjustifiable breach of the privacy of the persons concerned.

Logistep AG had been extracting the dynamic IP addresses of persons uploading copyright-protected works to P2P networks and then forwarding those addresses to the relevant copyright holders in order to allow them to identify the persons using the IP addresses by filing criminal complaints against “unknown” persons.

Bribery is taking on an increasingly cross-border character. Recently, 2 Singaporeans were alleged to be involved in bribing 6 match officials to fix 2 matches held in Turkey between Latvia, Bolivia, Estonia and Bulgaria.

On 19 May 2011, the Competition Commission of Singapore (“CCS”) published a staff report summarising its findings following a recent market inquiry into the competitiveness of the Singapore retail petrol market.

On 13 May 2011 and 18 May 2011, the Competition Commission of Singapore (“CCS”) issued two proposed infringement decisions (“PID”) relating to suspected contraventions of section 34 of the Singapore Competition Act (Cap. 50B) (“Act”).

INDEX TO ARTICLES
Trade Marks / Passing Off....................................1
LV Mark Not Tarnished.................................1
Amanusa Triumps Again...............................3
Mio v Singtel’s Mio.........................................5
Legend – “Shen Hua”....................................6
Clinique Not Clinic.........................................8

Hau Tau Khang v Sanur Indonesian Restaurant Pte Ltd & Anor [2011] SGHC 97

Summary

The Singapore High Court recently clarified the principles relating to a director’s right of inspection of the company’s accounts and other documents under section 199(3) of the Companies Act (“Act”). A director is entitled, as of right, to have access to the company’s accounts and other documents, subject to certain exceptions.

UK COURT OF APPEAL RULES THA “ENTIRE AGREEMENT” CLAUSE MAY NOT EXCLUDE LIABILITY FOR MISREPRESENTATION

1. SGX shortens time-to-market for secondary fund raising

On 9 December 2010, the Singapore Exchange Limited (“SGX”) announced measures to shorten time-to-market for secondary fund raising exercises. The measures formalise certain temporary measures on fund raising implemented in early 2009 to facilitate the raising of capital by companies under tight credit conditions during the global financial crisis.

The Monetary Authority of Singapore (“MAS”) has issued a revised Code on Collective Investment Schemes (“Code”). The revised Code strengthens the core investment requirements for collective investment schemes (“schemes”), introduces new guidelines for specialised fund categories such as index funds and money market funds, and puts in place other safeguards which enhance investor protection.

Overview

Recently, there has been increased attention worldwide in the area of anti-corruption law due to the enactment of the UK Bribery Act 2010 (“UK Bribery Act”). The UK Bribery Act will come into effect in the UK on 1 July 2011.

Jones v Kaney [2011] UKSC 13
Summary

The UK Supreme Court, the UK’s highest court, has abolished the immunity from suit for breach of duty that experts have enjoyed in relation to their participation in legal proceedings.

In This Issue
1 Singapore Competition Law
Watch
3 Regulatory Updates
9 Industry News
- Aviation
- FMCG
- Manufacturing &
Construction
- Pharmaceutical/Medical
- Others
20 Feature Article
22 Do you know?

The Monetary Authority of Singapore (“MAS”) has issued a tax circular (FDD Cir 02/2011) titled “Tax Exemption on Payments Falling under Section 12(6) of the Income Tax Act Made to Non-Residents (Excluding Permanent Establishments in Singapore) by Banks, Finance Companies and Certain Approved Entities” (“Circular”).

PP v Chong Keng Ban @ Johnson Chong & Ors [2011] SGDC 4

Summary

In PP v Chong Keng Ban @ Johnson Chong & Ors [2011] SGDC 4, an independent director of a listed company was sentenced to 4 months' imprisonment for consenting to the company making a misleading statement.

This is the first time that an independent director has been sentenced to a term of imprisonment for this offence. In the court's view, a custodial sentence was justified as the independent director was the "most culpable" and had played an "active role" in the events which took place.

The independent director has appealed against his conviction and sentence.

NEW YORK COURT GRANTS PRE-AWARD ATTACHMENT IN AID OF SINGAPORE ARBITRATION

Singapore’s Minister for Information, Communications and the Arts announced yesterday in Parliament that a new data protection bill will likely be introduced in early 2012.

NEW TRIPARTITE MEDIATION SCHEME TO BE INTRODUCED FOR EXECUTIVE EMPLOYEES

MAS PROPOSES ENHANCED POWERS FOR INSURANCE RESOLUTION

MAS ISSUES GUIDANCE ON FIT AND PROPER CERTIFICATION OF REPRESENTATIVES

SINGAPORE DATA PROTECTION LAW EXPECTED TO BE INTRODUCED IN 2012

What is the relevant legislation and who enforces it?

In one of the very few cases on assessment of damages heard by the Court of Appeal, the Court of Appeal has held that post-breach losses may be recoverable, thereby affirming the High Court’s decision in Fish & Co Restaurants Pte Ltd v MFM Restaurants Pte Ltd & Another [2010] 1 SLR 1104.

In March 2009, not long after the bankruptcy of Lehman Brothers Holdings Inc. (“Lehman”), the Monetary Authority of Singapore (“MAS”) issued a consultation paper containing proposals to revise MAS’ regulatory framework for unlisted investment products, such as the credit-linked structured notes which underwent drastic devaluation following Lehman’s collapse.

In this decision of international importance, the UK Supreme Court unanimously held that where a party resists enforcement of an arbitration award on the basis that there was no arbitration agreement binding upon it under the laws of the country where the award was made, the court of the country in which enforcement is sought is entitled, and indeed bound, to revisit the question of the arbitral tribunal’s jurisdiction.

In This Issue  -  Singapore Competition Law Watch  -  Asean Competition Law Watch  -  Regulatory Updates  -  Industry News  -  Aviation  - Financial  -  FMCG  -  Hospitality  -  Manufacturing  -  Pharmaceutical/Medical  -  Feature Article  -  Do you know?

The Singapore High Court has held that a mortgagee’s power to effect the sale and conveyance of a mortgaged property free from all subsequent encumbrances – the concept of “overreaching” – applies in general law, independent of any statute. In such situations, a subsequent mortgagee’s interest in the mortgaged property is extinguished and he can only look to the surplus sale proceeds to satisfy his interest.

In April 2010, the Singapore High Court found Silverlink Holdings Limited (“Silverlink”), the parent holding company of luxury resort chain, Amanresorts, liable for breach of contract for failing to issue convertible loan notes to the Plaintiffs, two companies owned by the Schroder Asian Properties (“SAP”) Fund.  

On 8 September 2010, the Monetary Authority of Singapore (the “MAS”) issued a consultation paper with proposed amendments to the Insurance Act (the “IA”). The aim of these amendments is to improve the MAS’ regulatory framework for persons engaged in insurance business and who act as insurance intermediaries in Singapore.

The Ministry of Information, Communications and the Arts (“MICA”) has issued a consultation paper (“CP”) reviewing the Telecommunications Act (the “TA”). The review aims to keep the statute up-to-date with the latest developments in the rapidly-changing telecommunications (“telecoms”) industry.

On 18 August 2010, the Competition Commission of Singapore (the “CCS”) published its final Statement of Decision in respect of the Singapore Medical Association’s (the “SMA”) Guidelines on Fees (“GOF”). The CCS concluded that the GOF infringed section 34 of the Competition Act1, and did not benefit from the Net Economic Benefit exclusion (the “NEB exclusion”).

In a case described by the Singapore High Court as one which reflects the “unfortunate but increasing incidence of fractious generational transitions within Singapore family businesses”, the Singapore High Court has declared invalid the removal of Ng Joo Soon as a director of Dovechem Holdings Pte Ltd.

MOF CONSULTATION PAPERS ON MERGERS AND ACQUISITIONS SCHEME

Quarterly Update

On 23 February 2010, the SGX and Oslo Børs ASA ("Oslo Børs") announced the first two companies for dual listing on both exchanges.

The two companies were Golden Ocean Group, a dry bulk carrier currently listed on Oslo Børs, and China Fishery Group, an industrial fishing company listed on the SGX.

AGREEMENT STIFLING CRIMINAL PROCEEDINGS TAINTED BY ILLEGALITY; ARBITRATION AWARD UPHOLDING SUCH AGREEMENT SET ASIDE

The Monetary Authority of Singapore (the “MAS”) recently revised its Guidelines on Criteria for the Grant of a Capital Markets Services Licence and Representative’s Licence (the “Guidelines”).

MAS CONDUCTS COMPREHENSIVE REVIEW OF CODE ON COLLECTIVE INVESTMENT SCHEMES

MAS REVIEWS REGULATORY REGIME FOR FUND MANAGERS AND EXEMPT FINANCIAL INTERMEDIARIE

(1) Singapore Competition Law Watch (2) ASEAN Competition Law Watch (3) Regulatory Updates (4) Industry News - Aviation - Financial - FMCG - IT - Manufacturing - Media - Pharmaceutical (5) Feature Article (6) Do you know?

In this recent case, the Singapore Court of Appeal (the “Court”) applied well established propositions of patent law to a patent infringement claim relating to a software patent. The Court also commented on the application of the plea of innocent infringement provided by section 69(1) of the Patents Act (Cap. 221).

In a Court of Appeal decision regarding a patent infringement case, it was held that the defence of “innocent infringement” applies to damages and not liability.

The Registrar of Patents has issued a decision that when considering an application for restoration of lapsed patents, impecuniosity is not a valid ground for non-payment of renewal fees.

The Applicants, Pensonic Corporation Sdn Bhd, applied to register (“Applicants’ Mark”) in Class 9 for electronic products. The Opponents, Matsushita Electrical Industrial Co Ltd, owned registrations of the “PANASONIC” mark (“Opponents’ Mark”) in numerous classes in Singapore for an extensive variety of goods and services. The Opponents’ Mark had been registered in Class 9 for electronic products since 1968 in Singapore.

In this trade mark opposition case, the Registry considered the issues of whether commonly used words in local dialects were capable of distinguishing a trader’s services from those of others, and whether evidence of substantial use of a mark was relevant when the mark was held to have no capacity to distinguish a trader’s services from those of others.

In this case, the luxury fashion brand Valentino Globe B.V. (“the Opponents”) failed in their bid to establish that their marks were well known in Singapore and also failed to prevent the registration of the mark “Emilio Valentino & Device “ ”by Pacific Rim Industries Inc. (“the Applicants”).

This case involved an application for a device mark showing a slug of toothpaste by Colgate- Palmolive Company (“the Applicants”) for dentifrices in Class 3. The mark was opposed by The Proctor & Gamble Company (“the Opponents”) on the grounds that it was not distinctive and not capable of distinguishing as a badge of origin.

The Opponents, Worldwide Brands, Inc., failed to adduce sufficient evidence that their CAMEL composite marks were well known marks and failed to prevent the registration of the SWEETCAMEL mark in Class 25. The Registrar’s decision which is summarized below was affirmed by the High Court.

The High Court allowed an application by Love & Co. Pte Ltd (“Love & Co.”) to invalidate for nondistinctiveness and revoke for non-use the trade mark registration for “LOVE”. The simple word mark “LOVE” had been registered in respect of jewellery, precious stones (including diamonds) and precious metals by The Carat Club Pte Ltd (“TCC”).

In this appeal against the unfavourable decision of the Principal Assistant Registrar of Trademarks (“PAR”), Mobil Petroleum Co., Inc. (“Mobil”) failed it its bid to prevent registration of the “Mobis” trademark by Hyundai Mobis (“Hyundai”) in respect of Class 12 goods. This is another decision by the High Court touching on the relatively new section 8(3) of the Singapore Trademarks Act which governs trade mark opposition on the basis of a “well-known” mark.

The Singapore Court of Appeal has refused to grant leave to appeal against a High Court Judge’s decision to uphold the District Judge’s judgment that the “virtual maps” placed online by a private map provider infringed the copyright belonging to its ex-licensors, a local statutory board.

Amanresorts, the owner of the AMANUSA resort in Bali took out an action to restrain the use of “AMANUSA” on a residential property development in Singapore. The action succeeded on the grounds of passing off and an injunction was granted on the basis that AMANUSA was a well-known mark in Singapore.

The High Court granted relief in an action for trade mark infringement and passing off of Louis Vuitton 4 trade marks and shed some light on how the question of dilution of well-known trade marks would be approached.

The first defendant was the proprietor of two “Rooster” trade marks, one registered in Singapore covering cordyceps, and the other registered in China. The background of its proprietorship of both marks is set out as follows:

The Singapore Court of Appeal has affirmed that Singapore courts will take a more liberal approach when considering restrictive covenants in the context of a sale of business, compared to a situation where such covenants are contained in a contract of employment.

The Singapore Exchange Ltd (the “SGX”) has issued a public consultation paper which sets out proposed amendments to the Listing Manual of the Singapore Exchange Securities Trading Ltd (the “Listing Manual”). The proposals are the result of the SGX’s latest rule review. Such reviews are carried out annually to keep abreast of industry developments and to enhance the standards of the listed companies.

The Singapore High Court has ruled that a rise in prices of sand, caused by a ban on sand exports (the “sand ban”) by the Indonesian government in January 2007, did not constitute a force majeure event which would relieve a concrete supplier of its obligations to supply concrete to a construction company. The court also highlighted the importance of being clear and unequivocal when communicating one’s intention to terminate a contract.

The charging section in the Income Tax Act brings within Singapore’s taxing jurisdiction not only income that is sourced in Singapore, but also income which is received in Singapore from outside of Singapore. In the light of criticism against remittance of income as a basis for taxation and the persistent lobbying of businesses in Singapore, recent amendments to the Income Tax Act have been steadily chipping away at the remittance basis of taxation in Singapore.

The Income Tax (Amendment) (Exchange of Information) Bill (the “Bill”) has been introduced in Parliament. The Bill proposes to amend the Income Tax Act to bring the level of assistance Singapore can provide to foreign jurisdictions under Avoidance of Double Taxation Agreements (“DTAs”) in line with the Organization for Economic Cooperation and Development’s Standard on the exchange of information for tax purposes (the “Standard”)

The international regulation of mergers and joint ventures in 64 jurisdictions worldwide

The Singapore High Court has criticised the conduct of the Singapore branches of two foreign banks in failing to adhere to internal control mechanisms and accepted banking procedures in the verification of signatures on certified extracts of board resolutions. The court also provided valuable guidance on the steps banks could take to ensure the bona fides of such certified extracts.

(1) Singapore Competition Law Watch (2) Regional Focus - China (3) Regulatory Update (4) Industry News - Aviation - Petrochemical - Cement - Financial - IT - Others (5) Do you know?

The Singapore Exchange Limited (the “SGX”) has announced two measures to assist companies listed on Catalist which have yet to appoint a sponsor (“Catalist-NS companies”). The measures are intended to provide financial assistance and time extension to Catalist-NS companies in light of the current challenging economic climate.

The Monetary Authority of Singapore (the “MAS”) has issued a consultation paper (the “Consultation Paper”) on its proposal to amend the definition of “carrying on insurance business” in the Insurance Act. The consultation is open for public feedback until 12 June 2009.

In this recent case, the Singapore Court of Appeal (the “Court”) applied well established propositions of patent law to a patent infringement claim relating to a business method. The Court also commented on the application of the plea of innocent infringement provided by section 69(1) of the Patents Act (Cap. 221).

Singapore is one of the most popular places in Asia for the commercialization of ideas and innovations, particularly in such fields as biomedical sciences and the creative and research industries. One of the greatest pull factors for global businesses to Singapore is the nation’s robust intellectual property (IP) protection and legal infrastructure. In fact, since 2002, Singapore has been ranked top in Asia for IP protection by the World Economic Forum (WEF), the Institute for Management Development (IMD) and the Political Economic Risk Consultancy (PERC). Singapore also emerged top in Asia for IP competitiveness in the Global IP Index conducted by law firm Taylor Wessing LLP with the support of Managing Intellectual Property in 2008.

The Life Sciences industry has for some years been lauded as a key industry for Singapore’s economy. The Singapore government is fully committed to nurturing and cultivating this industry, by investing in and developing several critical infrastructures for the Life Sciences industry.

In this issue, we look at some of the recent interesting Intellectual Property cases.

The Singapore Court of Appeal has provided valuable guidance on the relationship between “entire agreement” clauses and implied terms in contracts. An “entire agreement” clause would arguably not, as a matter of principle, exclude the implication of terms into a contract. In order for an “entire agreement” clause to exclude implied terms, such effect must be spelled out clearly and unambiguously in the clause itself.

The Court of Appeal also held that a general duty of good faith could not be implied in law into contracts.

The Accounting and Corporate Regulatory Authority (the “ACRA”) has announced that it will, on 4 May 2009, launch a new business structure known as the limited partnership (“LP”), pursuant to the Limited Partnerships Act 2008 (the “LPA”).

The Competition Commission of Singapore (CCS) plans to introduce a Marker system and a Leniency Plus system to the existing leniency programme to enhance the effectiveness of CCS’ enforcement action against cartels.

MAS provides summary of banking regulations and directives relating to Islamic financing; also explains treatment of various Islamic banking structures

This case illustrates the circumstances in which a court will find a director personally liable for procuring a tortious act by the company of which he is a director.

The Singapore High Court has affirmed that pre-contractual negotiations and drafts may be admissible for interpreting latently ambiguous terms in the final contract as long as they: (i) are relevant; (ii) are reasonably available to the parties in the situation in which they were at the time of the contract; and (iii) relate to a clear or obvious context.

This principle is subject to one possible exception: extrinsic evidence that was available to only one party may be used against that party to show its subjective intention, so as to reveal what the objective intention of the parties could not be.

As part of its major review on investment products, the Monetary Authority of Singapore (the “MAS”) has issued a consultation paper (the “Consultation Paper”) containing its proposals to curb mis-selling and improve disclosure in relation to three product groups (referred to collectively as “unlisted investment products”): debentures and collective investment schemes (“CIS”) which are not traded on any approved exchange, and life policies (including investment-linked life insurance policies (“ILPs”)).

The Court of Appeal has ruled that it may be an abuse of the court’s process for a creditor to threaten winding up proceedings against a debtor company which has offered to place the disputed sum in an escrow account. The court also signalled that a statutory demand issued under section 254(2)(a) of the Companies Act should inform the debtor company that it can either pay the debt or secure or compound for it to the creditor’s satisfaction.

The Singapore Exchange Limited (the “SGX”) has announced the issuance of new securities listing rules and changes to existing rules which will take effect from 24 March 2009. The new rules and rule amendments were finalised following a public consultation carried out by the SGX in July 2008. Please click here to view that consultation document.

The Consumer Protection (Fair Trading) Act (the “CPFT Act”) and related subsidiary legislation are set to undergo several changes which will, among other things, extend their scope of protection to consumers of financial products and services.

The Singapore Exchange Limited (the “SGX”), in consultation with the Monetary Authority of Singapore (the “MAS”), has introduced several new measures to facilitate listed companies’ fund raising efforts in the current challenging market conditions. These measures are in addition to those already announced by the SGX on 12 January 2009 (click here to refer to our summary of the earlier measures).

The Singapore Exchange Limited (the “SGX”) has launched a public consultation on new listing rules (the “Proposed Rules”) for non-commercialised life science companies to list on Catalist. A “non-commercialised life science company” (“NLSC”) is defined as “a life science company that has not commenced revenue-yielding commercial activities in its primary line of business”, where revenue that is incidental to the primary business is excluded.

Under general principles of corporate law, a corporation is not liable for any contravention of law or offence committed by its employees, except to the extent that the employee can be said to constitute or otherwise represent the directing mind of the company. Typically, the corporation would be attributed with liability only where the employee is a very senior person. In the context of Part XII (Market Conduct) of the Securities and Futures Act (the “SFA”), it may therefore be possible for a corporation to reap the benefit of any market misconduct carried out by its more junior employees.

The Securities and Futures (Amendment) Bill and the Financial Advisers (Amendment) Bill of 2009 were passed by Parliament on 19 January 2009. They will effect a very significant change to the regulatory regime for representatives employed by holders of capital markets services (“CMS”) licences and financial advisers (“FA”) licences under the Securities and Futures Act (the “SFA”) and Financial Advisers Act (the “FAA”) respectively.

The Banking (Amendment) Regulations 2009 (the “Regulations”) came into operation on 19 January 2009. The amendments present financial institutions offering Islamic finance a wider range of instruments with which to manage their liquidity and to match assets with liabilities. They comprise: (i) an amendment to Regulation 23; (ii) a new Regulation 23A; and (iii) a new Regulation 23B.

In a news release dated 12 January 2009, the Singapore Exchange Limited (the “SGX”) in consultation with the Monetary Authority of Singapore (the “MAS”) announced new measures to make it easier for listed issuers to carry out secondary fund-raising through rights issues. The proposed changes aim to assist listed issuers seeking equity funding from their shareholders in the current economic climate of reduced credit availability.

The Competition Commission of Singapore (the “CCS”) has gazetted its revised “Guidelines on Lenient Treatment for Undertakings Coming Forward with Information on Cartel Activity Cases” (“Revised Leniency Guidelines”) on 8 January 2009. The Revised Leniency Guidelines came into effect yesterday.

The Singapore High Court has held that a company director may, in principle, be liable in conspiracy with a company of which he is the “moving spirit and controlling mind” under circumstances where they have established an arrangement which benefits the company to the detriment of third parties.