СТА - ведущая юридическая компания в Дубае с офисами по всему мируhttps://www.stalawfirm.com/ru.htmlSTA Law Firm - Блоги - Singapore LawruCopyright 2024 STA Law Firm All Rights Reserved<![CDATA[Blockchain Technology and NFTs in Singapore]]> Development of Blockchain Technology and NFTs in Singapore

"I love this stuff - bitcoin, ethereum, blockchain technology and what the future holds". Abigail Johnson

Blockchain technology lays a foundation for many cryptocurrencies. Singapore is rising as one of the leading blockchain development countries in the world. Since the birth of the first digital currency, Bitcoin, in 2008, blockchain technology has grown significantly in various fields. As one of Asia's financial hubs, Singapore has also attracted a large range of software professionals and financial services involving blockchain technologies and nonfungible tokens. NFT marketplaces can be both gaming platforms for earning digital assets like Axie Infinity and trading platforms such as NBA TopShot or metaverse platforms like Decentraland and Earth 2 where you can buy and sell virtual properties.

The Blockchain and NFT Technology

An NFT has a unique identifier representing an underlying tangible or intangible asset, such as a pair of limited-edition sneakers or a painting. Unlike fiat currencies and cryptocurrencies, each NFT is distinct from other NFTs and cannot be replicated. Each of them is represented by a certificate of ownership of the underlying property. In other words, when a buyer purchases an NFT, they are claiming sole ownership of it. The rights of NFT owners are recorded on associated smart contracts.

NFT-Related Regulations

Depending on the characteristics of an NFT, the NFT is governed by the Singapore Payment Services Act of 2019. It is identified as a digital payment token or the Securities and Futures Act if identified as the titles of securities. In these cases, licensing requirements will apply.

Securities Regulated by the Singapore FinTech Association

The Singapore FinTech Association does not specify whether NFTs constitute securities. The definition of securities covers any other product or class of products that may be prescribed. This allows to include NFT as a form of security, depending on the characteristics and purposes of a particular NFT. In general, securities are generally fungible such as shares, units in business trusts, and obligations of the companies. If an NFT represents partial ownership in a company, the prospectus and business requirements will apply.

Blockchain Development in Singapore

Education

Blockchain applications allow employers and universities to verify the qualifications of students or employees using smart contracts. A public higher education institution in Singapore called Ngee Ann Polytechnic uses blockchain to authenticate the Ngee Ann Polytechnic's degrees. It is the first educational institute in Singapore to use blockchain to improve its processes.

With this transformation, employers can require a student to show a Blockchain ID. They can use this blockchain ID to retrieve students' academic records and education history. National University Singapore offers classes on blockchain technology for students and has partnered with IBM. This is all done to get a program on distributed ledger technologies.

Airline Industry

Singapore is among the countries exploring which are exploring the potential of blockchain in the aviation industry. The blockchain allows stakeholders involved in air transport to access up-to-date and authentic information on departures, delays, and arrivals. Krishflyer is a Singaporean airline that has moved its loyalty and payment program to the blockchain and uses its digital wallet for transactions.

Government/ Public Sector

From voting to managing medical records from taxation to social benefits, governments around the world are thinking about blockchain. The countries are exploring ways to integrate it into their administration to revamp various operations.

As per reports, the Singapore government could use blockchain for numerous things. That is to verify a vendor's track record, track activities of public officers, and improve or modify the auditing processes.

Real Estate

Moving to another house is a tedious task as many administrators are involved in it. But in Singapore, real estate startup is relying on Blockchain technology to eliminate the administrator needed to rent or sell a property. Averspace is Singapore's first blockchain real estate portal, used to list properties for sale or rent. Transactions are carried out using digitized contracts protected by the blockchain. The platform allows landlords and tenants to sign the digital lease without paying commission fees.

Food Industry

The statistics provided by the World Health Organization show that each year almost one in ten people fall ill after consuming contaminated food. Implementing Blockchain technology in the food industry can give suppliers and consumers more authenticated information on food products. The Singapore Intellectual Property Intermediary founded by Singapore's Ministry of Trade and Industry worked on the blockchain food project. The platform will be used to track and trace the material and product information collected from all the participants involved in the food production chain. The blockchain solution ensures industry-leading data structure management and data storage standards that maintain food quality, and safety and reduces food waste.

Healthcare

SG Innovate is a Singapore government-owned tech company that has invested in MediLOT Technologies, a health blockchain and analytics startup in Singapore. It uses a dual blockchain with a unique layered architecture integrated with Artificial Intelligence and data analysis capabilities as well as control and data layers.

Energy

Electrify is a start-up established in 2017 that will revolutionize the energy sector. Julius Tab and Martin Lim, the founders of the startup, wanted to introduce Blockchain technology to change the way buy electricity. Using the web and mobile platforms, consumers can purchase electricity from retailers through smart contracts.

Supply chain

Blockchain-based supply enables the digital tracking of product information such as source data, storage temperatures, lot numbers, and shipping details. Compared to recent technologies such as RFID tagging, blockchain could be a great opportunity for any industry that wants to improve traceability and visibility throughout the business supply chain. One of the Singapore-based startups, DLT Ledgers, has created blockchain software for the supply chain industry. Additionally, the company receives the Best Blockchain App for Supply chain award by CXO Honour. DLT Ledgers guarantees that it provides end-to-end traceability records in an immutable and secure manner. Moreover, it helps to fight against product fraud with advanced mathematical algorithms.

Financial services

Blockchain technology is used in domestic payments, international remittances, and securities trading. Info-communications Media Development Authority and the various banks have come together to develop a prototype called KYC Blockchain. The blockchain would help various financial institutes and banks to verify the identity and details of their customers efficiently and transparently.

Conclusion

Operators of an NFT platform are recommended to seek professional legal advice from Singapore advocates from the outset to ensure that its business model complies with Singapore laws. Additionally, KYC integration, anti-money laundering, and counter financing policies should be put in place to detect suspicious transactions and mitigate these risks. Likewise, investors should be well aware that most NFTs are not regulated by the MAS, and the associated risks must be carefully weighted. Moreover, since NFTs are not pegged to fiat currencies, which inevitably leads to volatility in value, the investors' tolerance for losses must also be carefully considered.

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Sat, 11 Jun 2022 14:27:00 GMT
<![CDATA[NFT Regulations in Singapore]]> NFT Regulations in Singapore

Introduction

Non-fungible tokens or NFTs are presently one of the most popular technology trends in the world. Non-fungible means that this token cannot be exchanged as it is unique, and every token has a unique code and metadata stored on a digital ledger. The property that makes NFTs so popular and appealing is that these digital assets cannot be counterfeited and replicated. The ownership and authenticity of an NFT can be proved through the digital certificate issued on its purchase, and this digital certificate is generally encrypted on the blockchain.

However, a grey area exists regarding NFTs as in effect, there is a separation between the digital asset and the NFT. The NFT only signals towards the existence of an asset and may or may not be treated as an asset in itself. Therefore, the legal status of NFTs is ambiguous and unclear as one does not know whether the owner of an NFT would automatically be granted the ownership of the underlying asset.

The legality of NFTs in Singapore

In Singapore, no specific laws or regulations currently exist to regulate the sale and purchase of NFTs. The Monetary Authority of Singapore (MAS) is the regulatory body that issues and regulates the currency in Singapore. As MAS does not recognize cryptocurrency or NFTs as a form of legal tender in the country, they are not regulated by the laws issued by MAS.

In 2020, the Payment Services Act (PSA) was enacted to provide a legal framework for payment gateways, systems, and service providers. The Act defines digital payment tokens under Section 2 as any digital terms of value other than an excluded digital representation of value. These excluded digital representations of value are the digital representations of value prescribed by the Authorities as excluded. Even though NFTs are not explicitly excluded from the purview of PSA, they may be excluded as NFTS may fall under "limited purpose digital payment tokens," which are exempted from the purview of PSA. Furthermore, under the definition of digital payment token, the Act defined such a token as:

(a) one that may be expressed as a unit;

(b) is not denominated in any currency;

(c) is or is intended to be a medium of exchange that is accepted by the public as payment of goods and service;

(d) can be stored, traded or transferred electronically and;

(e) satisfied other conditions as prescribed by the Authorities.

In the case of NFTs, the biggest limitation is that they cannot be a medium of exchange like cryptocurrencies because each NFT is unique and one of its kind and hence, one cannot be exchanged for another. Further, the foremost aim of PSA is to prevent and detect money laundering and terror funding. Therefore, NFTs cannot be logically regulated under the PSA.

Despite the absence of any legal regulations for NFTs, many Singaporean artists have created and sold their digital artwork as NFTs. The sale and purchase of such NFTs are presently being governed by the smart contracts linked to such NFTs. Smart contracts entail the terms and conditions governing the creation, sale, and purchase of the NFT in question, and the contract is embedded on the blockchain. NFTs are generated through smart contracts, which verify the ownership and regulate the transferability of the NFT. Smart contracts are understood to be automated and enforceable agreements, having the same legal enforceability as traditional contracts in a common law jurisdiction such as Singapore. Therefore, while purchasing the NFT, the buyer should understand both the terms and conditions of the transfer and the terms and conditions enlisted in the smart contract in order to protect their ownership of the NFT.             

NFTs and Intellectual Property Rights

The buyer of an NFT does not automatically confer the intellectual property rights associated with the underlying asset. Such rights can only be acquired if an agreement is made in writing. In the absence of such an express written agreement, the intellectual property rights of the underlying asset will traditionally remain with the artist or creator of the NFT and not the buyer. The currently prevailing notion is that the sale of the NFT does not involve the sale of the actual underlying asset or any intellectual property rights associated with the asset.

For example, in the case of Jack Dorsey's tweet that was sold for over $ 2.9 million, it was clarified that the buyer of the tweet does not own the copyright of the same, and hence, they would have to seek permission before using the tweet itself. The copyright of the tweet would still be owned by Jack Dorsey and Twitter in this case. The platform, Valuables, wherein the tweet was auctioned, also expressly clarified that owning the tweet means purchasing a digital certificate of the tweet. These tweets were only collectibles, and no copyrights were conferred upon the buyer through the purchase of the NFT.

Therefore, the buyer of NFT cannot claim ownership of the underlying asset, and the buyer also does not own any intellectual property rights associated with the asset. The smart contract essentially only provides the exclusive rights to the digital unique identification code linked to the NFT. Hence, the asset or underlying artistic work will still mostly remain accessible to everyone. Although, in the case wherein a particular NFT is the only digital version of the asset or artistic work, the NFT would prove to be very valuable indeed.

Conclusion

NFTs likely continue to grow in Singapore and worldwide, given their popularity. However, the legal issues related to NFTs are complex and are currently ambiguous in Singapore in the absence of any specific laws and regulations to regulate the same. At best, these digital tokens can only be regulated through written, enforceable contracts presently. One may sue for breach of contract if the parties are situated in common law jurisdictions. Therefore, one needs to be mindful when entering the trade of NFTs.

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Sat, 02 Apr 2022 18:05:00 GMT
<![CDATA[Economic and Fraud Provisions in Middle East]]> Economic and Fraud Provisions in the Middle East

"There is one and only one social responsibility of business – to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud."

- Milton Friedman

Economic fraud is a term that has been repeated over the years, so much so that the consequences it bears do not have any precedence or impact on the ones that hear it. For many companies and capitalist machinery, this term essentially triggers them to explore options to hide their fraudulent tracks and continue operating in the same manner. To have governments help them cover the tracks in certain jurisdictions ultimately defeats the purpose of the assignment.

Despite the incongruent activities of individuals, companies, and governments from the expected norm of justice in many jurisdictions, other countries are tenacious to implement a regulatory framework that will eradicate such fraudulent activities in the market. This article will discuss the economic and fraud provisions established in the Middle East, their effectiveness, and the scope of reach it possesses about financial crime.

What are the Economic and Fraud provisions in the Middle East?

If one area of the economy has seen a steady increase in the past years, it would be the economic fraud prevalent in society. Regardless of the number of provisions that jurisdictions and international organizations establish to combat financial fraud, none of them seems sufficient. The parties involved in economic fraud and other fraudulent practices are constantly evolving to cover their tracks efficiently.

Infamous scandals like Bernie Madoff and the Ponzi scheme leave one in absolute awe as it remains unclear, what is the culprit: the crime or the criminal? Many innocent parties, including employees and clients, were adversely affected by the ill-doings of these financial schemes. After the outburst of many scandals and its impact on many innocent individuals, jurisdictions are trying to fasten their pace to stay a step ahead of wrongdoers and hopefully eliminate the potential threats in the market.

The introduction of new anti-economic fraud regulations has paved the way for potential investors to feel a sense of security over their investments within the market, along with the ability of the regulations to enforce justice. Over time, people have understood that the formation and establishment of an anti-fraud legal framework are not sufficient to ensure peace and harmony in the market, an iron fist must be imposed on fraudulent parties and companies to deter them from doing such activities in the future and serving it as a lesson for other participants in the market who bear similar intentions.

The types of economic fraud can be quite varied and are spread across different industries and the scope of nature. These could include housing benefit fraud, tenancy fraud, council tax fraud, blue badge fraud, social care fraud, business rates fraud, insurance fraud, bribery, and money laundering. These are just a top layer of economic crimes prevalent in an ocean of fraudulent activities in the market. The crimes that are more coherent to the wrongdoings in the market include not declaring the business location, stating that a property is not in use while it is, dishonestly requesting for an exemption to pay for charges that are owed, or any unauthorized movement of money to make ill-gains.

Often, economic crime is caused not by companies but by customers towards companies. The highest reported crime boost in the Middle East is through customer fraud and procurement fraud, which have proved to be the most disruptive fraud within an economic crime. In a survey conducted on a global platform, the number of customer frauds was comparatively more in the Middle Eastern region.

In an ongoing effort to combat fraud together, many companies in the Middle East began investing in more stringent controls and implementation of the rules to avoid economic crime, while many others conducted a thorough examination into reasons after the occurrence of a crime in the company. Another issue that stands alongside customer fraud about its prominence is procurement fraud. This fraud entails the practice of favoring associates with vendor and supplier contracts.

All these efforts are measures taken to mitigate the risks involved and ensure that proper prevention is taken by instilling the right technology and talent to deviate from any fraudulent prone routes.

However, it is not easy to ensure that accountability will be maintained and transparent feedback is provided. Another limitation of this procedure is that advanced technologies to combat financial crime can be costly, which would further deplete if the company possesses insufficient resources to acquire and install the platform and is not equipped with properly trained employees to manage the technology. The lack of proper expertise to handle the in-place technology could attract various cyber threats, which allows a wrongdoer from any part of the world to infiltrate the company's system.

With this in mind, companies must equip themselves from the arsenal of defenses to protect themself and the financial and reputational facets of the company. The extent of damage that infiltration of the company's system can cause to the operations is quite unfathomable. It would be better for companies to leave their vault of secrets wide open than installing an IT platform that is managed poorly. The necessity of combating such insecurities is proliferating and must be countered at the earliest. One would like to believe that the efforts of the legal jurisdictions in the Middle East to battle economic crime are practical and promptly applied. However, many of the jurisdictions still fail to provide a proper implementation of the provisions established against economic crime.

The readiness of companies in the Middle East to confront the indecisive nature of economic crime and report any issues as they arise is still moving at a stagnant rate. The stark increase in cyberattacks and its potential threats is not a mystery to the companies in these regions. Nevertheless, they decide against preparing themselves in defense of such risks and attacks. The firms in the region and the governmental organizations must understand the types of threats that could arise in the economy and the nature of such economic crimes. Although this would seem like an insignificant step, this particular action could help achieve a more profound revelation of the gaps and vulnerabilities of the economy and its protective framework.

Many would argue that the relationship of the Middle East with economic crime and fraud dates back ages. All the glitz and glamour and the boom of economies are incongruent with the fraudulent activities occurring within the firms and regions. A region's legal systems cannot enforce the regulatory frameworks established to fight against economic crime if the country's government does not implement the rulings.

To know more about Economic and Fraud Provisions in the Middle East in Singapore Click here 

 

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Thu, 30 Sep 2021 14:28:00 GMT
<![CDATA[Bankruptcy in Singapore]]> Bankruptcy in Singapore

"I declare bankruptcy!" -  Michael Scott

Whenever an individual becomes unable to pay his/her debts, his/her creditors may choose to file for bankruptcy against him/her. According to Section 61 of the Singapore Bankruptcy Act of 1995, if anyone owes someone may it be an individual or even a company more than 15,000 Singaporean Dollars, owns property in Singapore, has lived / carried on business in Singapore within one year of the suit of bankruptcy &  is unable to pay off their debts, the suing party ( creditor) or the bankrupt person him/herself  may  file for bankruptcy and may begin the application for the same.  The Court would then impose a bankruptcy decree, and an Official Assignee will be appointed to handle the bankrupt person's assets.

The bankrupt individual's property is overseen by the Official Assignee. They investigate the bankrupt individual's finances and retrieve the individual's properties so that they can be transferred to their lenders. The Official Assignee also supports the bankrupt client in securing a bankruptcy discharge.

Bankruptcy has various consequences in certain aspects of a person's life:

  • The declaration of bankruptcy will be made public knowledge.

Once declared bankrupt, the person's name would be inserted into Singapore's bankruptcy registry, which everyone, including prospective employers, lenders, customers, and the general public, can freely browse. 

  • A reported bankrupt may continue to work, but not in positions of high authority.

Despite popular belief, individuals in bankruptcy may continue to work. However, a portion of their pay will be reduced and repaid to their bankruptcy dues. Bankrupt individuals are not permitted to be included in managing a company or serve as a director of a firm until a prior approval has been given by the Official Assignee or by the Court.

  • Credit rating would suffer greatly.

Bankruptcy will lower the credit ratings, and credit bureaus will continue to record loan defaults for three years after the settlement date & bankruptcy reports for five years after the date of discharge. This would have a negative impact on the ability of the individual to qualify for mortgages, credit cards & loans in the prospective future.

What happens in Bankruptcy?

  • Exempt from Repayment Demands   & Suits 

Prevailing creditors are prohibited from taking court action to recover debts against the bankrupt individual until they are declared bankrupt. Furthermore, the person is  not required to comply with any repayment requests made by the creditors.  Instead, repayment plans for bankrupts are customized to the financial capacities of the individuals by an Official Assignee, hence, relieving of creditors demands. This is as per section 21 of the Act

  • Payments on  a monthly basis 

To be liable for discharge during bankruptcy, the individual must make a minimum amount of monthly payments also known as target contributions. Each donation is intended to be a fair sum calculated by the Official Assignee based on a number of criteria, including: For example, the salary and qualifications, as well as that of the partner (if applicable), the expected household bills & the current economic conditions as per section 86A (2) of the Act.

  • Disposal of Assets 

The Official Assignee would also liquidate the assets and transfer the proceeds to the current creditors. This could include almost every valuable item one possesses, including potential overseas assets. The bankrupt individuals may face felony charges if they hide, dispose of, or flee with those properties or falsify similar documents.

The Official Assignee, on the other hand, would not sell "protected assets." "Protected assets" are assets that are essential for business or personal needs, such as Central Provident Fund savings or Housing Development Board flats as given in the case AVM v AWH [2015].  Both are held to protect the bankrupt from being paralyzed by the bankruptcy and to keep you capable of managing your upkeep. Unfortunately, these assets are always in scarce supply.

  • Limitations On Conduct Imposed

The Bankruptcy Act, 1995 also places significant limits on a bankrupt's day-to-day behavior. Bankrupts, for example, can face penalties and incarceration if they bet or receive credit of at least 1,000 Singaporean Dollars without declaring their bankruptcy status.  Participating in the running of a company (the "business restriction") and commuting (the "travel restriction") would both necessitate the permit by the Official Assignee. 

Even if the bankrupt disagrees with the official assignee's unwillingness to give approval, it is preferable to petition the court to reconsider the official assignee's decision (as per section 31 of the Act) rather than disregarding the restrictions entirely. This is because a breach of the Bankruptcy Act's restrictions could result in criminal charges make & further clearance more difficult to achieve.

  • Procuring Discharge 

The restraints and sufferings of bankruptcy, nevertheless, would mostly be released upon discharge. While bankrupts will also be required to work with the Official Assignee to settle any unpaid debt after discharge, they are usually free of the constraints mentioned in the Bankruptcy Act 1995. As such aside, discharge is often misunderstood to be permanent at the three-year period of bankruptcy. In fact, it would only be issued by the Official Assignee or the High Court (as per Section 124 of the Bankruptcy Act of 1995) if certain requirements have been met, namely –

  •  Discharge By Official Assignee's Approval 
  • A first-time bankrupt with recorded debts of less than 500,000 Singaporean Dollars may be released by the Official Assignee three to seven years after declaring bankruptcy. A serial debtor, on the other hand, needs at least five to nine years. Under this range, bankrupt individuals who have fully recovered their target contributions will be released sooner, i.e.  three to five years for the first timers& five to seven years for serial bankrupts. This is given under section 125(2)(a) & section 125(2)(b) of the Bankruptcy Act of 1995.

    As a result, regular payment of the target payments/contributions would greatly accelerate an individual's discharge from bankruptcy.

  • Discharge Through an Order by the High Court 
  • Optionally, a bankrupt with recorded debts in excess of 500,000 Singaporean Dollars can petition the High Court for an Order of Discharge. The High Court would then make a judgement by considering both the bankrupt's and her/his creditors' rights & interests.  In this respect, in addition, the court would be hesitant to release bankrupts that have breached restrictions imposed by the Bankruptcy Act, because these bankrupt individuals would fail to collaborate with the Official Assignee& cease payment efforts after discharge.   However, due to problems of maintaining repayment at their age, the court can sympathize and hence discharge older bankrupt individuals.

    Concerns Post - Bankruptcy 

    But if discharge is given, it cannot be unconditional. For example, if there is still unpaid debt after the release, the court can order the bankrupt to vest recently purchased assets with the Official Assignee for further redistribution to creditors. This ensures that the Official Assignee retains leverage of the newly bought assets and will sell them to pay off the debts of the bankrupt.

    If the bankrupt individual disagrees with those terms, they should first meet with the Official Assignee before proceeding to court to determine the feasibility of the concern. This will undoubtedly reduce time & expense for the those involved. 

    Unfortunately, even after discharge, the burden of bankruptcy can last for a long period of time. Discharged bankrupt individuals who have completely paid off their target contributions will have the bankruptcy history deleted for five years post discharge. Alternatively, these accounts are irreversible for other discharged bankrupts' individuals who have not settled their target contributions. This is given in Section 163(1C) of the Bankruptcy Act 1995. This publicly available documents can pose a problem for prospective employers and borrowers alike, hence being a social stigma.

    Conclusion

    The worries of bankruptcy can appear interminable. Bankruptcy would undoubtedly be a debilitating time for the bankrupt, from the number of restrictions regulating daily behavior to the exhausting necessity of monthly payments. Furthermore, the unforeseen consequences of bankruptcy after discharge may contribute to the individual's   concerns.

    That being said, there is always hope for a better future. Given the statute's rehabilitative objective, the Official Assignee & the High Court will weigh a variety of factors affecting  the individuals' financial skills and & needs in their actions in order to help facilitate  financial rehabilitation.

    Furthermore, constructive conduct, such as adhering to statutory conditions and continuing payment efforts, could lead the individual to additional allowances. This may involve running a company, traveling, or even hastening discharge from bankruptcy. Therefore, while bankruptcy is difficult, it is not survivable.

     

     

     

     

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    Sun, 04 Jul 2021 18:04:00 GMT
    <![CDATA[joint venture laws of India UAE Singapore]]> Comparison of joint venture laws of India with UAE and Singapore

    For a long time, one of the main fields of concern for economists all over the world has been the industry. With money on the line, people are always looking for new ways to increase income; whether it's a street-side sole proprietor with a lakh in capital or multibillion-dollar corporations, business is almost always profit-driven. In this age, as it is becoming increasingly difficult to survive the market's fierce competition on one's own, two or more people motivated by a shared purpose often band together to realize their true potential. A joint venture is a term used to describe a planned operation like this.

    A joint venture initiative is a business agreement in which two or more parties agree to pool their resources in order to complete a particular mission, which is usually related to business. The parties form a symbiotic relationship that helps both of them as a result of their coming together. One may have financial resources, while the other has technical expertise. Individually, they will never be able to achieve their goals, but in a healthy partnership, using each other's skills, joint-ventures often achieve their objectives.

    Joint venture Laws in the United Arab Emirates

    Joint ventures are used by many foreign investors to penetrate the Middle East market (JVs). The reasons for this range from an international investor's willingness to partner with an entity/individual who understands the local/regional market to foreign ownership restrictions in some Middle Eastern jurisdictions, which require that a local company's shareholding involve a local/national shareholder.

    Structure of the Joint venture:

    One of the most important considerations to make when deciding on the structure of a JV is whether the parties will operate it by mutual agreement or whether they will jointly own and form a separate legal entity, usually in proportion to the contribution each is making (i.e., through a joint venture company (JVC)).

    The essence of the JV and the parties' intentions also decide whether a contractual agreement or a JVC (usually a limited liability company) is the most suitable structure.

    Contractual contracts, on the one hand, and JVCs, on the other, all have advantages and disadvantages. The key benefit of a contractual JV agreement is that it can be customized to a single project and wound up reasonably easily after that project is completed. This may be attractive to prospective foreign entrants to a jurisdiction, who may be entering the market to tender for a particular project and do not want to be bound to a company's ongoing costs (e.g., annual registration fees). Similarly, forming a JVC allows JV partners to have limited liability and to pass any shareholder's interest in a much more structured way than is always possible with a contractual JV.

    Share ownership restrictions:

    Many Middle Eastern countries have limits on who can buy company shares. In the United Arab Emirates (UAE), for example, a company must be owned by UAE nationals at least 51 percent of the time. As a result, any foreign investor entering into a corporate JV in the Middle East should be aware of any such constraints.

    In order to acquire a controlling shareholding in a JVC in the UAE, many foreign investors have entered/set up in one of the economic free zones (where a business can theoretically be 100 percent owned by a foreign person/entity). Setting up shop in a Free Zone, on the other hand, has its drawbacks, not least the fact that the JVC is only permitted and allowed to operate inside the Free Zone in which it is incorporated, not in the rest of the UAE, other Free Zones, or other Middle Eastern jurisdictions.

    The press regularly reports that authorities in a number of Middle Eastern countries (including the United Arab Emirates and Saudi Arabia) are considering loosening foreign ownership restrictions in order to keep the region appealing to foreign investors (particularly in light of an era of global economic uncertainty and low crude oil prices). If this happens, it will certainly boost foreign parties' negotiating position in JV agreements.

    The investment's nature:

    The type of capital investment made by the parties to a JV can have an effect on the timing and ease with which a JVC can be established in the Middle East. Typically, parties must choose between injecting funds through capital (i.e., purchasing shares) or shareholder loans. In our experience, JVCs in the Middle East are typically undercapitalized, and potential capital injections are often made by shareholder loans. In other parts of the world, the essence of the shareholder capital contribution is influenced by tax considerations and investment implications. In practice, it is easier to invest in the Middle East through loans rather than shares, not least because raising a local company's share capital can be a lengthy process that sometimes requires the parties to schedule meetings with notaries to amend constitutional documents. Furthermore, when a JVC requires a rapid injection of cash, such as when it is in financial distress, injecting money through loans is faster and more efficient than increasing a JVC's share capital, which can take months.

    In the Middle East, parties to a JV often contribute a facility, intellectual property, or a specialist asset (particularly those in the technology, media, and telecommunications industries). When the JV is wound up, the contributing shareholder may want to ensure that the asset is solely retained/returned to them. Exit-mechanism clauses guarantee that the asset is always returned to the contributing shareholder, but the price paid for that asset is dictated by the circumstances that contributed to the exit (For example, if a contributing shareholder breaches its JV agreement obligations, it will be penalized by having to pay a premium for the asset that will be returned to it).

    Governance and management structure:

    The governance and management structure of a JV is largely determined by its structure (i.e., whether it is contractual or a JVC). A JVC's management is also governed by a board of directors, who have ultimate legal responsibility for the company. The parties' agreement on the appointment/removal of the JV's main management team, such as the CEO and CFO, is also spelt out in the JV agreement.

    Certain matters can be reserved for consideration by the parties in the JV agreement, regardless of nature/size/composition of the JVC's management team and board of directors. It is important for parties to understand which matters and privileges that can only be performed with the approval of shareholder by law in the relevant jurisdiction in order to avoid lengthy negotiations between the parties on what would constitute the list of reserved matters that need shareholder approval (Changing the company's constitution or winding it up, for example).

     

     

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    Wed, 28 Apr 2021 00:00:00 GMT
    <![CDATA[Singapore Convention on Mediation]]> The Singapore Convention on Mediation

    "An ounce of mediation is worth a pound of arbitration and a ton of litigation!"

                                                                                              - Joseph Grynbaum

    Introduction 

    Mediation is a fairly underrated process of dispute resolution as compared to arbitration. Corporations and individuals choose arbitration instead, overlooking the many benefits that can be derived out of mediation. The mechanism used to settle your dispute is the key difference between mediation and arbitration. 

    On the one hand, mediation allows settlement of dispute amicably between the parties and is a non-binding process, while on the other hand, arbitration is binding. 

    Sometimes parties go through a shaky patch which does not necessarily call for a lawsuit but merely require a mediator to advise them on how to go around the dispute at hand. As compared to litigation, mediation allows parties to come together in an environment where they can freely present their position, along with the advantage of keeping their dispute confidential. 

    In modern times, mediation is gaining immense popularity because of its cheap, easy and quick nature of dispute resolution. Though not binding, it allows parties to reach a settlement amicably, which can be advantageous in cases of minor disputes. Therefore, efforts are being made by countries to promote this means of dispute resolution. 

    One such effort in unifying the mediation process into one cohesive framework is the Singapore Convention on Mediation. This Convention aims to facilitate international trade and business by affording parties an opportunity to invoke dispute resolution process across borders. 

    The Singapore Convention on Mediation is a multilateral treaty; it aims to provide an efficient framework to its signatories to resolve international commercial disputes. This treaty can be seen to draw a similarity to the New York Convention that was signed with respect to arbitration. 

    Further, just like arbitration has become so widely used for solving commercial disputes, this treaty aims to promote the use of mediation in the same way. The absence of a cross-border process to provide legal force to negotiated settlement agreements is considered to constitute a major obstacle to the ability of some organizations to use mediation.

    The need for this Convention was seen when the UNCITRAL noticed that mediation settlements are harder to enforce in the domestic as well as the international sphere. In some jurisdictions, many businesses find it difficult to persuade their business partners to participate in mediation based on the perception that it lacks a stamp of international legitimacy, such as the New York Convention. The introduction of this Convention will allow companies to successfully conduct mediation proceedings. Further, it will also serve as an added alternative to litigation and arbitration. 

    Key Features 

    Having said that, we can say the Convention has the following features:

  • The parties should conduct business in two different states.
  • The Convention offers a consistent and effective procedure to implement the terms of that agreement in other jurisdictions for parties who have agreed to a negotiated settlement, in the manner that the New York Convention does for international arbitral awards.
  • Further, the Convention can be invoked as a defense to claims that have already been settled. 
  • There are certain matters that are excluded from the ambit of the Convention, such as arbitration awards and court judgments that involve employment, family and inheritance matters.  
  • How can the Convention be enforced?

    The party that is seeking enforcement of the Convention has to provide the following to the relevant authority:

  • A copy of the mediation settlement agreement; the agreement must be signed by both parties.
  • Any such document that serves as evidence of the mediation settlement.
  • The authority whose ratification is sought for enforcement shall then expeditiously consider the enforcement application. Further, there may be cases in which the authority can reject the enforcement of the settlement. Those circumstances are as follows:

  • In any case where the parties were under some incapacity, or the settlement agreement was rendered null and void due to some unavoidable circumstance.
  • The settlement agreement has been modified, or have the terms of such a settlement be rendered not binding. 
  • In any case, where granting relief would be against public policy or the relief would be contrary to the terms of the settlement agreement.
  • Further, the enforcement can be rejected in case there was a conflict of interest that became apparent on the part of the mediator-basically, showing that the mediator was impartial. 
  • Important Provisions 

    The Convention constitutes 16 Articles that lay down the provisions required to be adhered to, to avail mediation. Some important provisions are:

  • The scope of application (Article 1); this Article lays down the requirements that must be fulfilled for parties that wish to avail enforcement of a settlement under this Convention. The requirements are:
  • The parties to the settlement agreement must have businesses in different states.
  • The state in which the parties have their places of business should either be in a place where they perform a substantial part of their business or the place where the subject matter of dispute has arisen.
  • It also lays down the settlements that do not come under the ambit of the agreement.

  • Personal, family, employment, inheritance issues.
  • Any settlement agreement that has arisen out of a court's judgment and is enforceable as a judgment in that state where it was pronounced.
  • Settlements that have been recorded as an arbitral award. 
  • Requirements for reliance on settlement agreement (Article 4), which basically implies its enforcement, as has been previously discussed. 
  • Further, it is also important to keep in mind the grounds for refusing to grant relief as under Article 5 of the Convention.
  • The fact of a parallel application implies that the existence of a settlement made through an arbitral award or a judgment (Article 6).
  • The treaty also allows signatories to have their reservations with respect to the application of the treaty. They may choose whether or not they want a particular section to apply to their country in specific. 
  • Implications of the Convention 

    The Convention has come into force at the right time, considering the need for speedy and cost-effective methods of dispute resolution. The pandemic has impacted civil litigation in such a way that parties are forced to look for and resort to alternative methods of dispute resolution. 

    The Singapore International Mediation Center (SIMC), in May 2020, gave rise to a SIMC Protocol. This protocol aimed to provide a swift and inexpensive route for the resolution of commercial disputes during the pendency of the Covid-19 virus. This system would be introduced to expedite the mediation process through virtual means. Further, it also aimed to organize the mediation settlement process within ten days of filing an application for settlement through mediation. 

    The UK Government Cabinet Office also strongly encouraged the use of alternative means of dispute resolution such as this. Further, even the Scottish government is seeking to integrate the mediation system within their domestic system of dispute resolution as a responsible means to attain civil justice in these times of need. 

    Further, for the first time in years, the LCIA has noticed the need for an amendment of their rules with respect to mediation. The Convention has, therefore, created a whirlwind of change in the atmosphere surrounding mediation, further facilitating the growth of mediation globally by making it more accessible and cost-efficient for its users. 

    This Convention, therefore, has served as an effective means to promote mediation globally. Further, it not only provides the machinery to facilitate settlement but also lays down provisions for its enforcement. 

    The pandemic has urged more and more states to ratify this treaty and therefore assures that it will become a means that will be available to jurisdiction across the world. 

    Challenges 

    Despite its advantages, there are certain challenges that the implementation of the Convention may face. 

    Considering that the settlement by mediation has to be enforced under domestic law poses a threat to the confidentiality of the mediation agreement between the parties. The crux of any mediation agreement between parties is the fact that it is confidential in nature. This enforcement procedure may cause some hurdles in carrying out the process in the first place, considering that the mediator may show reluctance to carry out such a settlement. 

    Further, the Convention is not yet globally ratified and accepted. This means that mediation may be rendered useless if there is no domestic mechanism to enforce it. 

    Moreover, there is an absence of rules and regulations that regulate the conduct of mediators. This lack of international standards of regulation may serve as a hurdle. The mere fact of self-regulation on the mediator's part cannot be depended on without a written set of regulations. 

    Some concerns may also be raised regarding the enforcement of domestic law in terms of the solution that is suggested by the mediator. For instance, if the solution suggested by the mediator goes beyond the ambit of the court's rules, the enforcement will be rendered null and void, and the parties will ultimately have to resort to arbitration or litigation for resolution. 

    The success of the Convention can only be determined when it becomes completely harmonious with the local laws of any specific jurisdiction. In any case, where the local laws do not agree with the mediation convention, its implementation will become impossible. 

    As of March 2020, the UK, Australia and the EU remained absent from the signing of the treaty. These major countries remaining absent from the treaty may serve as an impediment to the countries conducting business with these countries since it will bar them from utilizing the mediation process for settlement. 

    KSA's Ratification 

    Saudi Arabia signed the treaty on 7 August 2019. However, it only ratified it on 5 May 2020. Saudi had certain reservations with respect to the enforcement of the Convention wherein it was declared that the treaty would not apply to settlement agreements that were signed by government agencies or any other person acting on behalf of the government agency. 

    There are around 53 signatories to the treaty, which implies that the treaty is an operation to any agreement signed between parties that reside within the territory of these states. 

    In the wake of the Covid-19 pandemic, it has become especially difficult for parties to conduct litigation proceedings because of a lack of funds. This lack of funds pushed Saudi to adopt the Convention so as to provide businesses with a cheaper, cost-effective medium of dispute resolution. 

    Further, by further promoting cross-border conflict settlement, the Convention is expected to further improve the efficiency and efficacy of global trade. It recognizes that the use of mediation results in considerable advantages, such as minimizing cases where a conflict contributes to the termination of a contractual partnership and, in effect, creates major savings in the administration of justice by States.

    In line with the Convention, Saudi has also launched a national Covid-19 Emergency Mediation Program by the Saudi Center of Commercial Arbitration (SCCA). This program basically allows parties to enforce their international mediation settlement agreements. 

    This program also acts as a way to facilitate both international as well as domestic mediation. The SCCA has further, even reduced mediation fee in line with the economic crisis due to the pandemic; it also allows parties to conduct mediation proceedings on a virtual basis. 

     

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    Sun, 07 Mar 2021 09:07:00 GMT
    <![CDATA[Income Tax Act– Singapore]]> Amendment of Income Tax Act– Singapore

    What is the Tax System in Singapore?

    The tax revenue collection in Singapore includes corporate tax, personal tax, Goods & Services tax, and property tax. The tax system in Singapore is one which many countries thrive on echoing as it is known for being simple, efficient, and attractive due to its clearly laid down tax provisions. Despite charging low tax rates to businesses and individuals alike, Singapore consistently generates budget surpluses and develops an excellent infrastructure.

    Singapore is an important finance, commerce and trading hub of Asia. Singapore attracts foreign investments to its shores. It implements socially progressive policies as Singapore believes in rewarding its residents.

    Inland Revenue Authority of Singapore is the main government agency that levies and collects the taxes and also represents Singapore in international tax treaty negotiations and aids the Government in drafting tax legislations.

    What makes Singapore more beneficial compared to other countries in field of taxation?

  • The single-tier taxation system;
  • No tax on overseas income;
  • No capital gains tax;
  • No dividend income tax;
  • No tax on assets acquired in inheritance or as gifts; and
  • The extensive network of bilateral treaties on Avoidance of Double Taxation.
  • The Singapore Ministry of Finance (the "MoF") proposed 38 amendments to the Income Tax Act (the "IT Act"). The main objectives of the amendments are: 

  • effecting tax measures announced in Budgets 2020; 
  • enhancing the Income Tax Comptroller's powers for safeguarding public money; 
  • clarifying the tax treatment of measures announced for COVID-19 support to businesses and households; and 
  • improving tax administration and the clarity of existing legislation. 
  • On 20 July 2020, the MoF launched a public consultation, which ran until 7 August 2020, on the draft Income Tax (Amendment) Bill 2020 (the "Draft Bill"). 

    The Draft Bill incorporates 38 proposed legislative amendments to the IT Act which can be categorized under:

    I. Unity Budget 

    This includes twenty proposed amendments to cater for measures announced by the Deputy Prime Minister and Minister of Finance, in the Unity Budget Statement on 18 February 2020. 

  • Granting Corporate Income Tax Rebate. 
  • The main aim here is to help companies with cash flow, with a Corporate Income Tax Rebate of 25 percent of the tax payable, capped at USD 15,000 per company, to be granted for Year of Assessment 2020.

  • Increasing the number of Year of Assessments
  • The qualifying deductions, including both the current year unabsorbed capital allowance and the trade losses for the Year of Assessment, may be carried back. The qualifying deductions for Year of Assessment 2020 may be carried back up to 3, instead of 1, immediate preceding Year of Assessment, capped at USD 100,000 of qualifying deductions. The businesses are eligible to get a refund of maximum USD17,000 corporate tax paid during Year of Assessment 2017 to Year of Assessment 2019.  

  • Extending and enhancing the Double Tax Deduction for Internationalization
  • Singapore aims to continue encouraging internationalization by covering more qualifying expenses and extending the Double Tax Deduction Scheme until 31 December 2025.  

  • Extending the Mergers & Acquisitions 
  • Singapore aims to continue encouraging companies to consider Mergers & Acquisitions for growth and internationalization, by extending to cover qualifying acquisitions made on or prior to 31 December 2025.

    II. Economy-wide and sector-specific measures in response to the COVID-19 in the Resilience, Solidarity, and Fortitude Budgets

    The five proposed amendments provide for the following: 

  • Exempting from income tax the prescribed payouts received by individuals in 2020 for Year Assessment 2021, including the Self-Employed Person Income Relief, Workfare Special Payment, and COVID-19 Support Grant.
  • Exempting from income tax the prescribed payouts received by businesses in 2020 for Year Assessment 2021 and/or Year Assessment 2022, depending on the financial year-end of the businesses, including the Jobs Support Scheme payouts, COVID-19 Quarantine Order Allowance, Leave-of-Absence and Stay-Home Notice payouts to affected Self-Employed Persons and employers.
  • Exempting from income tax for Year Assessment 2021 on benefits-in-kind and cash allowances received by qualifying employees in the year 2020 including for accommodation, food, transport and other necessities, subject to conditions and caps.
  • Lifting the tax deduction caps for doubtful debts and debt securities for banks and qualifying finance companies for Year Assessments 2021 and 2022.
  • Amending the secrecy provision to permit access to information vital for the Inland Revenue Authority to administer public schemes, without requiring the express consent of the person to whom the information relates. The Comptroller is allowed to provide the information necessary for administering any public scheme to the Chief Executive Officer or the authorized officers.
  • III. Other proposed amendments

  • There are six proposed amendments concerning the existing tax policies and administration.
  • Introducing a surcharge for tax avoidance arrangements
  • The tax adjustments currently made under the anti-avoidance rules only restore the taxpayers to their initial position, as if no arrangement was entered into. As a step to further deter tax avoidance arrangements, the amendment introduces a surcharge equal to 50 percent of the additional income tax imposed by the Comptroller. Singapore has also proposed to introduce a surcharge equal to 50 percent of the amount of additional stamp duties imposed by the Commissioner in the Stamp Duties Act along with an amendment in the draft Goods and Services Tax (Amendment) Bill 2020. The above is a result of the adjustments made to counteract the tax avoidance arrangement.

  • Mandating the electronic tax refunds
  • The refunds of Corporate Income Tax to the companies will be done electronically. This is complementary to the Government's efforts to harness digital technologies in transforming public service. Mandatory electronic refunds of Goods and Services Tax to taxpayers will be proposed in the Goods and Services Tax (Amendment) Bill 2020 as well.

  • The remaining seven proposed amendments are technical amendments.
  • Tax Deductions

    Any expenses incurred directly or as reimbursement on using private hire cars or private cars are not eligible to be deductible from tax, irrespective of the private cars being used for personal or business purposes. For private cars, capital allowances are also not permitted.

    What are the exceptions to this?

    The private hire car expenses and hiring charges are tax-deductible to a person provided the person has a business of hiring out cars, and the private hire car is used by the person principally for hiring. The capital allowances can also be claimed on a private hire car provided it is acquired by a person who has a business of hiring out cars and is used by the person principally for hiring.

    The Draft Bill permitted the deduction of car-related expenses and capital allowances, on cars used in the business of providing chauffeur services, to any person from any business of providing chauffeur services using motor cars, provided the specified conditions are complied with. However, the chauffeur services may no longer be provided as incidental to the main business of renting out cars, so the proposed change shall be effective from Year Assessment 2021.

    Conclusion

    Singapore's tax regime balances the incentives and promotes free trade and commerce activity while ensuring that sufficient revenue flows to meet its social and economic objectives. The country has always been known for the mutually beneficial relationship it shares with its residents.

    It is this why Singapore has one of the highest rates in the world for tax compliance from domiciled companies as well as its residents.

     

    ]]>
    Wed, 09 Dec 2020 13:42:00 GMT
    <![CDATA[Insolvency and Restructuring in Singapore]]> Insolvency and Restructuring in Singapore

    Introduction

    Singapore is not only an attractive tourist and shopping destination. On 23 May 2017, the Ministry of Law (Singapore) officially amended the Companies Act of 1967 with certain provisions to simplify the restructuring companies' debts. The South East Asian country became a potential indebtedness restructuring hub. To transform Singapore into the regional and international insolvency and restructuring forum of choice, the Singapore Companies Amendment Act of 2017 was enacted.  

    General Overview

    Restructuring refers a process wherein debtors and creditors agree on a proposed method for a debtor who is in financial trouble to repay a debt, without the debtor becoming insolvent. Restructuring entails making significant modifications to debts, and alternatively, the operations or structure of a company with its creditors' consent. Debtors and creditors in such a situation must agree on negotiating agreements and repayment schedules. The purpose of restructuring is to facilitate debt repayments, which may divert the entity in financial trouble away from insolvency proceedings. 

    Insolvency law refers to the legal guidelines outlining the process through which businesses and individuals who have encountered financial difficulties and are struggling to pay their debts are to follow. Insolvency proceedings involve the instituting of legal action against an insolvent entity. Insolvency proceedings encompass a wide array of processes that are purposed to rescue or wind up a bankrupt company.

    The insolvency process involves negotiating scheme arrangements. This is a legally binding agreement concluded between a struggling company and its creditors. Scheme arrangements are concluded if it is certain that a reduction in debt repayments can rescue the company. Apart from voluntary company agreements, insolvency proceedings also involve administration. Under administration, an administrator manages the company's affairs. Administration protects companies from creditors who would enforce their debts. The administrator has the task of determining whether a company can be rescued or not. If the administrator is confident that the company can be saved, the administrator will create a recovery plan and implement it. A recovery plan aims to ensure that a company maximises profits. If the administrator is satisfied that the company's financial affairs cannot be salvaged, then the company will be sold. Alternatively, the administrator may elect to liquidate the company. The liquidation procedure involves giving a liquidator control of the company's assets. Once the liquidator has power over the assets, the company ceases to carry on business. The liquidator will then sell the company's assets and distribute the proceeds amongst the creditors.

    Insolvency proceedings also include a process name receivership. Receivership is a process through with a receiver is appointed by the court at the initiative of the company's creditors. The receiver is tasked with recovering as much money as possible from the company to settle creditors' claims. Receivership is advantageous to creditors but places the company in a precarious position where survival is unlikely.

    Overview of Singapore's Insolvency and Restructuring Legal Regime

    The Singapore Ministry of Law convened the Insolvency Law Review Committee in 2010. The purpose of the Insolvency Law Review Committee was to review the Singapore legal regime surrounding bankruptcy and corporate insolvency regimes. The Insolvency Law Review then submitted a report in October 2013, which outlined suggestions to the corporate rescue mechanisms. The Insolvency law review also recommended that the UNCITRAL Model Law on Cross-Border Insolvency be enacted into Singapore law through a single consolidated Insolvency Act. The Ministry of Law then constituted a Committee to strengthen Singapore as an International Centre for Debt Restructuring (CSSICDR). The task of the Committee was to suggest a way to enhance Singapore's effectiveness as a centre for international debt restructuring. In April 2016 the  ILRC Committee issued a report set out seventeen recommendations.  

    The two reports, by the Insolvency Law Review Committee and the Committee to Strengthen Singapore's bankruptcy and corporate insolvency regime led the Ministry of Law to update and strengthen Singapore's Insolvency and Restructuring law through a three-stage approach. The first stage was the Bankruptcy Amendment Act 2015 (Act 21 of 2015). The Act is an amendment to the Bankruptcy Act. The Amendment Act regulates personal insolvency based on the suggestions in the Insolvency Law Review Committee of 2013. The second stage was the Companies Amendment Act 2017 (Act 15 of 2017), which was enacted in May 2017. The Amendment Act updated the corporate restructuring and insolvency framework based on recommendations in the report by the CSSICDR report.  The third and final stage was the Omnibus Bill or the Insolvency, Restructuring and Dissolution Bill, which aims to implement the remaining recommendations contained in both the ILRC and the CSSICDR reports.  

    Singapore Companies (Amendment) Act of 2017

    The purpose of the changes to the Singapore Companies Act is to encourage transparency about the ownership and control of the company, reduce regulations, facilitate ease in business and simplify the restructuring of a company's debt.  The Amendment Act governs Schemes of Arrangement in terms of section 211, Judicial Management in terms of section 227, winding up of a foreign company according to section 351 and cross border insolvency according to section 354 A-C and Schedule 10.

    As stated above, a  scheme of arrangement or scheme of reconstruction is an agreement concluded between a company facing financial hardship and its creditors. The purpose of a scheme of arrangement is to assist a company in repaying its debts by restructuring the company's debts and altering creditor's rights. Creditor's rights are changed by creditors agreeing to receive only a portion of the debt owed to them. Schemes of arrangement are attractive to companies because the company can pay a share of the debt and avoid default on the whole debt. Courts supervise and sanction schemes of arrangements which makes the scheme legally binding on all creditors if approved by the Court. Creditors are bound to the scheme even if some creditors do not accept the scheme in terms of s211 H of the Companies Amendment Act. If 50% of creditors, or creditors to which the company owes 75% of the total value of the debt agree on the scheme arrangement, then the scheme comes into effect.  This provision benefits the company as the company avoids creating individual arrangements with all the creditors to achieve the restructuring of debts.

    A scheme of arrangement is a viable solution for a company's financial challenges if the company want to keep its affairs private. The scheme also does not require that a company's directors give control of the company. Furthermore, the scheme is enforceable as the Court may grant an order to achieve those desired ends.   

    The old scheme of arrangement in section 210(10) of the Companies Act of 1967 stated that the court was only empowered to grant a stay of proceedings that had already started. Additionally, under the old regime, creditors had to be placed into a separate class if their rights were so different that they could not be expected to agree on a scheme of arrangement. However, this meant that creditors in belonging to class were a small amount was owed by the company could still block a scheme.

    Relevant Provisions of the Companies Amendment Act

    Section 211 B (1) states that if a company proposes or intends to submit a scheme arrangement between the company and its creditors or any class of creditors, then that company may apply. After such application, the court will make one of six orders. The first order that a court could make is an order restraining the passing of a resolution for the winding up of the company. Secondly, the court may also make an order restraining the appointment of a receiver or manager over the property or undertaking of the company. Thirdly, a court order could have the effect of any proceedings against the company and subject to such terms as the Court imposes. Fourthly, a court order can restrain the commencement, continuation or levying of any execution, distress or another legal process against the company's property except with leave from the court.   Fifthly an order that encumbers a party from enforcing any security over any property of the company or a request to repossess any goods held by the company under any chattels leasing agreement, hire purchase agreement except with the leave of the Court. Lastly, an order restraining the enforcement of any right of re-entry or forfeiture under any lease in respect of any premise occupied by the financially distressed company except with the leave of the court.

    There are several amendments regarding schemes of arrangements in the Companies Amendment Act. Section 211 B requires that debtors disclose the state of the company's financial affairs. According to the case of Wah Yuen Electrical Engineering v Singapore cables Manufacturers ([2003] 3 SLR(R) 629) the court stated that it is an established and independent principle of law that the creditors should be furnished with such information as is necessary to make an informed decision. In the Royal Bank of Scotland NV v TT International Ltd([2012] 4 SLR 1182; [2012] SGCA 53) case, the court said that accurate information is the creditor's rightful entitlement. This is because it allows the creditors to examine whether the scheme arrangement is appropriate for the company, whether in the long or short term.

    Section 211 B (8) of the Companies Amendment Act of 2017 provides an automatic 30-day moratorium which runs from the day the application is made. This section addresses the inadequate protection that was accorded companies under the old regime because it further allows the court discretion to order a variety of stays including stays against future proceedings, resolutions to wind up the company and steps to enforce security and where necessary, to give it a worldwide in personam effect.  The concept of a worldwide stay of proceedings was coined in the Chapter 11 filing in the United States of America Bankruptcy Code. Section 211 C (5) (b) states that subsidiaries who play a necessary and integral role in the scheme of arrangement will also benefit from the moratorium. Section 211H of the Companies Amendment Act of 2017 removes the veto right that was available to each class of creditors.

    Section 211D

    Section 211D prevents debtors from dissolving assets during the moratorium period.  A moratorium or stay is a temporary restriction on the performance of a specific activity. Section 211 D (1) states that the Court may, make two different kinds of orders regarding a moratorium which is in force for such part of the moratorium period as the Court thinks fit. The first order referred to is an order restraining the relevant company from disposing of the property of the concerned company other than in good faith and the ordinary course of the business of the relevant company. The second order referred to is an order preventing the company concerned from transferring shares, or altering the rights of any member of the company. An issue that may arise from this provision is the definition of the term "debtor". The United States case of AH Robins Co v Piccinin (788 F.2d 994 (1986)) the court stated that in unusual circumstances, a moratorium might affect a non-debtor party. The unusual circumstances are described therein as where the identity between the debtor and the non-debtor is such that the non-debtor could be said to be the real defendant. In such an unusual circumstance, the judgment against the non-debtor who is the real defendant will also be a judgment against a debtor. Thus, a debtor may not be the actual person owing the debt. In the case of Queenie Ltd v Nygard International (321 F.3d 282) the court held that an automatic stay could apply to non-debtors if a claim against the non-debtor will have "an immediate adverse economic consequence for the debtor's estate".  Therefore, a debtor who may experience an economic disadvantage because of the moratorium can be excluded from the effect of the moratorium while a non-debtor is affected by such moratorium.

    Section 211 D (2) states that the 'moratorium period', in relation to a relevant company, means the automatic stay period referred to in section 211B (8) of 30 days. Section 211 D 2 (b) states that the moratorium period means the period when an order under section 211B (1) is in force.  In terms of section 211 B (1), a financially distressed company may request the court to restrain the institution of legal proceedings against them. For instance, under section 211 B (1) CA, a court can grant an order to suppress the passing of a resolution ordering the winding up of the company. The moratorium also protects a company because it prevents creditors from taking legal action overseas.

    The Oriental Insurance Co Ltd v Reliance National Asia Pte Ltd  ([2008] SGHC 236) case suggests that the Singapore Appeal Court prefers a more flexible jurisdiction to amend a scheme. This case is supported by the TT International case where the court set aside a scheme arrangement because failure to disclose specific information by scheme manager. However, it is of significance that the court exercises this flexible jurisdiction on rare occasions.

     The purpose of a moratorium is to allow companies to negotiate the terms of the scheme, although the case Re IM Skaugen SE  ([2018] SGHC 259) says that this breathing space is not uninhibited; hence the 30-day moratorium. Thus, it is debtor misconduct for a financially distressed company to dissolve its assets during the moratorium period. Moreover, it is against the principles of good faith to do so.

    An automatic filing does not protect the interests of creditors because there is no removal or displacement of the company's director or management. This puts creditors in a vulnerable position as they must agree on a scheme arrangement without the assistance of an impartial third party.

    Section 211 D has not been subjected to fair assessment yet; therefore it is unclear when as 211 D should be granted. Section 211D undoubtedly champions debtor protection. Even after the enactment of the Insolvency, Restructuring and Dissolution Bill passed on the 1st of October 2018,  this section will continue to be of relevance. It is necessary then to determine what the appropriate test is to grant a section 211 D order.

    The principles to be used in determining what the section 211D test are to be extracted from the JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd ([2018] SGCA 27) case. The purpose of section 211D is to prevent abuse of the process by company management as well as provide protection for creditors. The section thus has a pre-emptive application. A balance must be struck between the debtor's interests in benefitting from a moratorium and the creditor's interests in preventing abuse of the moratorium at the creditor's expense. The way to strike this balance is to ensure that section 211 D orders are granted infrequently. If section 211D orders were to be granted often, this would undermine the practicality, expedience and effectiveness of the scheme arrangement procedure.

    In this case, the appellant JTrust Asia Pte Ltd had brought an action against Group Lease Holdings alleging that Group Lease Holdings had conspired to defraud the appellant through sham loans. The court ruled that the JTrust had suffered some economic harm which constituted actionable damage. JTrust alleged that there was a real risk that the respondents would dissipate their assets to frustrate the enforcement of the judgment. The court, in considering JTrust's claim considered the test of whether there was a real risk that the defendant would dispose of their assets. The court considered whether there was, objectively, a real risk that the judgment would not be enforced because of the respondent's dealings. According to the Guan Chong Cocoa Manufacturer Sdn Bhd v Pratiwi Shipping SA ([2002] SGCA 45) case, the plaintiff must adduce substantial evidence to support their belief that the respondent will dissolve the assets. The court considered factors such as the nature of the assets, the ease at which they can be disposed of, the nature and financial standing of the respondents business, the length of time the respondent has been in business, the domicile of the respondent, whether the respondent is a foreign entity.

    The reasoning of the Court in determining whether there was a real risk of company property being disposed of,  can be used to formulate a section 211D order test. The legal community eagerly awaits the formulation of such an analysis as it will develop the Insolvency and Restructuring framework in Singapore.  

    Conclusion

    The key achievements of the Companies Amendment Act are an ability to cram down on dissenting classes of creditors, an automatic stay of proceedings available upon the filing of a stay application. Furthermore, the court can order a worldwide in personam stays against a wide range of activities including future proceedings and enforcement of security against the company. Of particular interest, section 211 D prevents the dissipation of company property by debtors. However future judicial scrutiny of this section will determine when a section 211 D order will be granted. This will lead to further development of the Insolvency and Restructuring regime in Singapore.  

     

     

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    Sun, 17 Nov 2019 10:58:00 GMT
    <![CDATA[Common Intention Singapore Criminal Law]]> Common Intention Under Singapore Criminal Law

    Introduction

    The settlement in the former British crown colony on the Strait of Malacca which consists of four trade centres, namely, Penang, Singapore, Malacca and Labuan often referred to as the Straits Settlement which was taken over by the British East Indian Company. The British settlement at Penang was founded in 1786 at Singapore in 1819; it was transferred to the East India Company in 1824, occupied by the British during the Napoleonic Wars. As a crown colony in 1867, the three territories are conventional. Labuan, which in 1907 became part of the Singapore Settlement, was founded in 1912 as a fourth separate settlement.

    Criminal law: The Penal Code

    The Straits Settlements (including Prince of Wales Island (Penang), Singapore and Malacca) was recognised in these territories for most of the 19th century as that of the United Kingdom, as far as local conditions permit. Nevertheless, the Straits Settlements Penal Code 1871 ratified in 1871 (the Penal Code) due to issues such as questions as to the applicability of Indian Acts. Released on September 16, 1872, the Code is primarily an Indian Penal Code re-enactment.

    The Penal Code was amended many times over the years. Sentences for certain crimes increased in 1973, and mandatory minimum sentences imposed for certain offences by the 1984 Penal Code (Amendment) Act, which came into force on 31 August 1984. Though there are changes made over time, the cycle is still going on.

    Criminal procedure

    Before 1870, the law on criminal proceedings in effect in Singapore was found mainly in the Indian Criminal Procedure Act 1852, which was valid because the Indian Supreme Court had the power to legislate for the Straits Settlements. After the passage of the Penal Code in 1871, the Ordinance replaced by the Indian act. However, the English system for criminal proceedings continued to adhere to the Penal Code. It was later found unworkable as the Penal Code abolished the classification of crimes into felonies and misdemeanours. Therefore, to remedy the situation, the Criminal Procedure Ordinance 1873 was passed. The Ordinance also eliminated prosecution proceedings instead of charges for all criminal offences. The grand jury and other juries also abolished.

    1902 saw the introduction of a new Code of Criminal Procedure which was later adopted by the Singapore Colony Legislative Council on January 28, 1955. Under the Code of Criminal Procedure, all criminal offences under the Penal Code or other statutes are prosecuted and tried. The criminal law of Singapore is classified and primarily included in a penal code passed in 1870. Based on the Indian Penal Code, its rules are not always similar to the English Criminal Law intended to be improved by its drafter, Lord Macaulay.

    The Penal Code, Singapore's principal criminal law code, has more than 500 sections and is categorised into 24 subsections.

    Section 34 dealing with the "common intention" is the general clarification in Chapter ll. The general-purpose rule on criminal liability was contentious for many years.

    Section 34 Of the Criminal Code contains the relevant legal requirement:

    "When a criminal act is carried out by several persons, in the pursuit of the common intention of each, all  such persons is liable for that act just as if the act were done by him alone."

    Section 34 suggests no specific crime in any way and states the only law of evidence. It only goes to the point of establishing vicarious liability in the perpetuation of popular purpose in certain acts committed by several individuals. Section 34's crux is collective unanimity of the minds of persons involved in criminal proceedings to bring about a specific outcome. On the spot, such consensus can be formed and thus expected by all of them.

    In 2008, V.K. Rajah headed the Court of Appeal in Lee Chez Kee v Public Prosecutor, a systematic study of the common purpose rule was conducted. It determined that the correct definition, based on Section 34 legislative history and the most likely harmonisation of cases, was that four conjunctive elements are to be proved:

    • Criminal act;
    •  Involvement in the doing of the act;
    •  The common intention between the parties; and
    •  An act done in furtherance of that common intention.

    Analysing the ingredients of Section 34:

    Criminal Act:

    The criminal act is a broader term used in criminal law. ' The crime ' refers to the ' criminal act, ' meaning the cohesion and peace of criminal behaviour, culminating in something that there would be punishment for a person if it were all done alone in a criminal offence. In some act, each person has to disclose to achieve a common goal, such as death or terrible injury to a person. It should be noted that each person must perform an act, no matter how big or small, in order to complete the entire act of an intended offence.

    It is impossible to conceive of two men doing the same act in the same way. It is impossible to do that. Therefore, to have any sense, the word criminal act committed by several individuals' should conceive of an act that can separate into sections of each part performed by another individual, the whole of the criminal act that was the shared intention of everyone. In other words, the one criminal offence may be deemed to consist of several acts committed by the various conspirators, the consequence of their acts being the criminal act that was their common purpose.

    Participating in the act:

    There must be several parties involved in carrying out the criminal act. Two presumptions withheld from this are:

  • If several people do not commit the criminal act, Section 34 is unreliable.
  • The parties must carry out the criminal act, i.e. each party must have engaged in such criminal act.
  • For Section 34, the mere agreement between parties to commit a specific criminal act would not be appropriate.

    Now, what constitutes participation?

    Participation may be passive or aggressive in some situations. Moreover, where the mere presence is passive, it suffices. Nevertheless, cases such as PP v Gerardine Andrew propagated the view that presence is not merely an indication of participation but the only possible indication of participation.

    There should be no emphasis on the presence at the criminal activity scene, regardless of whether it is a single or a "twin crime" case.  The critical issue is whether there has been involvement, not appearance; - participation does not always need to be decided by physical presence. Participation should be a question in every case as to whether the accused person has participated in such a degree that he can be is considered as guilty as the primary offender.

    Technology has reached an age where there is a possibility to participate in a crime by not being in the real place of the crime. Therefore, in some instances, being present at the criminal act does not do justice.

    Exercise caution when evaluating a party's involvement in which there is no presence. As mentioned in Too Yin Sheong v PP, "the presence of co-conspirators gives encouragement, support and protection for the person committing the act".

    If the criminal act applies to all the acts performed by each person who has engaged in the crime by performing various small acts, then it should also be noted that instead of punishing for doing the individual acts, Section 34 punishes a person for the continuity of the criminal behaviour.

    The court instead ruled that Gerardine Andrew had wrongly decided to address both the secondary criminal act and the first criminal act. It held that insisting on involvement in the collateral criminal act was likely to mean that the primary purpose of the common intenders was to sanction the collateral criminal act. Participation in the first criminal act would, therefore, be enough to determine liability.

    Common intention

    In the earlier days, one had to show that the illegal act was done in compliance with a pre-arranged scheme to conclude collective will. As the cases grew, it was the opinion that common intention is formed by:

    • just a moment before the crime was committed;
    • on the spot, or
    • during the offence committed.

    Wong Mimi v PP, determined that secondary offenders should be held liable by Section 34, there must be no shared motive between the actual perpetrator and the secondary perpetrators to commit the act committed by the actual perpetrator resulting in the offence charged by all the perpetrators; All that is necessary is for the said act to be in support of the criminal act generally expected by all criminals and not incompatible with it.

    It is impossible to prove in many situations that there was a prior agreement among the parties. The actions of the participants, weapons used, injuries inflicted, etc., leads to common intention inferences.

    Consider the entirety of the current circumstances must assess whether there was a common intention.

    Simultaneously, there should not be an inference of common intention unless it is "a valid conclusion excluded from the circumstances of the case."

    Eminent Indian publicists have written:

    Care must be taken not to mistake with common intention same or similar intention; the partition that divides their boundaries is often very thin, but the difference is real and substantial, and if it is overlooked, the result is a miscarriage of justice. The strategy does not need to be complicated, and there is no need for an extended period. It could unexpectedly emerge. Nevertheless, pre-arrangement and deliberate concert must be in place. A simple example of a scenario where the same or similar intention may occur but where leaders of a mob come together with weapons is not a common intention.

    Will leader of the mob will plan to kill, but as necessary, none may have a shared goal as no pre-arranged plan exists. In such a case, "each is separately liable for the injury he … caused but he … cannot be held vicariously liable for the injuries inflicted by the acts of the others".

    Common intention in twin-crime situations

    With respect to liability for common purpose in cases of "twin crime," Rex v Vincent Banka, was held, in the first relevant recorded Singapore ruling on liability for common intention, that "there must exist common intention to commit the crime actually committed, and it is not sufficient that there should be merely a common intention to 'behave criminally'". 

    Therefore, in situations of robbery-murder, the general-purpose must not be merely to commit theft, but also murder. Soon afterwards, in Rex v Chhui Yi, it is seen that a defendant could be held liable for the murder committed by his accomplices even if he did not intend the consequences, given he had the requisite mens rea for murder. The precedent set in Wong Mimi followed for a long time. Mimi Wong was a waitress who became intimate with a married Japanese scientist. His wife had arrived in Singapore and was found dead two weeks later. It was later found that Wong stabbed and killed the wife with the help of the scientist who poured detergent on her face. As throwing the detergent was the husband's idea, he was accused of having a clear intention to kill. The Court of Appeal held that the intention to commit the criminal act that constitutes the offence committed should not be a common intention.

    Moreover, as long as the primary offender's motive is compatible with the secondary offender's collective purpose, all will be responsible for the actual criminal act committed. The court provided the following illustration:

     … If A and B intend to come together to harm C with a knife and A holds C while B willingly stabs in the area of the heart; the stab wound is adequate to cause C's death in the ordinary course of nature, thereby, holding B guilty for his murder.

    Applying Section 34, it is also clear that the act of B in stabbing C is in the service of the common intention of causing harm to C with a knife because the act of B is explicitly consistent with the execution of that common intention and as its' criminal act,' i.e. the cohesion of criminal behavior has resulted in the criminal offense of murder punishable in accordance with s 302. A is also guilty of murder.

    Most cases followed the so-called definition of Section 34 after Mimi Wong's precedent, but the court disagreed with the same argument in Lee Chez Kee. The Court was aware of Prof. Michael Hor's objections against Mimi Wong. His writings include:

    It is necessary to read together with Sections 34 and 35 of the Penal Code. The latter provides that only if he held "any knowledge or intention" will the common intender be liable, thus rejecting Mimi Wong v PP.

    Furtherance of common intention

    The question is remaining for the court to decide when the collateral crime could be said to be in "furthering public purpose." Although it was clear from Mimi Wong (ibid) that secondary victims do not need to have any mens rea in the collateral offence, there was some uncertainty as to the probability that the collateral offence would occur.

    Academics recognised that it was not necessary to carry out the collateral offence in "consistent" with the shared purpose of the parties. Besides, based on Mimi Wong, several decisions are made with different positions in the area of shared purpose. Some of them are:-

    • Shaiful Edham bin Adam v PP, has taken the "subjective foresight" approach, while participants must have some awareness that an act can be performed that is consistent with, or would be in support of, the common intention.
    • PP v Tan Lay Heong argued that collateral crime must be "conceived or ordinarily carried out in support of a common intention" to commit the first crime.
    • PP v Too Yin Sheongmostly followed the strict liability approach, i.e. ' as long as the perpetrator carried out the act in favour of the collective purpose of all of them, the responsibility for that act applies equally to the majority of the secondary offenders.'
    • Asogan Ramesh s / o Ramachandran v PP follows a strict liability policy

    Ultimately, the court held that the mens rea requested of the secondary offender is that he must subjectively be aware that one of his parties is likely to commit a criminal offence constituting a collateral offence in support of the common intention to carry out the primary offence; there is no need to have known of the actual method of execution in a murder situation.

    The Court held in PP v Daniel Vijay S/O Kathirasan, "Section 34 asserts that constructive liability to a secondary offender by allusion to doing of a criminal act by doer in prolongation of a common intention shared by both the actual doer and the secondary perpetrator. It may not be to hold the secondary offender constructively liable for an offence arising from the criminal act of another person (viz, the actual doer) if the secondary offender does not have the intention to do that particular criminal act. It is especially true of serious offences like murder or culpable homicide not amounting to murder."

    The following passage in Daniel Vijay's precedent,

    "In our view, the requirement of common intention is, in principle, a stricter requirement than the "Lee Chez Kee" requirement of subjective expertise for purposes of imposing constructive liability. If A and B have common intention only to rob C but not to physically harm C, and A joins B in robbing C even though he has subjective knowledge that B has a history of using violence, it does not follow-assuming B does indeed use violence against C in the course of carrying out the robbery-that A had a common intention with B to use violence against C; A might simply have been callous about or indifferent to the fate of C. Even if A was aware that B was carrying a knife with him when they set out together to rob C, a court would be more likely to infer merely that A had subjective knowledge that B might likely use the knife to hurt or kill C in the course of carrying out the robbery, as opposed to inferring that A, by going along with B to rob C in those circumstances, spontaneously formed a common intention with B to rob and, if necessary, to use the knife to hurt or kill C so as to carry out the robbery."

    Is in contradiction with the following passage in Lee Chez Kee

    "I propose to lay down with this judgement a determinative pronouncement on the new mens rea required of the secondary offender for him to be liable for the collateral offence which was eventually committed…the supplementary mens rea required is that of a subjective knowledge on the part of the secondary offender concerning the collateral offence likely happening. To be more precise, the secondary offender must subjectively know that one in his party may likely commit the criminal act comprising the collateral offence in prolongation of the common intention of carrying out the principle offence. In this regard, in correlation with the representation "criminal act", I do not think it is essential for the actual method of execution to have been known by the other offender. The phrase "criminal act" is to be granted a broader understanding, and I think that it is sufficient that the secondary offender knew that one in his party might inflict a bodily injury which was enough in the ordinary course of nature to cause death."

    Conclusion

    The Singapore Criminal Court looked up the precedent in Mimi Wong v PP for a long time to decide in cases charged with Section 34. Having said that, in addition to a shared motive in twin crime cases, there is no obligation for the secondary perpetrator to have any mens rea to the collateral offence. The Court held that the desire to commit the criminal act that constitutes the crime committed should not be the principal purpose. Instead, as long as the primary offender's intention is consistent with the secondary offender's common intention, everything will be liable for the ultimate criminal act committed. This leads to several cases with a broad understanding of Mimi Wong.

    The court made a different precedent in Lee Chez Kee later. The court held that the secondary offender's mens rea is that he should have subjectively recognised that one of his partners may have committed a collateral crime in favour of the common intention of carrying out the primary offence. This enforcement of the secondary offender's condition for personal information would amount to his recklessness. It conveys the message that he turned away visible from his head. It has been said that generally speaking, no suspect should be tried, "for any act or omission or for bringing about any prohibited state of affairs unless he is morally blameworthy". Moral blameworthiness is conceptualized as the accused's state of mind as opposed to the reasonable person's state of mind. Then came Daniel Vijay's decision, which was basically at odds with the Lee Chez Kee. Following Lee Chez Kee's comprehensive attempts to explain the rule, the Court ruled that "provision of difficulty" remained. The precedent notes that collective purpose is, in theory, a condition more objective than personal information.

    To whether Daniel Vijay has replaced Lee Chez Kee or whether Lee Chez Kee is said to be reading in the light of Daniel Vijay remains unclear. Hypothetically let us say X and Y decide to rob a store together. Y starts stabbing the shopkeeper with a knife and X is aware that Y is abusive and is also aware that Y always has a knife on him. X also understood that Y could at any given point use the storekeeper's knife as well. Lee Chez Kee applied, it would have been held that X would have been "found to have anticipated a possibility that Y was likely to inflict injury sufficient in the normal course of nature to result in death" and that Y would be held for murder under s.302 (of the Penal Code).

    The academic believed that this result (i.e., the girl's death sentence) separated the girl's moral blameworthiness and her criminal responsibility. It can be said that under Daniel Vijay this conclusion would likely yield a different result, unless, of course, the girl had real knowledge that the knife would probably have triggered an s.300 (c) injury. The proof that Lee Chez Kee and Daniel Vijay are saying radically different things is thus presented. However, Daniel Vijay has only gone so far as to say that Lee Chez Kee has not fixed s's turmoil, and it did not state categorically that Lee Chez Kee would now be replaced. In reality, in the decision, it used the Lee Chez Kee test many times, which indicates that the Lee Chez Kee test was merely updated.

    As Daniel Vijay was pronounced after Lee Chez Kee, it, in essence, replaces Lee Chez Kee although it is specifically mentioned in Daniel Vijay's precedent that the Lee Chez Kee

    ]]>
    Wed, 23 Oct 2019 15:08:00 GMT
    <![CDATA[Dispute Resolution in Singapore]]> A Guide on Dispute Resolution in Singapore

    Introduction

    A conflict is virtually inevitable wherever there is human interaction. Some of these conflicts may erupt a dispute in any structure of interaction or relationship, and others may perhaps result in a multifarious international hostility and confrontation.

    Successively, dispute resolution processes have developed over a period of time to intervene and manage various types of disputes. Resultantly, there is a high diversity in fields in which non-profit organization and conflict resolution professionals take on a broad array of roles. In simple terms, dispute resolution is the process of resolving disagreements and arguments between individuals or different parties. There are various types of negotiations and resolutions which include but is not limited to, litigation, conciliation, arbitration, mediation, etc.

    This article delves into the court structure in Singapore as well as their mechanisms for solving different types of disputes and the options available to distressed individuals or parties.

    Introduction to Dispute Resolution Methods in Singapore

    The main type of dispute resolution method practiced in Singapore is litigation. However, with the growth of expertise in arbitration in Singapore, alternative dispute resolution mechanisms are largely being used in place of litigation.

    The civil justice system in Singapore has stemmed from the Common Law adversarial model. Generally, the applicable standard of proof for any civil claim to succeed depends on the balance of probabilities. There is an active case management system which has been established by the Registry of the Courts, which allows the courts in Singapore to play a greater role essentially in minimizing all unnecessary delays in proceedings.

    Further, SICC, short for Singapore International Commercial Court, was established in January 2015, primarily for the expansion of the scope of internationalization as well as the export of Singapore laws. Furthermore, with the increasing emphasis on the alternative dispute resolution, the Singapore International Mediation Institute (SIMI) and Singapore International Mediation Centre (SIMC) were established.

    Structure of the Courts

    The court system in Singapore is two-tiered:

    • The Supreme Court (which is made up of the Court of Appeal and High Court)
    • The State Courts

    The Supreme Court

    The High Court in Singapore is comprised of the judges of the High Court as well as the Chief Justice. In 1994, the Court of Appeal embarked at being the apex appellate court in Singapore. The Court of Appeal takes cognizance of appeals on judgements from the High Court in both criminal and civil matters.

    A civil claim of a value greater than SG$ 250,000 must be commenced in the High Court in the first instance. Consequently, large valued commercial claims are directly brought before the High Court in Singapore. There are not any specific divisions within the High Court to hear a specific type of dispute. However, in order to deal with complex commercial cases, there is a specialized list of judges that deal with specific areas of law that have been set up within the High Court of Singapore. Some of the specialized areas set up in the High Court include:

    • Securities, finance and banking;
    • Insolvency, trusts and company;
    • Arbitration;
    • Insurance and shipping;
    • Construction, shipbuilding, etc.

    The above list is not exhaustive, but only intends to give a gist of the classifications.

    The SICC is one of the division of the High Court which deals with disputes of commercial and international nature, and same was established pursuant to Section 18A of the Supreme Court of Judicature Act.

    The State Courts

    The State Courts in Singapore comprise of the Family Justice Court, the District Court and the Magistrates' Court. For claims that do not exceed the value of SG$ 60,000, it is the Magistrates' Court that hears the disputes. On the other hand, the District Court takes cognizance of the claims whose value does not exceed SG$ 250,000.

    Further, the Family Justice Courts which consists of both, the Youth Courts as well as Family Courts, hears all cases related to family disputes including but not limited to, guardianship cases, divorce matters, family violence cases, applications for deputyship as under the Mental Capacity Act, successions matters, etc.

    Litigation

    Starting Proceedings

    Generally, there are two ways to commence a civil proceeding in Singapore:

    • Writ of Summons: These are for actions that are likely to include a substantial dispute of facts;
    • Originating Summons: These are actions that are unlikely to include a substantial dispute of fact, or where it may be prescribed by law. For example, pursuant to Section 124(1) of Building Maintenance and Strata Management Act, it is clearly mentioned that all applications made to the court must be commenced by originating summons only.

    Notice to the defence

    The originating summons and writ of summons have to be personally served on each of the defendants. In the case where the defendant is within the jurisdiction, the same must be served within 6 months from the date of the issue.

    Pre-trial Stage

    After the summons has been filed, a Pre-Trial Conference (PTC) gets scheduled first. At this stage, the registrar enquires about the status of the action which has been commenced. Additionally, adequate direction is given to parties in order to proceed with litigation in a fair and expeditious manner. Further, at this stage, an application for either final or interim relief may also be made. Furthermore, each party discloses their documents which are relevant to the case, and in advance of trial, the parties exchange affidavits, which states the evidence that supports each party's case.

    Trial

    In the case where the matter is resolved by way of terminated summarily, settlement or any other way of interim judgement, the matter proceeds to trial. At this stage, witnesses for each party (if applicable) state their evidence with regards to the affidavits submitted.

    Post-trial

    Once the court proceeding has ended, the solicitor or the advocate for the party that wins the case must submit a breakdown of the bill of costs incurred on behalf of the client, or the list of costs as ordered by the relevant authority or court to be paid by a party to the other. It is pertinent to note that litigation may continue even after the trial in case a party seeks to enforce the judgement, or when the judgement is appealed.

    Interim Remedies

    One of the party may bring the case to be dismissed even prior to a full trial in the ways mentioned below:

    • In the case where the defendant does not appear or fails to file his/her defence within the specified time, a judgement in default can be claimed by the claimant.
    • In the case where the defendant appears as well as files the defence though there happens to be no real defence to claim, summary judgement can be applied for by the claimant against the defendant.
    • Pleadings are struck out if it:
    • Does not disclose an adequate cause of action;
  • Is frivolous, scandalous or vexatious;
  • Tends to embarrass, delay or prejudice the fair trial;
  • Is otherwise considered an abuse of the procedures of the court.
  • Appeals

    The appeals from SICC are heard by the Court of Appeal. It is pertinent to note that the Chief Justice may appoint an International Judge since it is at his discretion, who may sit in the Court of Appeal for an order or judgement of the SICC which has been challenged. Essentially, the time limit for the appeal a month (30 days) from the date of the judgement which needs to be challenged or appealed.

     

    ]]>
    Tue, 27 Aug 2019 16:37:00 GMT
    <![CDATA[Singapore International Arbitration Centre]]> Singapore International Arbitration Centre

    Singapore has been growing in popularity for international arbitration with the support of the government's policy to facilitate the best arbitration Centre in the region. The tremendous growth of the Chinese and Indian economy in the last few decades drives Asian markets to the next level. Even though Singapore is a tiny city, The Singapore International Arbitration Centre (SIAC) manage to bring most of the commercial disputes from all over the world to the country for dispute resolutions. Among the other countries, the most members are from India amounting to 176 and China 77 in 2017. The Singapore parliament enacted the Arbitration Act supporting the growing objective of the institution. Similarly, the judicial body minimized its intervention with arbitration procedures in order to provide a smooth and independent process of the tribunals. At present SIAC compete with major arbitration institutions like AAA, LICA, and ICC in terms of procedural laws and facilities. The institution handled more than 450 new cases and administered 400 plus cases in 2017. Which is a tremendous growth from the last few years. Some parties choose SIAC as their dispute resolution Centre over other leading arbitration institutions for its unique setup and supportive institutional rules.

    The primary object of the institution to provide a neutral and independent arbitration system for companies around the world. Specifically, the companies based in the region where the parties and lawyers can quickly travel to Singapore for their tribunals. The amended rules introduced in 2016 will apply for the disputes registered on or after 1st August 2016. The previous law was amended in 2013. The new amendments took place as the regulators decided to set up a new standard for the existing rules and to introduce new regulations. Comparing to the court systems where the procedural laws are not amended regularly, the introduction of new laws and changes in the existing procedural laws from the arbitration institutions help system to move forward. The changes in the rules demanded by the business community and the quickly changing nature of international arbitration institutions around the world. The leading institutions produce new rules which supplied the needs of the businesses. Hence, SIAC was forced to introduce amendments in order to facilitate a complete institutional law. The changes include but not limited to early dismissal of claims, expedited arbitration procedure, multi contracts, and joinder consolidations.

    The corporates demand a faster and easier procedure with enforcement system from the legal system for a very long time. The foundation of the Alternative Dispute Resolution system itself is also a result of finding the easiest way to resolve commercial disputes. In that way, SIAC institutional rules on expedited arbitration procedure is a major change of new amendments. The procedure laid down a solution for the business disputes which require a quick solution. The parties can apply for the expedited procedure in pursuant to article 5 of the 2016 laws. The disputed amount must not exceed $ 6,000,000 and the parties must agree to conduct tribunal under the Expedited procedure. This amount is an increase of 1 million from the last amendment. Also, the parties can apply for disputes with exceptional urgency. All the leading arbitration institutions have recently introduced this procedure for the parties and the number of cases referred to expedited procedure increase day by day. The institution has conducted 150 plus disputes under this procedural law from its introduction in 2010.  However, the procedure yet to be tested completely for different types of cases and practical implementation will require many amendments down the line. The early entry of the SIAC to this procedure is a good sign for the institution in relation to establishing a solid foundation for a quicker solution to commercial disputes. It is expected that regulators in Singapore will support the procedure after reviewing the practical implementation of the new system. Among the other institutions in the Asian region, the changed rules of SIAC provide a quick solution with fewer fees which attracts many businesses to enter SIAC as arbitration Center during the initial agreements.

    According to article 34 of the SIAC rules, the fees of the tribunals are based on the amount in dispute. The leading institutions including the ICC and AAA also fix their fees depend on the amount in dispute. According to the Queens Marry research, the SIAC fees are on average among the other institutional fees. Comparing to the SIAC, LCIA charge far less from their parties as their method of fees is on an hourly basis. The recent amendments from the leading arbitration institutions can be effective where the institution charge on hourly basis. For example, a case referred to a sole arbitrator will be less charged for the parties than a one referred to three arbitrators. One of the leading reason for the parties to SIAC is the fees comparing to other institutions. The administrative fees of the SIAC are reasonable and average. However, the tribunal's fees charge according to the amount in disputes which method is criticized by scholars and legal experts among the parties. They point out that sometimes the arbitration institutions are more expensive than courts in overall. Attacking the fundamentals of arbitration that arbitration is cheaper than courts system. Hence, the SIAC may consider changing the fees structure of the institution to attract more parties in the coming amendments.

    Article 28 stipulates the laws related to The Competence principle. The arbitration tribunal has the power to decide its own jurisdiction of the institution in relation to the matter in dispute. This extends in relation to validity, existence, or scope of the arbitration agreement. For example, if a party raise an issue mentioning the tribunal has the power to solve issue A and B in the contract but not X and Y. Accordingly, the tribunal does not have jurisdiction to conduct the arbitration on matters X and Y. In such circumstances, the tribunal can study and understand the matter X and Y in order to determine if the tribunal has jurisdiction to decide on matters X and Y. However, the tribunal must be very careful in choosing the jurisdiction over the issue as the parties can later challenge during the enforcement level using Article 5 of the New York Convention. The registrar of the institution also granted the power to refer the matter of jurisdiction to the courts for its discretion. Article 21 of Chapter 6 of the Singapore Arbitration Act stipulate a similar law as well. Nevertheless, the courts in Singapore are supportive of the arbitration process and therefore they minimize their intervention. The minimum intervention also can give confidence to the common man that arbitration is independent. If the matter goes to courts and bounces back to arbitration in every stage, the trust towards arbitration among the parties will be eliminated as they will start thinking arbitration is controlled by the local courts of that jurisdiction. If one party to the arbitration is from outside Singapore and if they had to go through a stage passing court of Singapore for every stage, their trust in the system of arbitration will be reduced. The London arbitration Centre is a good example with a strong legal system which only intervenes in the required stage of arbitration. SIAC also follow the same strategy and courts interventions are minimal.

    Application for early dismissal for claim or defense is another procedural development from the recent amendments. This is a new regulation introduced from article 29 of the institution law. The step is to ease the procedure of claim where the party can prove the claims question of merit or jurisdiction is not valid. The claims must be backed by legal arguments and facts of the matter. The application also provides room for the arbitrator to understand any possible loophole in the matter for a latter dismissal. If the parties had to go through an entire tribunal process and the case dismissed, that will be a waste of time and money for the party. Also, the trust of the arbitration procedure will be questioned. Therefore, the early application for claim or defense is set up for a strong foundation to move forward after this stage with a strong belief that there will be no further changes or claims in the tribunal.

    The tribunal requires all the parties to the arbitration including the administrative and arbitrator to comply with the confidentiality of the matter. Confidentiality considered to be the main reason for some parties to choose arbitration over litigation. A court system may publish all the cases against a company and it puts a company into a vulnerable position during investment strategies. An arbitration process can keep all the information related to the matters confidential and only parties can be available for the information. The institutional rule also gives power to the tribunal to take action against any breach of confidential matters. The institution also provides the facility of possible mediation before the arbitration. Mediation also protects the confidentiality of the parties and things shared with a mediator will not be brought up in a court of law against the same parties. Also, during the mediation process, the mediator separately discuss with both the parties about their matter and parties can request the mediator to protect the confidentiality of some of the matters they discussed during the process. Mediation under SIAC is conducted in a professional manner and the institution supports meditation. However, generally, a dispute starts in a commercial context with a disagreement on a matter and continued with disagreements during the negotiations. Therefore, the parties seek legal supports to make a decision on behalf of them. However, during the negotiation, the parties may don't share their confidentiality information's like financial positions. Therefore, a mediator can help find a better solution understanding the matters in detail as well as keeping confidentiality of shared details from the parties. The mediation process is encouraged by the UNCITRAL model law as well. 

    The Singapore arbitration felt behind in relation to multi-contract and multi-party disputes. According to the Singapore annual report, the disputes related to construction and engineering take up to 25% in total. However, leading institutions like ICC introduced provisions in their 2012 rules itself and attracted parties with multiparty disputes mainly construction-related companies around the world. Therefore, some of the construction-related disputes did not come to the SIAC arbitration Institution. Not only the multi-parties in the constructions but also some of the leading tech companies also subcontract their assignments and involve multi parties to their works. Therefore, a new big market has opened for the arbitration institutions. These tech companies and entrepreneur startups not happy to go to the courts and waste their time and money. The reason includes their future can be dependent on the judgement of the dispute in place. For example, an innovative product found using multiparty cannot come to the market for sale unless the dispute between these parties is sorted out. The regulators of the SIAC understood these demands of the companies and cater the regulations to fulfil their needs.

    The emergency arbitrator is appointed for the matters where parties seek emergency relief from the tribunal. The procedure requires the parties to submit in detail regarding the nature of relief they seek and the reason for the same. The discretion of accepting the emergency arbitrator application is with the President of the tribunal considering all the relevant factors. This step from the SIAC can also be considered making arbitration available for diverse situations and minimizing courts intervention during the process. Prior to this rule the parties who required an emergency relief had to file an application in the relevant courts. The parties must notice in prior if the institutional rules allow the emergency arbitrator to give an "award" or "order". Similarly, whether the award from the emergency arbitrator can be enforced using the New York Convention. The SIAC institutional rules in this regard stipulate as "The Tribunal may, at the request of a party, issue an order or an Award granting an injunction or any other interim relief it deems appropriate. The Tribunal may order the party requesting interim relief to provide appropriate security in connection with the relief sought". Accordingly, it is in the discretion of the arbitrator to give an award or an order under the SIAC institutional rules.

    Further, the final award and enforcement of an award using the New York Convention complete the arbitration process under the SIAC. The institutional rules require the arbitrators to finalize the submission of all evidence and documents of the procedure before granting an award. The distinguish difference between arbitration and the other ADR system is the ability of enforcement of awards using the New York Convention. A party can enforce their award in any member countries to the statute. More than 100 countries are party to the New York convention including Singapore. Therefore, the investors of one country can file an arbitration with a party from another country keeping in mind that they can enforce the award later on. The Singapore arbitration act also promotes this procedure in article 46 by recognizing an arbitration award as local courts award. The article mentions as "An award made by the arbitral tribunal pursuant to an arbitration agreement may, with leave of the Court, be enforced in the same manner as a judgment or order of the Court to the same effect". UNCITRAL and other arbitration mechanisms require the member states to provide full enforcement mechanism under their country law. The Singapore act caters full protection for the enforcement mechanism.

    Finally, unlike a court system, the arbitrations are generally designed to avoid appeal systems. The appeal in a court system has both upside and downside. The downside is it takes a lot of time for the parties to get a final decision. Generally, the investors and consider about the timeframe of starting of a trial till the end. They make their business decisions and strategies according to that final judgements. Should the opponent make an appeal, the business will have to wait longer than expected timeframe. Considering all these problems, the Singapore Arbitration Act has limited the option of appeal. The same can be noted with Article 5 of the New York Convention which gives only a few limited objections for an arbitration award. SIAC is appreciated by the legal community for following international rules and guidelines on enforcement of an award.

    The SIAC arbitration institution always tries to perfect their regulations from starting of a tribunal till the end. They are carefully designed to uphold the fundamentals of international arbitration. The foundation principles of International Arbitration like party autonomy, competence principle, limited procedural steps, reasonable fees structure, use of technology, and enforcement of an award can be noticed under the SIAC arbitration as well. The leading institutions including the SIAC complete with each other on shaping and changing their rules to provide best arbitration tribunal for the parties. The focus is more on providing a better and faster dispute resolution system to the businesses around the world. Which is one of the reasons for the amendments of SIAC rules within a very short period of time. They study the way institution applied its expertise on matters presented to them. Changes of the procedural laws are based on these studies and understanding of international arbitration. The legal experts appeal for amendments in procedures related to the court systems court for decades. On the other hand, arbitration institutions make changes in their procedural laws within few years of time frame. Hence, arbitration under the SIAC rules may suit the most for the developing Indian and Chinese companies in the region. Similarly, for the companies around the world looking for the best arbitration mechanism in the Asian region.

     

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    Mon, 06 May 2019 12:42:00 GMT
    <![CDATA[Drug laws in Singapore]]>  "Wasted? So is your life"- Drug laws in Singapore

    Singapore by far has the toughest drug laws in the world. The country's strong and determined hold on the Misuse of Drugs Act has implemented a penalty for even possessing a small amount of illegal narcotic substance. In fact, the country advocates for execution if one is found in possession of a large quantity of drugs.

    As per the Misuse of Drugs Act, if an individual is found to have been in possession of an illegal narcotic substance or a large amount of drugs, then the individual will be presumed to be trafficking the said drug. As per the drug laws in Singapore, the burden of proof would lie on the defendant to prove his innocence, not on the government.

    There have been various instances where an illegal narcotic substance has been found in the car or in the house of a person, and that person is presumed under the law to have possession of the same. In such a case, the burden of proof will be placed on the defendant to prove his innocence. The law on drugs has always been an inconsistency with the authoritarian law enforcement culture of Singapore; for many years Singapore has followed a strict punishment system, maintaining the same to work best at controlling evils in society, such as the use of drugs.

    The country has been successful in keeping a strict check on the use of illegal narcotic substances. This is evidenced upon comparing the consumption rates of illegal drugs in Singapore to that of counties. For example, in the UK, 8.2% of its population is found to be cannabis users, whereas, Singapore's usage rate is found to be at 0.0003%. For drugs such as heroin, opium, and morphine, the equation of comparison stands at 0.9% for the UK and 0.0005% for Singapore.

    What is the Penalty for the possession of illegal drugs?

    According to the guidelines stipulated under the Misuse of Drugs Act, the penalty for the possession of a small amount of illegal drugs ranges from $20,000 to the extent of ten years in prison. The Central Narcotic Bureau has a list of controlled narcotic substances that one should not bring into the country.

    As per Section 17 of the Misuse of Drugs Act, a person is automatically presumed to be trafficking drugs if he is found in possession of illegal drugs ranging within the following amounts:

    Drug

    Quantity

    Heroin

    2 grams or more

    Morphine

    3 grams or more

    Opium

    10 grams or more

    Hashish

    10 grams or more

    Cocaine

    3 grams or more

    MDMA

    10 grams or more

    Methamphetamine

    25 grams or more

    As per Section 17 of the Misuse of Drugs Act, a death penalty can be given if the convict has been proven to be in possession of an illegal drug beyond the mentioned quantities:

    Drug

    Quantity

    Heroin

     15 grams or more

    Morphine

    250 grams or more

    Opium

    1,200 grams or more

    Hashish

    200 grams or more

    Cocaine

    30 grams or more

    Methamphetamine

    250 grams or more

    It was only since the amendments in January 2013 that judges could abandon issuing the death penalty for drug smugglers, and rather, impose life sentences. But for the same to be applicable, the accused should have made a case that he was only a drug courier, that he suffers from a particular mental disorder, or that he/she has turned out to be beneficial in helping the Narcotic Bureau.

    Authorities don't need a warrant to drug test you!

    A person can be taken into custody to conduct a drug test, and there is no requirement of a warrant for the same. For first time offenders arrested for the consumption of an illegal drug, the punishment could be one year incarceration. However, second-time offenders who have committed the same crime can be imprisoned for three years. Should the unlucky individual get caught a third time, the defendant would be sentenced to five-years of punishment with three strokes of a cane. Consumption of an illegal substance means that the urine of an individual has been tested positive for a substance. In the case you have consumed a drug before entering the borders of Singapore, and have been detected to have a drug in your system, even then though you have not consumed the drug in Singapore, you will be charged for the same.

    A few tips to avoid even the barest possibility of getting arrested with charges of Drugs in Singapore:

    • Remember, the laws of Singapore will presume that you are in possession of the illegal drug substance and will prosecute you for the same if your luggage or belongings are found to have any amount of illegal narcotic substance in the same. Hence, avoid carrying things for friends or acquaintances without being sure of what it is.
    • There is no doubt that Singapore has a zero tolerance towards possession of illegal drugs. Travelers visiting Singapore are advised to contact the relevant department and be sure if the medicine they are carrying along with them is on the controlled list and if it needs prior permission from the authorities before carrying into Singapore. A traveler arriving with prohibited medication without prior approval or documentation may be denied entry or even prosecuted for the same.
    • You can be sued, fined and also imprisoned if you are detected to be under the influence of illegal drug substances in Singapore. Detection of illegal drug substances in your blood or urine will also hold you responsible for being in possession of the same, and hence you can be prosecuted. Therefore, it is advised to detox your body before entering the borders of Singapore in case an illegal drug has been consumed.

    A few cases wherein drug offenders in Singapore have been severely dealt with.

    • Johannes Van Damme: A Dutch national was caught in possession of 9.5 pounds of heroin in his suitcase while in transit at the Changi Airport in Singapore. The arrest took place in 1991, and he was executed for the same in 1994. He put up a case that he was unaware of what was in the briefcase and he was only carrying the same for a Nigerian friend. Despite appeals from the Dutch Foreign Ministry and Queen Beatrix of the Netherlands, he was still executed for the offense on 23 September 1994.
    • Nguyen Tuong Van: The arrest took place after he was detected via a metal detector at the Changi Airport for a packet of heroin strapped to his body. Upon investigation, he was found to be in possession of 396.02g of heroin from Cambodia. The quantity was more than 25 times then that required to be granted the death penalty under the Misuse of Drugs Act. He was convicted for the same and was sentenced to death on 20 March 2004.
    • Iwuchukwu Amara Tochi: Arrested at the Chandi Airport, authorities grew suspicious when he spent over 24 hours in transit. Upon further investigation, he was found to be in possession of over a pound and a half of diamorphine capsules which was estimated to be valued at US$970,000. He was proved guilty and was executed on 26 January 2007.

    Conclusion

    By now it is a well-understood fact that Singapore holds zero-tolerance for illegal drugs and narcotic substances. The country advocates death penalty to persons found in possession of a large quantity of illegal drugs. Singapore adheres to a system of severe punishment which has helped them keep a strong check on the possession and consumption of illegal drugs in the country.

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    Tue, 05 Feb 2019 12:27:00 GMT
    <![CDATA[Amendments to Singapore’s Penal Code]]> Prospective Amendments to Singapore's Penal Code

    In July 2016, Singapore established a Penal Code review committee intended to perform a comprehensive assessment of the legal provisions currently protecting marginalized communities and members of the adolescent demographic. As of September 2018, the Committee has requested heightened legislative care for topics encircling sexual and violent crimes outlined under the Penal Code. Specifically, authorities have demanded the immunization of rape under marriage and criminalization of attempted suicide be repealed. Additionally, the anticipated Penal Code revisions will include increased repercussions for sexual predators preying on minors, offenses executed against mentally or physically debilitated individuals, and create explicit punishment for acts of voyeurism and consuming pornographic material. The Penal Code review committee has currently tendered 169 recommendations, a significant proposed alteration since its last review in 2007. Although the previous substantial modifications to the Penal Code commenced just over a decade ago, Singapore's Minister for Home Affairs and Law denoted that novel changes are necessary to ensure the 150 - year old Code remains up-to-date with societal interests and development. Although Singapore's proposed amendments are still subject to public feedback, the Ministry for Home Affairs and Minister for Law has released an extensive report on the proposed changes. This article is directed at evaluating these alterations.

    Published on August 2018, the Penal Code Review Report was issued with the objective of performing a thorough evaluation of Singapore's Penal Code and fashioning suggestions to resolve insufficiencies hindering public welfare and criminal liability stemming from moral culpability. According to the Report, the Committee is tasked with reforming the Penal Code so that outdated offenses are omitted, offenses entailing greater specificity are included, crimes already punishable by other legislative regulations are eliminated, and to ensure that the punishment-offense proportionality remains appropriate. The 2018 Report consists of seven chapters, comprising efforts to match advancements in technology and crime trends, to augment the protection of vulnerable persons, modernize the 150-year-old Penal Code, unify preceding Penal Code provisions, and revise incarceration sentencing standards.

    Recommended Changes to Modernizing Technology

    The Committee has suggested two predominant amendments to the Penal Code in relevance to crimes committed within a virtual platform. These recommendations consist of altering sections 22 and 378 of the Penal Code. The Committee has advised creating an extensive "definition of property which will cover intangible and incorporeal property" (s 3.1). Additionally, section 378 is called to be revised "to account for the possibility of theft of incorporeal property" (s 3.1). Under the current Penal Code, the term "property" is broadly defined, to include both immovable and movable assets. While the Penal Code's description of movable property can extend to include virtual assets, the Committee has foreseen necessity to amend the definition to specifically highlight protection over intangible goods such as virtual currency or air miles. When initially enacted, due to the technological restrictions of the era, the Penal Code could not consider misappropriation of incorporeal property. The committee notes that "the narrow historical conception of theft and dishonest misappropriation fails to protect the intangible property which is now part of ordinary life" (s 3.1.6). The Committee has proposed the new Penal Code which redefines "property" to incorporate both movable and immovable, including incorporeal property.

    The Committee has also requested an amendment to be made to section 30 of the Penal Code. This revision will broaden the legal parameters of "valuable security" to comprise electronic archives. Without revision, the technological extent of the word "document" under section 29 of the Penal Code only covers devices containing data (such as a disc), not an electronic form (such as a PDF). Section 3.4 of the Review advises applying new offenses associated with computer programs. The Committee adamantly expresses the necessity of developing "a suitable framework to address the issue of criminal liability for harm caused by computer programs." While the original Penal Code acknowledged the need to reprimand acts of omittances which caused injury through machinery use (s 287), the respective section does not target the eminent dangers computer programs pose to humans. The Committee emphasized an amendment to the Penal Code is needed which criminalizes the deceptive and psychological distress autonomous computer programming can cause. The Report suggests if "mismanaged, computer programs have the same or even greater potential for harm than machinery" (section 3.4.8). Although up to now no legislation worldwide has been passed to criminalize artificial intelligence systems, the Report indicates the Singaporean government must commit to research and pave the way to address such political concerns. According to the Committee, Penal Code reformation criminalizing negligence and risk-creation concerning computer programming could "impose potential criminal liability on (i) those who make and alter computer programs and (ii) those who use them…this offense covers acts and omission which may be merely negligent" (s 3.4.13). Under the revised Penal Code, it is likely a duty of care will be established to mitigate harms which may arise from computer programming.

    Recommended Changes to Addressing Developing Crime Trends

    The Committee also aims to expand the offenses constituting a criminal act of fraudulence. Under the new proposed recommendation, any individual who "fraudulently or dishonestly, (a) makes a representation, (b) fails to disclose information which he is under a legal duty to disclose, or (c) abuses, whether by act or omission, a position he occupies in which he is expected to safeguard, or not to act against, the financial interests of another person" (s 7.6) can be held legally culpable for an act of fraud. This suggestion is intended to parallel the UK Fraud Act 2006. The new fraud provisions will include identical sentencing practices as those currently stipulated for cheating (ss 415-420 of the Penal Code).  Two categories will exist for the new fraud offense. In the event an act of fraudulence causes injury, the offender will be subject to arrest. If fraud does not result in loss or damage, no arrest will occur. These two variants are fashioned with public policy in mind, attempting to curtail the number of fileable police reports.

                    Also relating to fraudulence, the Committee has recommended adding a provision under the Penal Code which criminalizes the obtainment of services fraudulently and deceptively. This offense will entail penalizing acts where

    • Services are obtained without full or partial payment
    • There is no intent on fully or partially pay for a product which is knowingly available on the basis that payment is expected

    The Committee has suggested that the crime of obtaining services fraudulently will be punishable with a fine and or maximum sentencing of 10 years.

    Section 12 of the Report discusses the need for creating detailed offenses for "the observation of a person in circumstances where the person could reasonably expect privacy…[and the] making, distribution, possession and accessing voyeuristic recordings." The current Penal Code does not provide specific provisions criminalizing the act of observing or recording individuals undressing or performing acts of intimacy. With this said, the Penal Code includes provisions such as "Insulting the modesty of a woman" and "Possession of obscene films" which have historically been used to punish voyeurism.  It has been argued that while voyeurism can be chargeable under various Penal Code sections, the existing provisions are ill-suited for handling issues arising from technological advancements. For example, the current law is unable to address content such as "upskirting" videos. The Penal Code recommendation branches beyond criminalizing the physical act of recording or photographing intimate situations, to deem it an offense to observe an individual in a situation where they could expect privacy. The Committee has outlined circumstances where someone could reasonably demand privacy, to include: if an individual is exposed, interacting in sexual activities, or undressing. The new proposed voyeurism rule will punish intentional acts of observation or recording without the other party's consent. Additionally, an offense will be created for the distribution and possession of voyeuristic material. Sentencing will vary via voyeuristic offense, but offenders can be sentenced to a maximum of five years imprisonment.

    Beyond voyeurism, a new offense concerning sexual exposure will be adopted. According to the Report, sexual exposure "refers to situations where an offender displays his genitals intending or knowing it likely that such display would humiliate or cause distress of fear to the observer" (s 14). The current Penal Code contains three provisions (appearing in public nude, obscene songs, and gestures insulting a woman's modesty) which relate to exposure. However, it has been argued such provisions do not fully capture sexual or malicious intent, the prescribed penalties are too little, and the exposure of genitals in a private location is not criminalized. The limitations of the Penal Code in respect to the wrongdoing of sexual motives can be illustrated through PP v Budiman Shah Mohd Noreel Azman. In this case, the defendant had molested a woman on a train and exposed himself in public on seven counts (which included sexual exposure to young adolescents). Upon his sentencing, he was only charged with committing an obscene act and faced nine months incarceration. Under the new sexual exposure provision, any offense committed against an adolescent below the age of 14 will be subject to a maximum prison sentence of two years, a fine, or caning. If the victim is 14 years or older, the offender will be issued a punishment of no more than one year (and/or the other penalties listed previously).

    Recommended Changes to Enhance Victim Protection

    One of the most critical alterations to Singapore's Penal Code involves repealing ss 375(4) and 376A (5) which establish immunity for marital rape. Efforts in 2007 were taken to withdraw marital immunity, but instead, attunement was assumed. As a result, a balance was met which dually preserved "the conjugal rights and expression of intimacy in marriage…[while] protecting women who had signaled a withdrawal of their implicit consent to conjugal relations" (s 15.7 of the Report). The Committee has asserted despite attempting to achieve an equilibrium, women's rights and protections against sexual abuse are still not protected adequately. As a result, the repeal of marital immunity for rape will be repealed in entirety. This outlawing will align Singapore with the UN General Assembly's pronouncement that marital rape is a heinous violation of human rights.

    Reviewing the Penal Code's active sexual offenses against minors, the Committee has suggested three primary recommendations: the age of consent is to remain at 16, the age of 14 will be retained as the cut-off for statutory aggression, legal protection in cases of sexual exploitation for minors from 16 to 18 should be heightened. The Committee's rationale for increased protection for this specific age demographic is as follows: the propagation of smart technology has enabled minors to be subject to higher levels of manipulation by predators. This potential for victimization provides justification to increase the minimum age for all sexual offenses involving exploitation.

    Section 17 of the Report specifies an enhancement of the maximum penalties "for offenses committed against children, vulnerable persons, and domestic maids, by up to two times the maximum punishment the offender would otherwise have been liable to." (141) While courts in Singapore typically consider the vulnerability of a victim when issuing their verdicts, current sentencing ranges debatably do not include sufficient maximum penalties for offenders. Therefore, the Committee has advised altering penalties for offenses "deliberately target[ing] vulnerable persons, on account of their vulnerabilities" (s 17.2). One amendment suggestion has encompassed expanding the spectrum of offenses under the Penal Code which relate to child vulnerability (such as crimes causing physical injury). The Committee has declared children under the age of 14 must be provided greater protection as "such young children are generally physically smaller, more naïve and easily exploited" (s 17.7).

    Penal Code s 84 currently outlines the defense of unsoundness of the mind. If an individual qualifies as being mentally unsound, their charges may be acquitted, and the individual sent to a psychiatric institution.  The Committee has acknowledged the value of retaining the provision relating to unsoundness of the mind but has requested the term be modernized. The recommended revision includes incorporating volitional disorders into the defense. The amendment is proposed as the Committee is "of the view that there is no good reason why the criminal law should not account for the fundamental principle that a person is not to be held criminally responsible for involuntary conduct" (s 24.11).

    In total, the Penal Code Review Committee's Report provides 169 amendment recommendations. Through updating and removing outdated offenses, modernizing general principles and substantive crimes, and ensuring proportionality between an offense and its respective punishment, Singapore's Penal Code will be better equipped to protect those most vulnerable and provide greater deterrence for potential offenders.  

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    Sun, 06 Jan 2019 10:55:00 GMT
    <![CDATA[Trademark Registration in Asia II]]> Trademark Registration in Asian Countries

    Country and Applicable Legislation Length of Trademark (in years) Trademark Definition Eligible Applicants Documentation Requirement Language Requirement and Procedures Treaty/ Classification Treaty/Classification Benefits

    Afghanistan

    The Trademark Law Number effective from 1 September 2009 (as amended) repealing Trademark Regulations issued on 20 September 1960. 10 Article 2 of the Afghanistan Trademark Law defines 'Trademark' to include:   Trademarks consist of (one or more) names, words, signatures, letters, figures, drawings, symbols, titles, seals, pictures, inscriptions, advertisements or packs or any other mark or a combination  1. Person(s)  desiring to have the exclusive use of a trademark for distinguishing goods for their own production, manufacture, selection or in respect of which he issued a certificate (Article 4); 2. Goods in which applicant trades or intends to trade (Article 4); 3. The owners of a commercial, industrial, telecommunications, agricultural, professional or service organization in Afghanistan (whether domestic or foreign) provided that marks are registered in Afghanistan (Article 5); and 4. owners of well-known marks (Article 7). 1. The trademark application with relevant application date is to be presented before Afghanistan Intellectual Property office (Ministry of Commerce); 2. name, address, the occupation of the applicant 3. a copy of a legalized power of attorney for any representative 4. name, description, and nature of goods, products and/or services for which trademark registration is sought; 5. representation of mark with at least 10 copies along with explanation of symbols and expressions used in the trademark with the definition of the component; 6. The registration fees payable to IP office in Afghanistan; and 7. The particulars of earlier registration in the home country or country having reciprocal arrangements with Afghanistan, if any (Article 10 of the Afghanistan Trademark Law also sets out the trademark application process). Note: Alcoholic beverages are not 1. Application can be submitted in English or Persian. The Afghanistan Intellectual Property Office (Central Registration Office) is responsible for registration (including preliminary search) in the UAE. 2. In the event of rejection, the Central Registration Office is obligated to notify the applicant as to reasons for rejection. 3. Trademarks are transferable and the transfer shall be valid if recorded separately with the Central Registration Office (Trademarks Registration Section) 1. Economic Cooperation Organization Trade Agreement seeking the cooperation of intellectual property rights protection under article 19. Note: UAE is not a member of the Madrid Convention or the Madrid Protocol. Note: Nice Classification (9th Edition). 1. Paris Convention, WIPO or any other international treaty for the Protection of Industrial Property; are NOT signed by Afghanistan and hence an applicant cannot claim priority based on their home applications/ registrations. However reciprocal arrangements are considered.

    Bangladesh.

    - Trademarks Act, 2009 Act No. XIX of 2009 and - Trademarks (Amendment) Act, 2015 - Trade Marks Rules, 1963 and; - Tradem 10 Section 2 of Bangladesh Trademark Law defines mark as "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, symbol, numeral, figurative elements, the combination of colors or any combination thereof;" and Trademark is defined as "a registered trademark or a mark used in relation to goods for the purpose of indicating a connection in the course of trade between the goods and the person having the right as proprietor to use the mark;" or "a mark used in relation to a service so that it may be indicated that the person has the right as proprietor to use the mark in the course of trade". Section 15(1) of the 2009 Act states that if the proprietor of a trademark used or proposed to be used desires to register it shall apply in the prescribed manner to the Registrar. Accordingly, the following persons can apply for an application:- 1. Natural or juristic persons of Bangladeshi nationality; 2. persons regularly residing in Bangladesh and are permitted to engage in commercial or vocational activities; 3. foreigners who are nationals of countries that extend reciprocal treatment to Bangladesh; 4. Public agencies. and owners of well-known marks. 1. Application stating the name of the legal entity, individual, or firm, addresses, the nationality of applicant/s represented in a special or particular manner along with the signature of the applicant; 2. legalized Power of attorney in cases where the application is being submitted by a representative; 3. application along with mark representation must be submitted with supporting documents and should be lithographed or in the English language in large and legible characters with deep permanent ink on strong paper; 4. in relation to affidavits, prints should be on only one side of approximately 13 inches by 8 inches, and the left-hand part to a margin of not less than one inch a half; 5. every application for the registration of a trademark shall be in respect of goods in one class and the separate application for each class shall be made for the same trademark; and 6. statement of use, if used, the registrar may require the applicant to file an affidavit testifying 1. As per the rules of 1963 with amendments all applications, notices, statements or other except trademarks authorized or required by the Act or the rules submitted to the Trade Mark Registry or left with or sent to the Registrar or the Central Government shall be written, lithographed or in the English language. 2. In case of Mark containing characters other than Roman translation in English must be provided and in case of the mark containing words he The registrar may ask for an exact translation thereof together with the name of the language, and such translation and name, if he so requires, shall be enclosed and signed. 3. The application is made to the Trademark registry and as per section 15(2) separate applications must be made for each class of goods or services. The application shall be made on Form TM-1, if in respect of non-textile goods. Defensive trademark registration can be applied by TM-3 form. 4. The opposition can be made under section 18 of the act within two (2) months from the date of publication. The registrar shall serve the notice of opposition to the applicant within one (1) month. 1. Paris Convention for the Protection of Industrial Property; 2. Nice Classification; 3. Convention Establishing the World Intellectual Property Organisation (the WIPO); and 4. World Trade Organisation (the WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) (1994) (April 10, 1996) 1. Being signatory to Paris Convention, the priority claim can be made under the convention or by WTO members within 6(six) months after the date in which the application was made in Convention Country together with the complete particulars and the certified copy of the priority application, the trademark shall, if registered under section 120 of Act and be registered as of the date on which the application was made in the Convention Country and that the date shall be deemed to be the date of registration.

    Brunei Darussalam

    The law providing for trademark registration is The Trade Marks Act (Cap 98) and Trade Marks Rules of 2000 (R 1, 1984 Ed. S 27/2000). 10 Under Part I of Brunei Darussalam Trademark Law: (Refer, section 4) Trademark is defined as "any visually perceptible sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. A trademark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging." As per section 33 of Brunei Trademark Law, the application can be made by "applicant" who has used the mark or has bona fide intention to use the mark. Accordingly following persons qualify as an applicant:- 1. Natural or juristic persons of Brunei nationality; 2. persons regularly residing in Brunei and are permitted to engage in commercial or vocational activities; 3. foreigners who are nationals of countries that extend reciprocal treatment to the Brunei; 4. public agencies; and 5. owners of well-known marks. 1. Request for registration of the trademark; 2. name and address of the applicant; 3. statement of goods and services in respect of which the trademark is sought to be registered; 4. representation of the mark; 5. statement in the application as to the use of Mark or Expression of bona fide intention to use the mark; 6. prescribed fee for each class of goods or services separately in respect of which registration is sought; and 7. Translations and/or transliterations if any required in English. 1. As stated under the rules a translation and /or transliteration, of each word in English to the satisfaction of the Registrar should be provided where a trademark contains or consists of a word/s in characters other than Roman or in a language other than English or Malay. 1. Paris Convention for the Protection of Industrial Property; 2. Nice Classification; 3. Convention Establishing the WIPO; 4. World Trade Organisation (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement); 5. ASEAN Framework Agreement on Intellectual Property Cooperation sought to explore the vision of ASEAN trademark system by establishing ASEAN Trademark office. (treaty not in force); 6. Agreement between Japan and Brunei Darussalam for an Economic Partnership; 7. Trans-Pacific Strategic Economic Partnership Agreement; and 8. Agreement establishing 1. Priority Claim can be made under Paris Convention or WTO by nationals and body corporate residing or having permanent place of business in member states within 6 months from the first filing date. 2. Agreement between Japan and Brunei Darussalam for an Economic Partnership sought proper enforcement of intellectual rights including trademark and prevent infringements by cooperation in customs for prohibiting importation and exportation of goods suspected of infringing intellectual property rights.

    Cambodia

    Law Concerning Marks, Trade Names, and Acts of Unfair Competition of the Kingdom of Cambodia 2002, (Royal Decree NS/RKM/0202/006). Sub-Decree on the Implementation of trademark law (Sub- Decree No. 46 dated July 12, 2006). Prakas on the Procedures for the Registration and Protection of Marks of Goods which include a Geographical Indication. 10 Article 2 (a) of the Cambodian Trademark Law defines Trademark as 'mark' means "any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise" and trademark under 2(c) means the "name or/ and designation identifying and distinguishing an enterprise." The application can be filed by any person or body resident in the Kindom of Cambodia can be the applicant. When the State of permanent residence of the applicant is outside the Kingdom of Cambodia, then a Power of Attorney appointing an agent should be filed within 2 months of the filing of the application. 1. Natives of the natural or legal entity, practicing any of the commercial, industrial, professional, or service business; 2. foreigners of the natural or legal entity, practicing any of the commercial, industrial, professional, business in Cambodia. 3. foreigners of natural or legal entity practicing any of the commercial, industrial, vocational or service business in any state having reciprocity of treatment with the State; 4. public legal persons; and 5. owners of well-known marks. 1. a request for registration; 2. name of applicant and address for communication bearing signatures of the applicant or representative; 3. reproduction of mark with 15 additional reproductions of the mark; 4. specification of goods or services based on Nice classification; 5. if priority is claimed the application a declaration claiming the priority of an earlier national or regional application filed by the applicant or his predecessor in title in any country member of the Paris Convention; and 6. Translations as per requirements, if any. 1. As per article 4 of the Rule, applications shall be in the Khmer or English language, and any document forming part of an application or submitted to the Registrar pursuant to the Law or this Sub-Decree and which is in a language other than Khmer or English shall be accompanied by a Khmer or English translation. 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks; 2. ASEAN Framework Agreement on Intellectual Property Cooperation (Not in force); 3. Paris Convention for the Protection of Industrial Property (22 September 1998); 4. Convention Establishing the WIPO; 5. World Trade Organisation (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994) (April 10, 1996) 6. Agreement establishing the ASEAN-Australia-New Zealand Free Trade Area; 7. Agreement between the United States of America and the Kingdom of Cambodia on Trade Relations and Intellectual Property Rights Protection; and 8. Memorandum on IP Cooperation between Cambodia and Thailand. 1. Under the WIPO-administered Madrid system, a trademark owner may protect a mark in up to 90 countries plus the European Union with its Community Trade Mark (CTM) by filing one application, in one language (English, French or Spanish), with one set of fees, in one currency (Swiss Francs). 2. The applicant can claim right to priority by attaching a declaration claiming priority of prior national or regional application in any country member of the Paris Convention. 3. Agreement between the United States of America and the Kingdom of Cambodia on Trade Relations and Intellectual Property Rights Protection – the Article XVI commits to co-operate on registration and recognization by harmonizing the requirements stating the meaning of marks, use as necessary criteria for maintaining the registration validity and adoption of the international classification. 4. Madrid protocol aids international registration of marks.

    China

    Trademark Law of the People's Republic of China amended for the third time according to the "Decision on the Revision of the Trademark Law of the People's Republic of China" adopted at the 4th Session of the Standing Committee of the Twelfth National People's' Congress on August 30, 2013) 10 Article 8 of Republic of China Trademark Law provides "an application may be made to register as a trademark any mark, including any word, device, any letter of the alphabet, any number, three-dimensional symbol, color combination, and sound, or any combination thereof, that identifies and distinguishes the goods of a natural person, legal person, or other organization   Note: China allows registration of sound and color marks Article 4 of the Chinese Trademark law provides:- 1. Natives of the natural or legal entity, practicing any of the commercial, industrial, professional, or service business; 2. foreigners of the natural or legal entity, practicing any of the commercial, industrial, professional, or service business in the State. 3. foreigners of the natural or legal entity practicing any of the commercial, industrial, vocational or service business in any state having reciprocity of treatment with the State; 4. public legal persons; and 5. owners of well-known marks. 1. Under rule 9 of implementing rules, applicant must file one application in respect of each class of goods according to the Classification of Goods stating name and address. The application must be in the Chinese language; 2. ten copies of the reproductions of Clear trademark and one copy of the black and white design with the size between minimum 5cm*5cm and maximum 10cm*10cm (the Soft copy should also be provided); 3. any application for the registration of a trademark in respect of pharmaceutic products for human use shall be accompanied by a certificate issued by the health administrative department. Any application for the registration of a trademark in respect of cigarettes, cigars or cut tobacco with packages shall be accompanied by a certificate of authorized manufacture issued by the competent authority of the State for tobacco products. Any application for the registration of a trademark in respect of any such other goods as prescribed by the State that must use a registered the trademark shall be accompanied by a certificate of authorization issued by the competent department concerned; 4. details of goods and service; 5. power of attorney duly executed by the applicant in favor of the agent; 6. copy of ID card or Passport (for the natural person); and 7. any document in a foreign language shall be accompanied by a Chinese translation thereof. 1. Under rule 14 of Implementing Rules - where a foreigner or a foreign enterprise applies for the registration of a trademark or for any other matters concerning a trademark, the Chinese language shall be used. Foreign language documents must be have Chinese translation. 2. Once an opposition is filed against the application the Trademark Office shall hear the facts and grounds submitted by the opposing party as well as the opposed, shall make a decision on whether or not to approve the application for registration within the twelve months from the date of publication after investigation and verification, and shall notify the opposing party and the opposed of its decision, in writing. If an extension is needed, upon the approval of the department of industry and commerce administration under the State Council, the time limit can be extended a further three month 1. Paris Convention for the Protection of Industrial Property; 2. Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks; 3. Convention Establishing the World Intellectual Property Organisation (the WIPO); 4. World Trade Organisation (the WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement) (1994); 5. Trademark Law Treaty; 6. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks; 7. Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China; 8. Agreement between Japan and China with Regards to Protection of Trademarks; 9. Singapore Treaty on the Law of Trademarks 1. Any foreign person or enterprise applying for the trademark in China has to file the application in accordance with the agreement between two countries, or international treaties or on the basis of principles reciprocity. Application with priority right should be filed within 6 months from the first filing date of application in another country, who is a member of Paris Convention; 2. Free Trade Agreement between the Government of New Zealand and the Government of the People's Republic of China under chapter 12 seeks to keep rights transparent by notifications and thereby protect the intellectual property rights including trademarks. 3. Agreement between Japan and China with Regards to Protection of Trademarks grants parties from contracting states protection of the well-known trademark as per their determination of well-known trademark. 4. Special provisions relating to the protection of trademarks through international registration under the Madrid protocol are laid down under Chapter IVA of 2010 Act for the international application under Madrid protocol. Before becoming the member of this protocol individual application was required to be made by the applicants seeking international trademark protection.

    Hong Kong

    Trade Marks Ordinance as amended by L.N. 254 of 2009;   Trade Marks Rules (E.R. 3 of 2015); Trade Marks Ordinance Regulation.   Trade Marks Ordinance (Amendment of Schedule 1) Regulation 2013 (HK190) 10 Under section 3 of the Hong Kong Trade Marks Ordinance (as amended by L.N. 254 of 2009) trademark is defined as: 1. "trademark" means any sign which is capable of distinguishing the goods or services of one undertaking from those of other undertakings and which is capable of being represented graphically; 2. Without affecting the generality of subsection (1), a trademark may consist of words (including personal names), indications, designs, letters, characters, numerals, figurative elements, colors, sounds, smells, the shape of goods or their packaging and any combination of such signs. 3. A sign may constitute a trademark even though it is used in relation to a service ancillary to the trade or business of an undertaking and whether or not the service is provided for money or money's worth. (4) Unless the context otherwise requires, references in this Ordinance to a trademark shall be construed as including references to a certification mark, collective mark and defensive trademark..' The Hong Kong Trademark Law does not specifically set out this information within its Acts or Rules. However, a bare reading of HK's IP Law implies that following persons are eligible: 1. Natives of the natural or legal entity, practicing any of the commercial, industrial, professional, or service business; 2. foreigners of natural or legal entity, practicing any of the commercial, industrial, professional, or service business in the State. 3. foreigners of the natural or legal entity practicing any of the commercial, industrial, vocational or service business in any state having reciprocity of treatment with the State; 4. public legal persons; and 5. owners of well-known marks. 1. Under section 38 of the Ordinance: An application for registration of a trade mark shall be filed with the Registrar in any of the official languages such as English and/or Chinese; 2. the application shall include (a) a request for registration of the trademark;(b) the name and address of the applicant; (c) a statement of the goods or services in relation to which it is sought to register the trademark; (d) a representation of the trademark; and (e) such other information, documents or matter as may be required by the rules; 3. classification of goods and services under Rule 5 of Rule 2015 and section 40 of the Ordinance is classified in accordance with the International - Nice Classification; 4. under rule 9 of 2015 rules the applicant wishes to claim a right to priority under section 41 of the Ordinance, shall include the following particulars- (a) the name of each country, territory or area in respect of which a right to priority is claimed; (b) the date of filing of the application filed in, or in respect of, each such country, territory or area; and (c) the application number assigned to that application, if it is known to the applicant; 5. translations, if any, of any word, letter or character in a language other than English or Chinese, the Registrar may require the applicant to file an exact translation of that word, letter or character into English or Chinese; and 6. Any other documents required to be verified by the Registrar. The application form is submitted in French language. Once the marks have been published in the Official Gazette, there is a set term of sixty (60) post publication date to file for opposition claims relating to domestic registrations. In case of international applications, the term is set for two (2) months from the date mark is published in Gazette. opposition term cannot be extended. 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks ; 2. Madrid Agreement Concerning the International Registration of Marks; 3. Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks; 4. Paris Convention for the Protection of Industrial Property ; 5. Trademark Law Treaty ; 6. Convention Establishing the World Intellectual Property Organization ; 7. Paris Convention for the Protection of Industrial Property ; 8. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) Morocco is a member of the Paris Convention. An applicant who has applied for a trade mark in another convention country is entitled to a priority right to be accorded the same date as the first filed application, provided the Moroccan application is filed within six months of such earlier filing date. Morocco is also a member of the Madrid Agreement and Protocol, so that registration of a trade mark may be obtained by way of an international application designating Morocco. Under the WIPO-administered Madrid system, a trademark owner may protect a mark in up to 90 countries plus the European Union with its Community Trade Mark (CTM) by filing one application, in one language (English, French or Spanish), with one set of fees, in one currency (Swiss Francs)

    India

    The Trademark Act, 1999 amended by The Trade Marks (Amendment) Act, 2010 and Trade Marks(Amendment) Rules, 2013 10 Per 1999 Act - section 2 (zb) "trademark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from choose of others and may include shape of goods, their packaging and combination of colours in relation to Chapter XII (other than section 107), a registered trademark or mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark, and in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate to a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of the permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark." Section 2 m defines mark as " "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. section 18 (1) of India's Trademark Law authorizes following persons or entities to make the application: i. Any person claiming to be the proprietor of a trade mark used or proposed to be used by him, who is desirous of registering it, shall apply in writing to the Registrar in the prescribed manner for the registration of his trademark. ii. section 36B (a) under chapter IVA as added after 2010 amendment states special provisions relating to the protection of trademark through the international registration under the madrid protocol wherein the application can be made by a person who is a citizen of, or is domiciled in, or has a real and effective industrial or commercial establishment in, that Contracting State or a State which is a member of that Contracting Organisation, as the case may be. iii. A single application can be made by different classes of goods and services and fees in respect of each such class (application is examined by the Indian Trade Marks Office) 1. The application under form prescribed as per rules stated in the first schedule of the 1999 Act along with fee; 2. soft Copy of Mark; 3. date of first use of the mark; 4. name, address, and nationality of the applicant; 5. trademark class/classification based on international classification; 6. list and description of goods or services; 7. if the mark is a script not in English or Hindi, the English translation of the mark; 8. if the application is to claim priority from an earlier filed convention application, details stating number, date, country and goods/services of that application is required. A certified priority document or it's duly the notarized copy is to be submitted. If the certificate is not in English, a certified/notarized English translation is required; and 9. Power of attorney simply signed by the applicant in favor of the agent. For Collective Marks: 1. The application shall be accompanied by regulations governing the use of such collective mark; and 2. the Regulations shall specify the persons authorized to use the mark, conditions of membership of association and conditions of use of the mark and sanctions against misuse of the mark. For Certification Marks: 1. Application for Certification marks shall be accompanied by a draft of regulations. It shall include provisions regarding cases in which the proprietor is to certify goods or services and authorize the use of certification trademark; and 2. Any other provision which the registrar may require to be inserted. The application by applicant stated under section 18 shall be made in prescribed manner to the Trade Marks Registry within whose territorial limits the principal place of business in India of the applicant or in the case of joint applicants the principal place of business in India of the applicant whose name is first mentioned in the application as having a place of business in India is situated. Where the applicant or any of the joint applicants does not carry on business in India, the application shall be filed in the office of the Trade Marks Registry within whose territorial limits the place mentioned in the address for service in India as disclosed in the application is situated. 1. The application under section 18 must be in English Section 67 B of Trademark amendment 2013 Rules amending 2002 rules states "An International application or any communication relating there too for transmission to the international bureau or any advice by way of notification of extension of protection to India resulting from international registration shall be in English". 2. A translation of non-English words into English is required in case of script is in language other than English or Hindi. 3. Any opposition must be made within four months from the date of the advertisement or re-advertisement (as amended by 2010 Act) of an application for registration or within such further period, not exceeding one month in the aggregate on payment of the prescribed fee and give notice in writing in the prescribed manner to the Registrar, of opposition to the registration. 4. The Registrar shall serve a copy of opposition on the applicant within two months from the receipt by the applicant of such copy of the notice of opposition, the applicant shall send to the Registrar in the prescribed manner a counter-statement of the grounds on which he relies for his application. 5. If the applicant sends such counterstatement, the Registrar shall serve a copy thereof on the person giving notice of opposition. 6. The Registrar shall decide the matter based on the evidence produced after hearing the parties grant or reject the application or grant with any limitations. 7. Once accepted the Registrar issues a certificate, sealed with the seal of the Trademarks Registry. 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks; 2. Paris Convention for the Protection of Industrial Property. 3. Nairobi Treaty on the Protection of the Olympic Symbol; 4. Comprehensive Economic Partnership Agreement between Japan and the Republic of India including inter alia protection of trademark under Article 106 of the Treaty. 5. Memorandum of Understanding between Switzerland and India for fostering protection and promotion of IP related rights including trademarks. 6. World Trade Organization (WTO) - Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994) 7. Agreement establishing the World Trade Organization (WTO) 1. Comprehensive Economic Partnership Agreement between Japan and the Republic of India grant parties from contracting states Article 106 protection of the well-known trademark as per their determination of well-known trademark. A request by the applicant for considering its application for registration of a trademark be examined in preference to other applications shall be considered. 2. Special provisions relating to the protection of trademarks through international registration under the Madrid protocol are laid down under Chapter IVA of 2010 Act for the international application under Madrid protocol. Before becoming the member of this protocol individual application were required to be made by the applicants seeking international trademark protection.

    Indonesia

    Trademark Law Number 15 of 2001   Indonesian Government Regulation No. 7 of 2005 on Organizational Structure, Duties and Functions Trademark Appeal Commission to implement Article 34 of Law No. 15 of 2001. 10 Article 1 of Indonesia's Trademark Act (15 of 2001) defines Mark under article 1.1 as "Mark shall mean a sign in the form of a picture, name, word, letters, figures, the composition of colors, or a combination of said elements, having distinguishing features and used in the activities of trade in goods or services. Trademark is defined under Article 1.2 as "Trade Mark shall mean a mark that is used on goods traded by a person or by several persons jointly or a legal the entity to distinguish the goods from other goods of the same kind. As per the definition of the applicant under article 1.6 applicant/s can be any party that files an application. Indonesia recognizes 'first-to–file' system. As also understood from article 3 anybody whether an owner/user or not if applies first for registration can become the registered owner of the mark which is finally accepted after completing due process. Under article 10 if an applicant resides or permanently domiciles outside the territory of the Republic of Indonesia the application must be filed through a proxy in Indonesia. A written and the signed application shall be filed in the Indonesian language under article 7 stating: 1. Date, month and year 2. Complete name, nationality, and address of the applicant 3. Complete name and address of proxy (if applicable) 4. Colors (if the mark uses color elements) 5. Country and filing date of original application (if the application is filed for priority right). 6. The application shall be signed by the applicant or his proxy. 7. Receipt of the payment. 8. If the application filed by more than one person who is jointly entitled to the mark the application shall be signed by one of the applicants entitled to the mark and be furnished with a written consent from them. 1. Applications have to be filed in the Indonesian language; 2. an application with priority right should be filed within 6 months from the first filing date of application in another country, who is a member of Paris Convention. 3. ASEAN Framework Agreement on Intellectual Property Cooperation sought to create co-operation on the protection of intellectual property rights and seeks to create ASEAN trademark registration system and is applicable to Indonesia. 4. Trademark law treaty aimed at harmonization of procedures which has been achieved to the certain extent. 1. Trademark Law Treaty 2. Convention Establishing the World Intellectual Property Organization 3. Agreement establishing the World Trade Organization (WTO) 4. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994) 5. ASEAN Framework Agreement on Intellectual Property Cooperation. 1. An application with priority right should be filed within 6 months from the first filing date of application in another country, who is a member of Paris Convention. 2. ASEAN Framework Agreement on Intellectual Property Cooperation sought to create co-operation on the protection of intellectual property rights and seeks to create ASEAN trademark registration system. 3. Trademark law treaty aimed at harmonization of procedures which has been achieved to certain extent.

    Japan

    Trademark Act (Act No. 127 of April 13, 1959, as amended up to Act No. 36 of May 14, 2014) 10 Japanese Trademark Law defines "Trademark" (Article 2 of Law) to include among those recognizable by human perception, any character(s), figure(s), sign(s) or three - dimensional shape(s) or colors, or any combination thereof, sounds, etc. provided by Cabinet Order (hereinafter referred to as a "mark") which is: (i) used in connection with the goods of a person who produces certifies or assigns the goods as a business; or (ii) used in connection with the services of a person who provides or certifies the services as a business (except those provided for in article 4: unregistrable trademark) Any person or legal entity can register the trademark. Japan also adopts the first-to-file the system in which the registration is granted to a person who has first filed an application when an application for similar or identical trademark is filed, regardless of whether the trademark has been used previously. 1. Name and the domicile or residence of the applicant for trademark registration; 2. samples of trademark (between 8cm*8cm and 15cm*15cm); 3. the description of goods and services and class of goods or services provided by Cabinet Order as provided for in Article 6(2); 4. the application shall contain thereof a statement indicating a the trademark consists of the following as listed herein; a. any character(s), figure(s), sign(s) or three dimensional shape(s) or colors, or any combination thereof, where the said character(s), figure(s), sign(s) or three- dimensional shape(s) or colors in connection with the said trademark changed; b. consists of the three-dimensional shape(s) (including the combination with any character(s), figure(s), sign(s) or three-dimensional shape(s) or colors, or any combination thereof) (excluding those listed in the preceding item); c. consists solely  the of colors (excluding those listed in item (a); d. consists solely of sounds; or e. in addition to those listed in each of the preceding items, trademarks provided by Cabinet Order of the Ministry of Economy, Trade and Industry; 5. the indication of the trademark being "standard character trademark" after trademark is sought for registration with item be above. 6. Power of attorney duly made. 7. certified copy of priority claim to seek claim under article 8 within six months from the date of application filed in member country. 1. The application and the mark are preferred in Japanese language. In a case where transliteration translation of mark is described, the examiner can use it as a reference for examination. Since the popular naming or concept of said trademark must be determined by considering the degree of recognition by Japanese consumers, the use of such description will be left to the judgment of the examiner. 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks 2. Trademark Law Treaty 3. Nice Agreement Concerning the InternationalClassification of Goods and Services for the Purposes of the Registration of Marks 4. Paris Convention for the Protection of Industrial Property 5. Convention Establishing the World Intellectual Property Organization 6. Agreement establishing the World Trade Organization (WTO) 7. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 8. Agreement between Japan and China with Regards to Protection of Trademarks 9. Comprehensive Economic Partnership Agreement between Japan and the Republic of India including inter alia protection of trademark under Article 106 of the Treaty. 10. Agreement between the Government of Japan and the Government of Malaysia for an Economic Partnership. 11. Agreement between the Government of Japan and the Government of Malaysia for an Economic Partnership for streamlining and Harmonization of Procedural Matters in Intellectual property including trademark under article 121. 12. Agreement between Japan and the Kingdom of Thailand for an Economic Partnership for harmonizing and streamlining the procedure and mutual co-operation for trademark protections. 13. Agreement between Japan and the Socialist Republic of Viet Nam for an Economic Partnership 14. Agreement between Japan and Brunei Darussalam for an Economic Partnership 1. Japanese national or foreign national residing or domiciled in Japan (or juristic person) can file an application for international registration of trademark, by Madrid Protocol, where requirements provided by Ordinance of the Ministry of Economy, Trade and Industry are applicable. 2. Japanese Patent Office has released the 'International Classification of Goods and Services, 10th Edition, Version 2015 in Japanese translation with similar group code'. Hence uniform classification is applicable to all applications. 3. Comprehensive Economic Partnership Agreement between Japan and the Republic of India grant parties from contracting states Article 106 protection of the well-known trademark as per their determination of well-known trademark. A request by the applicant for considering its application for registration of a trademark is examined in preference to other applications shall be considered. 4. Agreement between the Government of Japan and the The government of Malaysia for an Economic Partnership for streamlining and Harmonization of Procedural Matters in Intellectual property including trademark under article 126 protection of trademarks to the registered owner under article 132. 5. Agreement between Japan and the Socialist Republic of VietNam for an Economic Partnership sought to abolish the requirement of the authentication of signatures or other means of self-identification on documents to be submitted to the competent authority of the Party, including applications, translations into a language accepted by such authority of any earlier application whose priority is claimed, powers of attorney, and certifications of assignment, in the course of application procedure. Further, protection of the trademark. 6. Agreement between Japan and Brunei Darussalam for an Economic Partnership sought proper enforcement of intellectual rights including trademark and prevent infringements by co-operation in customs for prohibiting importation and exportation of goods suspected of infringing intellectual property rights.

     

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    <![CDATA[Trademark Registration in Asian Countries]]> Trademark Registration in Asian Countries

    Country and Applicable Legislation Length of Trademark (in years) Trademark Definition Eligible Applicants Documentation Requirement Language Requirement and Procedures Treaty/ Classification Treaty/Classification Benefits

    Afghanistan

    The Trademark Law Number effective from 1 September 2009 (as amended) repealing Trademark Regulations issued on 20 September 1960. 10 Article 2 of the Afghanistan Trademark Law defines 'Trademark' to include:   Trademarks consist of (one or more) names, words, signatures, letters, figures, drawings, symbols, titles, seals, pictures, inscriptions, advertisements or packs or any other mark or a combination  1. Person(s)  desiring to have the exclusive use of a trademark for distinguishing goods for their own production, manufacture, selection or in respect of which he issued a certificate (Article 4); 2. Goods in which applicant trades or intends to trade (Article 4); 3. The owners of a commercial, industrial, telecommunications, agricultural, professional or service organization in Afghanistan (whether domestic or foreign) provided that marks are registered in Afhganistan (Article 5); and 4. owners of well-known marks (Article 7). 1. The trademark application with relevant application date is to be presented before Afghanistan Intellectual Property office (Ministry of Commerce); 2. name, address, the occupation of the applicant 3. a copy of a legalized power of attorney for any representative 4. name, description, and nature of goods, products and/or services for which trademark registration is sought; 5. representation of mark with at least 10 copies along with explanation of symbols and expressions used in the trademark with the definition of the component; 6. The registration fees payable to IP office in Afghanistan; and 7. The particulars of earlier registration in home country or country having reciprocal arrangements with Afghanistan, if any (Article 10 of the Afghanistan Trademark Law also sets out the trademark application process). Note: Alcoholic beverages are not 1. Trademark application , power of attorney, and supporting documents including trademark specimen must be submitted in Arabic language. 2. The Registrar of trademarks accepts applications that are in compliance with law and procedures. Once accepted, the grant of marks is printed and published in the official gazette of Iraq thrice. Opposition claims are open for a term of three (3) months. If the Registrar does not receive any claim as to opposition of trademarks, the trademark is deemed as final and trademark certificate is issued to the applicant . 1. Singapore Treaty on Law of Trademarks; 2. Paris Convention for the Protection of Industrial Property; 3. Convention establishing the WIPO; 4. World Trade Organisation - Observer Status ( refer , column one on left) The Singapore Treaty on Law of Trademarks dated 16 March 2009 is primarily aimed at harmonising procedures of contracting parties intending to file national or regional trademark or service mark applications. The treaty comprises of 32 articles and contracting parties have the discretion to receive applications (whether in hard copy formation, electronic copies or otherwise) as per their choice. The treaty currently (as of February 2015 - source: wipo.int) comprises of 42 contracting parties

    Yemen

    Law Number 23 of 2010 being Yemen Trademarks and geographical Indications Law

    10 Article 3 of the Yemen Trademark Law defines Trademark as 'a trademark is anything of distinctive form which is visible to the eye, including names, words, letters, numbers, signatures, drawings, symbols, seals, pictures or embossment , or a particular arrangement of colour or set of colours, or any group of these features, if used or intended to be used to distinguish the products or services of a commercial, industrial, agricultural , professional or service enterprise. There is a six month term commencing from the date of publication date up to the date of registration of a trademark Article 53 of Yemen Trademark Law sets out that following persons may apply for trademark(s):- 1. Every (natural or juridicial person who is) a Yemeni who chooses to base their effective activities in Yemen; 2. every (natural or juridicial person who is) a foreigner who chooses to base his effective activities in Yemen; 3. public sector bodies and institutions; and 4. States or entities that are linked to Yemen or where Yemen has relations of reciprocity and/or has the right to request for registration of trademark in accordance with the Trademark Law of Yemen. 1. Power of Attorney certified by a competent authority if the application is made through an agent or representative of applicant;. 2. A copy of a valid certificate of incorporation or commercial register (duly legalized), providing clearly - name of entity, name of managing director, registered place of business, and related; 3. Image matching the mark to be registered so that they are clear and free from any promotional or descriptive phrases (14 copies); 4. Passport copy and personal details of applicant; 5. copy of priority document if priority is being claimed; and 6. additional attachments, if an 1. Translation in Arabic issued by the Office of certified documents and data written in a foreign language. 2. In the event applicant is claiming priority, the applicant should attach the date and number of prior application along with the name of country and authority where such prior application was made. The Law also requires applicants to submit certified photo copy of prior application within three (3) months the date priority application has been filed. 1. Paris Convention for the Protection of Industrial Property ; 2. Convention Establishing the World Intellectual Property Organization ; 3. Paris Convention for the Protection of Industrial Property ; 4. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)  

    Jordan

    Law Number 34 of 1999 Issued Pursuant to official gazette number 4389 of 1999 dated 1 November 1999

    10 Article 2 of Jordanian Trademark Law defines Trademark as "any visually perceptible sign used or to be used by any person for distinguishing his goods or services from those of others." Opposition claims can be filed within a three month term from date of publication as per Article 14 of the Law. A notice of opposition must be given in writing in the prescribed manner and should inculde a statement of the grounds for the opposition. Article 11 of Jordan's Trademark Law sets out that "any person claiming to be the proprietor of a used or proposed to be used trademark who is desirous of registering such trademark shall apply in writing to the registrar in the prescribed manner." 1. power of attorney duly signed, notarised, and legalised before Consular of Jordan; 2. applicant's personal details including name, nationality, address, and occupation where applicant is an individual; 3. applicant's company details including trade name, nationality, address, business activity, name of managing director where applicant is a corporate entity; 4. itemised list of products forming part of trademark application; 5. meaning and/or origin of the mark being registered; and 6. priority documents in the event priority is being claimed and has been certified before the competent authority 1. The forms and other supporting documents to be submitted (including power of attorney) must be in Arabic . . 1. Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks ; 2. Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks ; 3. Paris Convention for the Protection of Industrial Property ; 4. Convention Establishing the World Intellectual Property Organization ;and 5. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement ordan has been considering accession to Madrid Protocol for over an decade which (if acceded) would make Jordan compliant in trading with United States and European Union. In this regard, Jordan passed an amendments to its trademark law in the year 2007 (through Law number 29 of 2007) to access the Protocol. The Protocol has however not been implemented till date

    Algeria

    Order Number 3-6 dated 19 July 2003 dealing with Trademarks. Executive Decree Number 5 - 277 of 2005 laying down the Procedures for Filing and Issuance of Trademarks. Executive Decree Number 8-346 o f 2008 supplementing Decree 5-277 of 2005

    10 Article 2 of Algerian Trademark Law defines Trademark as "all symbols representable in writing, especially words including persons' names, letters and numbers , drawings , pictures, forms distinguishing goods or packages thereof, and colours or combination there of used to distinguish goods or services of a natural or nominal person from the goods and services of someone else." 1. Natives of natural or legal entity, practicing any of the commercial , industrial, professional, or service business ; 2. foreigners of natural or legal entity, practicing any of the commercial, industrial, professional, or service business in the State. 3. foreigners of natural or legal entity practicing any of the commercial, industrial, vocational or service business in any state having reciprocity of treatment with the State; 4. public legal persons ; and 5. owners of well-known marks. 1. power of attorney duly signed (in French language); 2. applicant's personal details including name, nationality, address, and occupation where applicant is an individual; 3. applicant's company details including trade name, nationality, address, business activity, name of managing director where applicant is a corporate entity; 4. itemised list of products forming part of trademark application (2 prints of trademark to be included); 5. meaning and/or origin of the mark being registered; and 6. priority documents (with verified French translation) in the event priority is being claimed and has been certified before the competent authority 1. The power of attorney, application form (3 print sets) and priority documents (if applicable) must be submitted in French language 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks ; 2. Madrid Agreement Concerning the International Registration of Marks ; 3. Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks; and 4. Paris Convention for the Protection of Industrial Property The Madrid System makes it possible for an applicant to apply for a trademark in a large number of countries by filing a single international application at a national or regional IP office of a country/region that is party to the system. It simplifies the process of multinational trademark registration by reducing the requirement to file an application at the intellectual property office in each country in which protection is sought. The system also simplifies the subsequent management of the mark, since it is possible to record further changes or to renew the registration through a single procedural step.

    Egypt

    Law Number 82 of 2002 on the protection of Intellectual property Rights 10 Article 63 of the Egyptian Trademark Law defines trademark as "A trademark is any sign distinguishing goods, whether products or services, and include in particular names represented in a distinctive manner, signatures, words, letters, numerals, designs, symbols, signposts, stamps, seals , drawings , engravings , a combination of distinctly formed colours and any other combination of these elements if used, or meant to be used, to distinguish the products of a particular industry, agricultural, forest or mining venture or any goods, or to indicate the origin of products or goods, or their quality, category, guarantee, preparation process, or to indicate the provision of any service. In all cases, a trademark shall be a sign that is recognizable by sight. " Article 66 of the Law clarifies "Without prejudice to the provisions of international conventions in force in Egypt, any natural person or legal entity, Egyptian or foreign, belonging to or having the center of his or its effective activity in a country or entity member in the World Trade Organization or who applies reciprocity to Egypt, shall have the right to apply for the registration of a trademark with the Department of Trade Registry in Egypt, with all attendant rights in conformity with the provisions of this Law. 1. power of attorney (Arabic) duly signed, notarised, and legalised before Consular of Egypt; 2. twelve (12) prints of trademark; 3. applicant's personal details including name, nationality, address, and occupation where applicant is an individual; 4. applicant's company details including trade name, nationality, copy of the company's article of incorporation or commercial register legalised before the Egyptian Consulate (duly translated into Arabic), address, business activity, name of managing director where applicant is a corporate entity; 5. itemised list of products forming part of trademark application; 6. meaning and/or origin of the mark being registered; and 7. priority documents in the event priority is being claimed and has been certified before the competent authority all documents (including form , incorporation documents, power of attorney and other attachments) must be submitted in Arabic language. 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks ; 2. Madrid Agreement Concerning the International Registration of Marks; 3. Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks; 4. Paris Convention for the Protection of Industrial Property ; 5. Trademark Law Treaty ; 6. Convention Establishing the World Intellectual Property Organization ; 7. Paris Convention for the Protection of Industrial Property ; 8. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) International applicants can benefit under the Madrid System by filing a single application and getting protection in multiple countries (covered under Madrid System). Under the Madrid system, a trademark owner may protect a mark in up to 90 countries plus the European Union with its Community Trade Mark (CTM) by filing one application, in one language (English, French or Spanish), with one set of fees, in one currency (Swiss Francs)

    Morocco

    Law number 23-13 amending and supplementing Law No. 17-97 on the Protection of Industrial Property (21 November 2014) 10 Article 133 of Moroccan Trademark Law defines Trademark as "For the purposes of this Law, a trademark or a service mark means a sign capable of graphic representation which serves to distinguish the goods or services of a natural or legal person. The following, in particular, may constitute such a sign: a. Denominations in all forms, such as: words, combinations of words, surnames and geographical names, pseudonyms, letters, numerals, abbreviations; b. figurative signs such as: devices, labels, seals, selvedges, reliefs, holograms, logos, synthesized images; shapes, particularly those of a product or its packaging or those that identify a service; arrangements, combinations or shades of color. c. sound signs such as : sounds, musical pieces; d. olfactory marks. 1. Natives of natural or legal entity, practicing any of the commercial , industrial , professional, or service business ; 2. foreigners of natural or legal entity, practicing any of the commercial, industrial, professional, or service business in the State. 3. foreigners of natural or legal entity practicing any of the commercial, industrial, vocational or service business in any state having reciprocity of treatment with the State; 4. public legal persons ; and 5. owners of well-known marks. 1. power of attorney (Arabic) duly signed, notarised, and legalised before Consular of Morocco to be submitted through local agent; 2. fifteen (15) prints of trademark; 3. applicant's personal details including name, nationality, address, and occupation where applicant is an individual; 4. applicant's company details including trade name, nationality, copy of the company's article of incorporation or commercial register legalised before the Morocco Consulate (duly translated into Arabic), address, business activity, name of managing director where applicant is a corporate entity; 5. itemised list of products forming part of trademark application; 6. meaning and/or origin of the mark being registered; and 7. priority documents in the event priority is being claimed and has been certified before the competent authority Note: a. For sound marks - applicants must submit musical notations (musical notes); and b. For smell marks - applicants must submit explanatory legend as to essence. The application form is submitted in French language. Once the marks have been published in the Official Gazette, there is a set term of sixty (60) post publication date to file for opposition claims relating to domestic registrations. In case of international applications, the term is set for two (2) months from the date mark is published in Gazette. opposition term cannot be extended. 1. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks ; 2. Madrid Agreement Concerning the International Registration of Marks; 3. Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks; 4. Paris Convention for the Protection of Industrial Property ; 5. Trademark Law Treaty ; 6. Convention Establishing the World Intellectual Property Organization ; 7. Paris Convention for the Protection of Industrial Property ; 8. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) Morocco is a member of the Paris Convention. An applicant who has applied for a trade mark in another convention country is entitled to a priority right to be accorded the same date as the first filed application, provided the Moroccan application is filed within six months of such earlier filing date. Morocco is also a member of the Madrid Agreement and Protocol, so that registration of a trade mark may be obtained by way of an international application designating Morocco. Under the WIPO-administered Madrid system, a trademark owner may protect a mark in up to 90 countries plus the European Union with its Community Trade Mark (CTM) by filing one application, in one language (English, French or Spanish), with one set of fees, in one currency (Swiss Francs)

    Tunisia

    Law Number 36 of 2001

    10 A trademark or a service mark is an apparent sign, which makes it possible to distinguish the goods presented or the services provided by a natural or a juridical person. In particular this sign may consists of: a. All forms of designations such as: words , groups of words , surnames, geographical names, pseudonyms, letters, numbers and symbols. b. graphic signs such as: drawings, holograms and shapes in particular those related to the p r o d u c t , its method of presentation, or those which distinguish the services , the arrangements of colors, the mixings of colors or the separation of the grades ofcolors. c. Phonic signs such as musical tunes and sentences. 1. Natives of natural or legal entity, practicing any of the commercial , industrial, professional, or service business ; 2. foreigners of natural or legal entity, practicing any of the commercial, industrial, professional, or service business in the State. 3. foreigners of natural or legal entity practicing any of the commercial, industrial, vocational or service business in any state having reciprocity of treatment with the State; 4. public legal persons ; and 5. owners of well-known marks. 1. power of attorney duly signed; 2. six (6) prints of trademark; 3. applicant's personal details including name, nationality, address, and occupation where applicant is an individual; 4. applicant's company details including trade name, nationality, copy of the company's article of incorporation or commercial register, address, business activity, name of managing director where applicant is a corporate entity; 5. itemised list of products forming part of trademark application; and 6. meaning and/or origin of the mark being registered. The application form can be submitted in English or French. 1. Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks ; 2. Convention Establishing the World Intellectual Property Organization ; 3. Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks ; 4. Hague Agreement Concerning the International Registration of Industrial Design ; 5. Paris Convention for the Protection of Industrial Property ; 6. Agreement establishing the world trade Organization (WTO) ; 7. World Trade Organization (WTO) - Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) ; 8. Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks Under the WIPO-administered Madrid system, a trademark owner may protect a mark in up to 90 countries plus the European Union with its Community Trade Mark (CTM) by filing one application, in one language (English, French or Spanish), with one set of fees, in one currency (Swiss Francs)

     

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    Tue, 17 Apr 2018 00:00:00 GMT
    <![CDATA[The Singapore companies act]]> The Singapore companies act

    Singapore is famous for three major things; finance, commerce, and transport. It is considered as "technology ready" nation. The country is also eminent for its laws and regulations, where amongst them are laws regulating the companies. The Companies Act 1967 was the primary piece of legislation which was governing the companies incorporated in the country. Ensuring the Act is kept reinvigorated with a specific end-goal to productively reflect the mirror of Singapore's quality as a worldwide business, while in the meantime fitting shields to partners, is a key concern for lawmakers. The lawful authority accessible to the board of directors are powers to follow up in the interest of their organization. The powers are not free of the organization and when in doubt, they may not do, for the sake of the organization, any action that the organization itself isn't qualified to perform.

    In Singapore, organizations are essentially represented by the Companies Act (Cap 50, 2006 Rev Ed) (theCompanies Act or the Act). It ought to be noted however that particular sorts of organizations may, notwithstanding the Companies Act, be directed by different statutes. The Companies Act does not just set up the scope of exercises that the organization may take part in however it likewise, perpetually, characterizes the forces that are assigned from the organization to its directors.

    The Companies Act formally appoints the directors with wide powers to deal with the business and undertakings of the organization. In addition, a general delegation of authority, it likewise sets out a progression of specific powers, for example, the ability to acquire up to a specific sum, the ability to decline to enlist share exchanges and to relinquish shares in specific conditions. The Companies Act additionally expresses that the directors of the organization should deal with the matter of the organization and exercise the greater part of its forces subject to the arrangements of the Companies Act. The executives are likewise in charge of the administration of the organization's business, for this reason, they may practice every one of the powers of the organization.

    Where the organization's constitution puts any limitations on the powers of the organization or on the powers of the board of director or directors, those confinements must be seen by the directors as a component of their obligations to the organization. Where an outsider manages an organization in compliance with common decency, the power of the directors is to tie the organization or to approve others to do as such, is regarded to be free of any confinement in the organization's constitution.

    Also, the Act that the outsider won't be viewed as acting in mala fide intention by reason just that he or she had prior knowledge that the activity is beyond the powers of the directors. The powers of individual directors to tie their organization are additionally influenced by the tenets rules and regulations of the law of agency. These standards apply to the assurance of whether an essential (for this situation the organization) is bound by the demonstrations embraced by people following up on its power (its operators) in their dealings with third-party.

    The Two Phases

    In 2013, the Ministry of Finance and the Accounting and Corporate Regulatory Authority of Singapore (the ACRA) counseled broadly on draft revisions to the Companies Act. On 8 October 2014, the revisions to the Companies Act were passed in Parliament and the Companies (Amendment) Bill No.25 of 2014 (the Bill)was established to actualize the proposals of the Steering Committee for the Review of the Companies Act. In April 2015, ACRA declared that the authoritative changes will be executed in two stages, the first being viable on 1 July 2015 ("Phase One") and the second being powerful Q1 2016 ("Phase Two").

    Why change?

    The Bill acquaints far-reaching revisions with the Companies Act, looking to:

    • diminish the administrative weight of organizations, making it simpler for them to work together in Singapore;
    • advance more prominent business adaptability, pleasing distinctive sorts of business and methods for raising capital; and
    • enhance the corporate administration scene, guaranteeing more noteworthy responsibility and straightforwardness.

    Different partner gatherings, for example, open organizations, privately owned businesses, Small-and-medium enterprises(SMEs) and retail speculators will profit by the progressions set out in the Bill.

    Forms of Company

    Limited Liability Partnership (LLP)

    Section 2 (1) of the Limited Partnerships Act, 2005 (the LLP Act)defines the Limited liability partnership as what is mentioned under Section 4 of the LLP Act. Section 4 defines the Limited liability partnership as:

    (1)    "A limited liability partnership is a body corporate which is formed by being registered under this Act and which has the legal personality separate from that of its partners;

    (2)    A limited liability partnership shall have perpetual succession;

    (3)    Any change in the partnerships of a limited liability partnership shall not affect the existence, rights or liabilities of the limited liability partnership."

    The LLP Act under Section 22 mentions that there must be a minimum of two (2) partners in the company. Whereas, the liabilities of all the partners are expressly mentioned under Section 8(1), (2) and (3) of the LLP Act, which expresses that the partners are by and by not obligated for reimbursement, appraisal or something else. However, they are at risk in tort for the wrongful demonstration or exclusion for different partners of the LLP. Further, S.23(1) states that at least 1 director/ manager is required for an LLP in Singapore. Directors/managers are at risk for issues that are secured under S.24 of the Act, they are likewise at risk for punishments forced on the LLP under S.23(3)(b).

    Also, in accordance with sections 17 of the Companies Act, there are three forms of companies that can be incorporated in Singapore namely:

  • Company limited by Guarantee;
  • Company limited by shares;
  • Unlimited company
  • Corporate Governance under the new law

    I.            The detachment of Ownership and Management

    In accordance with Section 157Aof the Companies Act expresses that the matter of the organization might be overseen by or under the course of the chiefs. The executives may practice every one of the forces of an organization with the exception of any power that the Act or the organization's constitution of the organization requires the organization to practice when all is said in the done gathering. This reflects one of the highlights of organization law, to be specific, that it can encourage a partition of possession and administration. The individuals or investors who possess the organization require not really be associated with its administration as directors. While in a few organizations, the individuals from the organization may likewise be associated with its administration - either as director/manager or in some other official limit - in different organizations, the individuals are not engaged with the administration. Rather, such organizations are overseen by sheets of executives in which a significant number of the directors are not individuals from the organization.

    II.            Statutory Duties

    Subject to Section 157 of the Act - Directors owe trustee obligations to their organizations:

    Under the common law, directors are viewed as trustees and in this manner owe fiduciary obligations to their organizations. In the meantime, the Act likewise endorses certain obligations on directors which reflect their general obligations under the customary law. One vital arrangement is section 157(1) of the Act which endorses that an executive might constantly act sincerely and utilize sensible determination in the release of the obligations of his office. Section 157(2) of the Act goes ahead to express that an officer or operator of an organization should not make uncalled for utilization of any data obtained by righteousness of his position as an officer or specialist of the organization to pick up, specifically or by implication, preference for himself or for some other individual, or to make inconvenience the organization.

    Section 157 makes certain obligations compulsory and does not criticize existing rules:

    Section 157 of the Act does not indicate to be a thorough proclamation of the law identifying with the obligations that executives owe to their organizations. In such manner, Section 157(4) gives that the segment is notwithstanding and not in disparagement, of some other run of law identifying with the obligation or risk of executives or officers of an organization. The impact of  Section 157 is to render the statutory obligations obligatory while the obligations at custom-based law are equipped for prohibition by an understanding between the organization and its chiefs, expecting that the organization has settled on such a choice autonomously of the intrigued executives. Under section 157(3) of the Act, a rupture of Section 157(1) and 157(2) renders the officer or specialist at risk to the organization for any benefit made or any harm endured by the organization because of the break. In the meantime, a break of these areas is an offense, and the officer or specialist should be subject upon conviction to a fine not surpassing USD 5,000 (United States Dollar five thousand) or to detainment for a term, not more than one year.

    III.            The obligation under Common Law to Act to the greatest advantage of the Company:

    Courts won't substitute possess judgment for that of executives

    While practicing their obligations, directors (and the organization's senior administrators) must act real in what they consider is to the greatest advantage of the organization. At the point when the demonstrations of managers are tested, the courts don't substitute their own particular judgment for that of the directors as outrightly mentioned by the judges in these landmark cases,ECRC Land Pte Ltd v Wing On Ho Christopher [2004] 1 SLR 105 and Vita Health Laboratories Pte Ltd v Pang Seng Meng [2004] 4 SLR 162. All that the courts are worried about is whether the managers have acted sincerely in what they (and not the courts) thought to be in the organization's best advantages. Obviously, if the choice is one that no sensible board would have touched base at, this gives occasion to feel qualms about genuine the honesty of the directors.

    Directors are qualified for have regard to interests of individuals and members despite the organization's separate identity

    It ought to be noted however that, while the directors' abrogating obligation is to the organization, Section 159 of the Act gives that in practicing their powers, directors are qualified for have respect to the interests of the organization's workers for the most part, and additionally the interests of its individuals. That director may have respect to the interests of its individuals is likewise the position at customary law since the members collectively considered as a company despite the organization's different identity. The qualification to have respect for the interests of representatives is additionally a sensible one since propelling the interests of workers will frequently be to the greatest advantage of the organization.

    IV.            Impact of Breach of Fiduciary Duties

    In the event that a director places his own advantages over those of the organization, the executive will be obligated for any misfortune caused by the organization. On the off chance that the director has benefitted from his position without the informed assent of the organization, the director may need to represent the benefits of the organization. Where the director has contracted with the organization, for example, the director has sold an advantage for the organization, the organization might have the capacity to keep away from the agreement if the agreement with the organization was gone into in break of the executive's trustee commitments to the organization. Where an outsider has gone into an agreement with the organization realizing that the executives of the organization have acted shamefully, the organization may likewise have the capacity to keep away from the agreement opposite the outsider.

    ]]>
    Sat, 24 Mar 2018 16:40:00 GMT
    <![CDATA[Technical Aspects of Aircraft Lease]]> Technical Aspects of Aircraft Lease

    (Part II of II)

    In the previous issue, we discussed the various categories of aircraft lease such as a wet lease, dry lease, and damp lease. We also covered broadly the legal requirements for leasing an aircraft in the UAE and its implications. The aviation lawyers at STA continue with part II of this series and discuss the technical and legal dimensions of aircraft lease in India and Singapore.

    India

    The Director-General of Civil Aviation (the DGCA) under Government of India is the authority regulating civil aviation industry. Following are the regulations which govern the legal aspects of leasing by Indian operators of Indian or foreign registered aircraft. DGCA's authorization or permission is mandatory before leasing an aircraft in India.

    The lease to an Indian operator with or without change of aircraft registration is a "lease in" whereas "lease out" is referred to the lease of Indian registered aircraft to a foreign operator with or without change of aircraft registration. Leasing between scheduled and a non-scheduled operator is not permitted, and it should be between two scheduled or two non-scheduled operators.

    Leasing process

    The parties, to get aircraft on lease, must submit an application before DGCA (Air Transport Directorate) for approval of lease arrangement. The Indian operator or registered owner shall submit the following document(s) before forty-five (45) days of proposed commencement of operations: (a) 3 sets Aircraft Leasing Form (LF-1 - foreign registered aircraft leased to Indian operators);(LF-2 - Indian registered aircraft leased to foreign operator); (LF-3 -  leasing planes by an Indian from another Indian player to ) (b) a copy of the lease agreement and other documentation that confirms compliance with Section 3, Air Transport Series 'C' Part I - Civil Aviation Requirements (c) Consent of Foreign Civil Aviation Authority – which is required before a leasing permission.

    Requirements

    While granting permission for a lease arrangement, the DGCA (ATC) will examine fulfillment of certain requirements which are as follows:

           I.          Foreign registered aircraft can be leased by Indian operator if they are operating at least one aircraft registered in India on its Air Operator Permit (AOP). Further, the aircraft eligibility requirement is provided to be considered eligible for seeking permission:

                               i.          It must be in DGCA–type acceptance list;

                              ii.          registered with the foreign State;

                             iii.          have a valid Certificate of Airworthiness, and

                             iv.          will not be the subject of another lease in the term of the lease authorized by DGCA for that specific aircraft;

                              v.          less than 15 years of age for passenger transportation and less than 25 years of age for cargo operations;

                             vi.          Further, the aircraft should not have completed more than 45,000 pressurization cycles free from accident or seventy-five (75%) of its design economic life and have its maintenance program approved by the foreign regulatory authority.

         II.          For Indian registered aircraft leased to the foreign operator, it is required that the Indian air operator does not lease aircraft exceeding 25% of the total number of Indian aircraft registered of that operator to a foreign air operator.

        III.          The Indian operator leasing the aircraft to Indian operator shall not lease if such lease will affect disruptively the lessor's own schedule.

    General requirements include inspection of aircraft and review of maintenance records for long-term airworthiness for aircraft that are subject to Airworthiness Directive (AD) with particular attention to factors stated in Civil Aviation Requirements (CAR). If the foreign air operator maintains the aircraft, the organization that will perform and certifies the work must have a valid maintenance approval for the aircraft type which is the subject of the leasing transaction, issued by the airworthiness authority of the country of the lessee. This permission will ensure that an evaluation of the maintenance organization has been carried out by the respective foreign civil aviation regulatory authority.

    Additionally, if the Indian operator leases the aircraft to a foreign operator, the DGCA inspectors will evaluate the external air operator's ability to maintain the plane to the Indian airworthiness standards by:

    (i) investigating the suggested maintenance facility; (ii) reviewing the qualification(s) of maintenance personnel; (iii) supervising certification responsibilities; (iv) ensuring the operator is informed of and will comply with Indian standards in all respects; and (v) review foreign maintenance laws to determine their norms and whether they conflict with the Indian rules.

    Wet and damp lease requirements

    The lessor is liable for operational control of the aircraft during the term of the lease. In a damp lease, the operational monitoring and qualification(s) of crew provided by the lessee should be addressed and aligned along with the lessor's operations policies. Wet or damp lease (in) is permitted only in emergency situations by the DGCA. Situation(s) cover unexpected grounding of the aircraft holding existing AOP/AOC, aircraft(s) under scheduled maintenance or checks or in any other unforeseen circumstances.  In above cases, wet leasing is permitted only for the duration of the grounding of aircraft. Further, Wet or damp lease (In) is not entitled to capacity or route expansion purpose of an existing AOP/AOC holder. The abovementioned provisions will not apply in the case of lease executed by the government.

    Dry lease requirements

    The lessee is liable for the operational control of the aircraft under its AOP/AOC for the duration of the lease. The period is twelve (12) months, subject to one-time extension of additional twelve (12) months. All the requirements relating to foreign registered aircraft will uniformly apply to a dry or wet lease.

    Airworthiness Requirements

    The foreign aircraft must be certificated as per FAA/EASA regulations. To be imported, they shall meet the age criteria as stated above and as laid down in DGCACAR Section 2, Series F, and Part XX.

    The aircraft should have following valid certificates issued by the State of Registry at the time of import:

           i.          Certificate of Registration

          ii.          Certificate of Airworthiness

         iii.          Airworthiness Review Certificate (if applicable)

         iv.          Noise Certificate

          v.          Weight Schedule

         vi.          (LOPA) Layout Plan of Passenger Arrangement or (EELC) Emergency Equipment Location Chart

       vii.          Aero Mobile Station License

      viii.          Air Operator Certificate/Permit

    It is the responsibility of Indian operator to ensure that the above documents remain valid during the entire term of the lease. The aircraft should conform with the minimum equipment requirements specified in applicable CARs of DGCA. CAR Section 3 –Air Transport Series 'C', Part XIII, Issue I has laid down the training and operations criteria.

    The restrictions attached to wet lease makes it difficult for Indian operators to lease for short term and the dry lease has, therefore, become a more prevalent practice in India while considering leasing option. Negotiating with the understanding of regulations will provide better leasing partnership clauses.

    Singapore

    Singapore provides benefits of the Aircraft Leasing Incentive Scheme (ALS) to an approved aviation leasing companies which derive income from the onshore or offshore leasing of any aircraft or aircraft engine or any other prescribed activity.  A concessionary tax rate of 5% or 10% for five years provided to such approved aircraft leasing companies.

    An ALS approved company, on a case by case basis, may apply to a withholding tax (WHT) exemption at interest and qualifying related payment(s) from qualifying foreign loan(s) that finance the acquisition of the aircraft or aircraft engines. WHT exemption for interest and qualifying payments on loans undertaken by ALS approved companies from non-resident lenders (excluding permanent establishments in Singapore) obtained before 31 March 2017 to finance the purchase of aircraft or aircraft engines is attached to ALS.

    The Civil Aviation Authority of Singapore (the CAAS) deals with regulations on the civil aviation industry. The reference to regulatory regime discussed for this country is a reference to AC AOC-8(2) dated 11 April 2011 which is advisory circular, except provided otherwise. Under Singaporean law as well leasing in of foreign registered aircraft by a Singapore AOC holder is called "lease in" and lease (out) of Singapore registered aircraft to an international operator is called "lease out" and lease of Singapore registered aircraft between Singapore AOC holders is called "Intra-State Wet Lease."

    CAAS' leasing policy under Clause 13 lays down obligations expected from lessee and lessor in operational leases (which includes wet and dry lease).

    Wet lease

    The obligations laid down for wet lease are as follows:

           i.          The parties must hold valid air operator certificates throughout the duration of the term of the lease.

          ii.          The lessor must have operational control of the aircraft.

         iii.          For wet leasing arrangements among Singapore air operators, the lessee should assure that the lessor maintains the aircraft through the lessor's approved maintenance program.

         iv.          For wet lease in arrangements, the lessee must ensure that reportable occurrences and incidents affecting the leased aircraft are reported to CAAS.

    Duration of the wet lease in is stated to be six months, subject to a one-time extension of an additional six months. Whereas, wet lease out can be for twelve (12) months.

    Dry Lease

    For dry lease-out arrangements, the lessee should control the subject aircraft as per Singapore requirements. For dry lease in arrangements, the lessee should ensure that the plane equipment relating to flight operations meets Singapore's standards.

    Duration of a dry lease in is 12 months, and dry lease-out is also 12 months, subject to a one-time extension of an additional 12 months.

    General Requirements

    In all types of leasing arrangements, paragraph 88 of the Air Navigation Order (ANO) requires Singapore AOC holders to report to CAAS all reportable occurrences involving the leased aircraft. CAAS may, on a case by case basis, prescribe additional requirements relating to the lease arrangement. Intra-State wet lease duration is provided for 12 months, subject to a one-time extension for an additional 12 months. Singapore AOC holders that need to rent an aircraft for a period longer than the stipulated term in Table 2 i.e. as provided above for wet, dry lease and the Intra-State wet lease will need to provide justifications to CAAS for the requested extension of contract duration. CAAS' approval for lease arrangements involving Singapore AOC holders and Singapore registered aircraft is mandatory before executing the lease. 

    Maintenance Organization Approval (SAR-145)

    Any organization intending to maintain a Singapore-registered aircraft or component fitted on Singapore-registered aircraft shall hold a SAR-145 Maintenance Organization Approval.

    Singapore Airworthiness Requirements

    Various CAAS revisions issues and the latest being Revision 25 (issue 2) dated 11 January 2017 of Revisions Number 21 (Issue 2) which was valid from 9 February 2015 has laid down the airworthiness requirements of Singapore. Singapore Airworthiness Requirements (SAR) has set out the minimum requirements in respect of maintenance requirements, airworthiness of aircraft, licensing of aircraft maintenance engineers, aircraft engineering, and the approval of persons and organizations. Failing to comply with the provisions provided in SAR cause suspension of or revocation of, the license and approval and may be subject to the penalties provided under Thirteenth Schedule and the section 80 (5) and (6) of the ANO which includes fine as well as imprisonment up to 5 years.

    After submitting an application for airworthiness before DGCA, an inspection of all the relevant data and records (as stated in Appendix I of chapter 2.2 under SAR) should be produced. Under the Appendix different documents as per new aircraft, first-of-type aircraft, and used aircraft. The general requirement(s) for a new aircraft include the documents such as list of Service Bulletins (including Alert Service Bulletins on aircraft engines, propellers (as applicable) and equipment, equipment list, noise certificate, etc.), Export Certificates of Airworthiness for the aircraft, engines, and propellers (as applicable) etc.

    Conclusion

    Singapore is striving to be aircraft leasing hub of Asia by providing various incentives in the form of ALS and WHT. Further, Singapore also added explicit declaration under the Cape Town Convention for availing self-help remedies for creditors thereby facilitating creditors and insolvency administrators under Singapore Cape Town Act a better option for deregistration of the aircraft and the possession of aircraft by exporting and physical transfer of the plane from Singapore. An authorized party can exercise this through lodging of an irrevocable de-registration and export request authorization with the CAAS. Ergo, it is evident that Singapore is certainly challenging Ireland's position as leading aircraft leasing country though Ireland has retained its global clientele.

    ]]>
    Wed, 15 Nov 2017 00:00:00 GMT
    <![CDATA[Новый Кодекс Сингапура о Слияниях и Поглощениях]]> Новый Кодекс Сингапура о Слияниях и Поглощениях   Наше нынешнее капиталистическое общество создало атмосферу интенсивной конкуренции. Конкуренция - это не самое худшее в мире, это одна из самых важных причин, по которой мы получаем высококачественные продукты и услуги. Потребительские настроения только усиливаются и увеличиваются из-за чрезмерного количества выбора, с которым мы сталкиваемся каждый день.    Как бизнес справляется с этим соревнованием, когда оно становится слишком чрезмерным  и грозит утянуть его на дно? Умные предприятия и владельцы бизнеса осознают ценность своих конкурентов. Они понимают спрос и потребность в продуктах своей оппозиции и находят способ предоставить эти продукты потребителям, которые были бы разочарованы их отсутствием. Они делают это путем организации слияния и поглощения.   Google славится своей способностью распознавать опасность на рынке, опережая своих конкурентов, о чем свидетельствует их приобретение YouTube в 2006 году, всего через 20 месяцев после основания веб-сайта (за цену в размере 1,65 млрд долларов). Несмотря на утверждения о проблемах с авторским правом и возможностях судебного разбирательства, скептики должны были съесть свои шляпы после того, как признали явную технологическую и инновационную силу, которую Google получил с приобретением YouTube. Это, пример того, как конкуренция может быть использована для взаимной выгоды.   Одним из самых ошеломляющих предложений о слиянии в новейшей истории стало приобретение Facebook WhatsApp за гигантскую сумму в 19,6 млрд долларов в 2014 году. Эта компания зарабатывает около 20 миллионов долларов в год, так зачем же Facebook беспокоился о приобретении этой компании за эту огромную цену? Два слова. Рост пользователей. Только около 62% пользователей Facebook активны ежедневно, тогда как WhatsApp видит активность в 70% своих пользователей. Он добавляет миллион пользователей в день, и в настоящее время его услугами пользуются 500 миллионов человек. Несмотря на запуск в 2009 году, ожидается, что в скором времени он достигнет 1 миллиарда пользователей. Facebook был запущен в 2004 году и достиг миллиарда пользователей только в декабре 2014 года.    Обе эти компании принимали разумные и обоснованные решения для обеспечения собственного успеха, принимая во внимание потребности потребителя. Когда дело касается юридических вопросов, подобные слияния, конечно же, связаны с определенными сложностями и нюансами. Если бы ясность и простота могли быть введены в эти юридические структуры, бизнес бы процветал.     В этой статье рассматривается, как Сингапур признал необходимость ясности и внедрил это в свои законы и кодексы.   Сингапур - одна из самых успешных стран в мире со свободной рыночной экономикой. В нем создана удивительно открытая, свободная от коррупции среда, стабильные цены и ВВП на душу населения выше, чем в большинстве развитых стран.    Его экономика в большой степени зависит от экспорта, в частности от потребительской электроники, продуктов информационных технологий, медицинских и оптических устройств , фармацевтических препаратов. Это также зависит от его развитых транспортных систем, бизнеса и сектора финансовых услуг. Однако главной движущей силой этой экономики является ее четкая и простая нормативная база, которая обеспечивает значительные преимущества для инвесторов, которых, следовательно, привлекают  инвестиционные возможности в этой стране.   Одним из последних изменений в вышеупомянутой нормативной базе Сингапура является Сингапурский кодекс о Слиянии и Поглощении (Кодекс). Кодекс был пересмотрен Денежно-Кредитным Управлением Сингапура (MAS) по рекомендации Совета Индустрии Ценных Бумаг (SIC). Кодекс был пересмотрен MAS в соответствии с Разделом 139 (6) Закона о ценных бумагах и фьючерсах с 25 марта 2016 года.   В свете последних событий на рынке и развития международной практики, Сингапурский SIC выпустил документ для консультаций, в котором предлагаются поправки к Кодексу, которые помогут:   i. Обеспечению большой определенности в отношении применимых процедур и сроков для предложений конкурентного поглощения, ii. Предоставлению дополнительных указаний относительно поведения во время предложения и правил для своевременного предоставления информации и iii. Систематизации и упорядочению существующей практики   Следуя обратной связи во время консультации, предлагаемые изменения были в основном приняты в том виде, в каком они были предложены, за исключением нескольких корректировок, которые изложены ниже.   Ключевые Изменения   Ключевыми изменениями в Кодексе являются:
  • Уточнение, что в конкурентной ситуации расписания предложений будут согласованы с последним предложением;
  • Предписание процедуры аукциона по умолчанию, если ни один из оферентов не объявил свою окончательную цену предложения на более поздних этапах периода предложения;
  • Продление срока для потенциально конкурирующего оферента с целью разъяснения его намерений;
  • Разъяснение того, что ходатайство по конкурирующему предложению или ведение процесса продажи не равносильно расстройству существующего предложения и в том числе заявление о том, что в случае сомнений следует провести консультации с SIC;
  • Уточнение того, что правление офферента может рассмотреть возможность совместного обсуждения прогнозов в области управления с его независимым финансовым консультантом;
  • Изменения в том случае, если никакое увеличение и никакие заявления о расширении не могут быть отменены после выпуска новой информации компанией-адресатом;
  • Обеспечение расчетов по акцептам в течение 7 рабочих дней (вместо 10 дней);
  • Требование оперативного раскрытия любых существенных изменений в информации, ранее опубликованной в предложении, с тем чтобы акционеры и инвесторы были своевременно информированы о существенной информации; а также
  • Систематизация и упорядочение существующей практики, относящейся к предварительным условиям, позволяющим размещать предложения в адрес компаний-оферентов в более ранний период в пред-условном предложении, а также расчет стоимости сопоставимых предложений для разных классов акций.
  •   Процедура Измененного Аукциона - процедура открытого аукциона, которая повторяет конкурентный процесс, который может продолжаться до 46 дней без какого-либо ненадлежащего продления. Эта процедура аукциона должна быть надежной и простой, и применяться повсеместно к конкурирующим предложениям, охватывающим все формы рассмотрения. По замыслу, это прозрачный процесс, который фокусируется на финансовых условиях предложений для достижения финализации.   Предлагаемые Изменения   С учетом отзывов, полученных в ходе консультаций, были внесены предлагаемые поправки. К ним относятся:
  •  Оплаченный пресс-релиз - Согласно примечанию 7 к Правилам 3.1, 3.2 и 3.3, платная реклама может быть опубликована в самой широко распространенной ведущей англоязычной газете, а не в двух ведущих английских газетах. SIC также пояснил, что «публикация ежедневно» во избежание сомнений, это «публикация каждый день, кроме воскресенья».
  • Запрос конкурирующего предложения - SIC разъяснил, что намерение заключается не в том, чтобы налагать обязательство по поиску конкурирующего предложения, и что он считает предлагаемые поправки  достаточно ясными. Тем не менее, он добавил в примечании 8 к Правилу 5 заявление о том, что с ним следует обращаться в случае возникновения сомнений.
  • Существенные изменения в новой или опубликованной информации - Предложения, сделанные во время консультации, включали согласование требований Кодекса для быстрого раскрытия изменений ранее раскрытой информации или новой информации в правилах SGX по раскрытию информации, включая исключения, предусмотренные в этих правилах. Это не было принято. SIC указал, что стороны могут консультироваться с ним в случае необходимости и добавить примечание 1 к Правилу 8.1, чтобы напомнить сторонам об этом.
  • SIC также считает, что Кодексу не представляется возможным изложить все обстоятельства, при которых существенное изменение информации потребует от совета оферента и независимого финансового консультанта («IFA») обновить свои рекомендации. В примечание 1 к Правилу 8.1 были внесены поправки, предусматривающие, что такая информация должна быть принята во внимание, и в          случае необходимости правление получателя и IFA должны внести поправки в свои рекомендации и что в случае сомнений следует проконсультироваться с SIC.

  • Акционерное Общество и Сделки - В правило 24.3 внесены поправки, разъясняющие, что применимый период раскрытия информации о сделках должен составлять 3 месяца в случае добровольных предложений.
  • Расписание предложения после окончания аукциона - Корректировки были внесены в расписание после окончания процедуры аукциона. Предельный срок для публикации пересмотренных оферт-документов -через 7 дней после окончания аукциона. Получатель оферты должен опубликовать свой циркуляр в пересмотренном предложении не позднее, чем через 7 дней после опубликования пересмотренного документа о предложении. Самая последняя дата, по которой конкурирующее предложение может стать безусловным в отношении акцепта, - через 7 дней после публикации пересмотренного документа о предложении..
  •   Главная Цель и Ожидания от Нового Кодекса   В Кодекс были внесены поправки, с тем чтобы:   i.    Уточнить стандарты, которые требуются от предварительных условий в предварительном условном предложении,  ii.    Разрешить компании-получателю ходатайствовать об одобрении публикации документа о предложении на более раннюю дату в пред-условном предложении и iii.    Уточнить, как должна рассчитываться стоимость предложения для другого класса акций.   Слияние и объединение компаний в Сингапуре регулируются неконституционными правилами в Сингапурском кодексе, который администрируется Советом Индустрии Ценных Бумаг (SIC). Кодекс о Слиянии стремится обеспечить условия, чтобы овладение и объединение осуществлялись в соответствии с хорошей деловой практикой для справедливого и равного отношения ко всем акционерам. SIC не занимается коммерческими преимуществами овладений и объединений.   Эти изменения, которые были предприняты Сингапуром, создали отличный прецедент для принятия ясности и прозрачности, когда дело доходит до конкурсных предложений об объединении, к которым может обратиться наиболее развитые страны.   ]]>
    Sat, 20 May 2017 09:00:00 GMT
    <![CDATA[Столкновение Юрисдикций: Применение исламских принципов финансирования в соответствии с Английским правом. ]]> Столкновение Юрисдикций

    Применение исламских принципов финансирования в соответствии с Английским правом.

    Как и в любой религии, можно утверждать, что в исламе существует спектр религиозной набожности, начиная от тех, кто строго следует учению Корана, до тех, кто редко ощущает на себе воздействие веры каждый день. В странах, где присутствуют как обычные, так и шариатские банки, есть варианты для каждого инвестора, набожного или нет, мусульманина или светского человека. В последнее десятилетие наблюдается быстрый рост исламского финансирования на международном и внутреннем уровне. Этот рост сопровождает возросшее число споров, связанных с исламским правом. Этот факт остается неизменным, даже если основное право договора является общим правом или гражданским правом страны. Если судьи или законодатели не в состоянии понять аргументы специалистов по исламскому финансированию в области использования законов шариата, то результатом могут быть прецеденты и законы, которые могут препятствовать росту мульти миллионной индустрии!

    Лорд Аскуит отказался применять положения закона шариата в случае Petroleum Development (Trucial Coasts) Ltd. Против шейха Абу Даби. Он цитирует: «Было бы фантастикой предположить, что в этом очень примитивном регионе есть какие-либо установленные органы правовых принципов, применимых к построению современных коммерческих инструментов». Однако, если бы Лорд Аскуит мог предвидеть будущее, он бы тщательно подбирал слова, прежде чем высказывать далеко идущие суждения о неадекватности законов шариата. Он не имел понятия, что годы спустя, Великобритания будет на девятом месте по размещению активов согласно шариату и станет первой западной страной, выдающей суверенный сукук. Исламское финансирование укрепляется на мировом финансовом рынке как коммерчески жизнеспособная альтернатива традиционному финансированию. Примечательно, что сделки, осуществляемые в исламском финансовом секторе, более не привязаны к странам, где правовая система основана на принципах Шариата.

    Однако шариатские структуры исламских финансовых инструментов сталкиваются с серьезными препятствиями, когда они должны применяться в неисламской нормативно-правовой базе. Большинство стран не имеют правового механизма для реализации законов Шариата в финансовых структурах. Более того, западные суды не имеют необходимого опыта или ресурсов для толкования и обеспечения исполнения исламских финансовых операций, а также документов, основанных на принципах шариата.

    Примерно в первые 500 лет после Хиджры, исламское право быстро развивалось для удовлетворения потребностей исламской империи и ее все более сложных коммерческих сделок. Однако с течением времени больше внимания было уделено юридическим аспектам и меньше возможностей было оставлено для оригинального мышления по прямым ссылкам на Коран. Это называется закрытием ворот иджтихада. Результатом явился застой правового мышления ведущих мусульманских ученых-интеллектуалов. Таким образом, мы видим, что трансграничные контракты исламского финансирования написаны в соответствии с английским правом. Основная причина этого в том, что английское право обеспечивает более высокий уровень уверенности договаривающихся сторон, чем при попытке составить договор в соответствии с нормами исламского права. Журнал Global Islamic Finance Magazine недавно провел интервью, в котором объяснил, почему английское право является предпочтительным для международных сделок исламского финансирования.

    Правоприменение

    Medjella считается первой попыткой кодифицировать исламское право и представляет собой усилия Османской империи. Medjella посвящает целую главу арбитражу, указывая в ней, что «решение, справедливо вынесенное арбитрами в соответствии с нормами права, является обязательным для всех сторон». Решения арбитров не могли быть исполнены без подтверждения судьи, и только в случае, если они соответствуют закону. В мире шариатского финансирования никогда не было более открытого урегулирования споров через арбитраж. В прежние времена, и в некоторой степени сегодня, ученые исламского права считали исполнение решения арбитра исключительно правом судьи.

    Прежде всего, однако чрезвычайно важно понять, почему особенный акцент был сделан на рассмотрении вопросов приведения в исполнение. Как правило, стороны сделки тщательно изучают соответствующий управляющий закон, для того чтобы понять, будут ли их права и обязанности соблюдены последовательным и прозрачным образом. Основной функцией закона в любой коммерческой или финансовой операции является обеспечение значительной степени определенности и приведение в исполнение намерений сторон относительно их обязательств. Выбор права в отношении исламских финансовых сделок является более деликатным, так как стороны естественно захотят сделать выбор в пользу исламского права в качестве регулирующего в финансовых документах. Тем не менее, стороны не могут просто принять законы шариата в качестве регулирующих без привязки к конкретной юрисдикции, поскольку законы шариата не являются стандартным кодифицированным законом. Поэтому кодифицированная правовая система, которая осуществляет принципы законов шариата часто используется в качестве регулирующего права для обеспечения большей определенности по вопросу о правах и обязанностях сторон.

    Это получило резонанс в громком судебном процессе Банка Шамиль в Бахрейне против Beximco Pharmaceuticals Ltd (Случай Банка Шамиль), в котором обсуждались масштабы и толкование законов шариата по отношению к английскому праву. В обсуждаемом случае подсудимые не в состоянии были осуществлять платежи по договору мурабаха (Договор), заключенному с истцом и впоследствии, последний потребовал взыскания суммы задолженности в соответствии с положениями Договора. Основной пункт Договора гласил, что «при условии соблюдения принципов славного Шариата, соглашение будет регулироваться и толковаться в соответствии с законами Англии». Ответчики утверждали, что Договор имеет скрытую форму риба, которая противоречит принципам шариата и, следовательно, не имеет законной силы. Таким образом, главным предметом споров в апелляционном суде, была необходимость рассмотрения закона шариата в положении основного закона.

    Банк Шамиля был положительно принят экспертами в двух своих основных положениях, касающихся Шариата как выбора права, а именно: а) Римская Конвенция, которая требует, чтобы закон контракта был законом страны; и б) может быть только один закон, который регулирует договор. Вероятность этого вывода, одинакового для других юрисдикций общего права, очень велика. Когда возник вопрос относительно регулирующего закона Договора, суд решил, что положения Договора могут регулироваться только одним законом. Поэтому, в настоящем случае Договор не может быть предметом как английского права, так и шариата. В дальнейшем суд постановил, что стороны имеют право выбирать регулирующее законодательство договора в соответствии с Римской конвенцией. Однако в данной конвенции говорится, что стороны могут выбирать только закон страны. Кроме того, судья постановил, что общая ссылка на закон Шариата в Договоре прямо не связана с намерением сторон использовать его как эксклюзивное управляющее право. В свете этого решения подразумевается обязательство договаривающихся сторон по структурированию шариатских контрактов в связи с нежеланием английских судов выбирать закон шариата в качестве регулирующего права договоров.

    Структурирование документов в соответствии с шариатом.

    Как следует из исламской экономической литературы, беспроцентные инструменты должны регулировать повышение уровня информированности и мобилизации финансовых ресурсов в исламской экономике. Это требование, которое вытекает из моральных предписаний, укорененных в Коране и Суннах, которые формируют эпистемологические источники Шариата. Шариат обращается к совместной форме системы распределения прибыли, которая может заменить финансовые инструменты на основе процентной ставки. Такие инструменты традиционно именуются распределением прибыли, или мудараба, а также исламским термином для продажи, когда продавец и покупатель договариваются об оценке на товар(ы), более известный как мурабаха. Современная мурабаха рассматривается в качестве важнейшего инструмента для способствования краткосрочного финансирования для потребительских и бизнес-требований. Она используется для финансирования предметов домашнего обихода, автомобилей, бизнес-оборудования и/или материалов. Она часто используется для репликации обычного соглашения по финансированию коммерческих операций. С ростом исламского банкинга с 1975 года Мурабаха стала «самым распространенным» исламским механизмом финансирования. Этот контракт иллюстрирует несколько методов, которые широко используются в разработке исламских финансовых операций. Сюда входят набор контрактов установленного образца, связывающий договор и применение takhayyur, которые вошли в систематическое использование при составлении Маджалла, завершенном в 1876 году. Принцип takhayyur был развернуто использован в своем значении, и доказал свою ключевую значимость в модернизации законодательных реформ во всем мусульманском мире. Эти инструменты и юридические приемы имеют определяющее значение для охвата всего диапазона финансовых структур. Однако, некоторые обязательства, содержащиеся в операциях Мурабаха, могут противоречить английскому статутному праву, а именно Закону о Продаже Товаров 1979 года и Закону о Недобросовестных Условиях Договора 1977 года. Эти законы не позволяют договаривающимся сторонам включать подобные пункты в свои контракты в зависимости от обстоятельств конкретной сделки. Кроме того, внутренняя английская промышленность столкнулась с рядом трудностей, обусловленных гибридной правовой структурой исламских финансовых контрактов. Тем не менее, дело Банка Шамиля приводит к выводу, что выбор регулирующего закона, который будет применяться к финансовым документам и степень применимости принципов шариата неизбежно возникают в тех случаях, когда исламская финансовая операция совершается между сторонами из нескольких юрисдикций (как светских, так и шариатских).

    Согласованность между юрисдикциями.

    В настоящее время английское право является наиболее распространенным выбором для регулирования споров, вытекающих из соглашений, придерживающихся исламских принципов. Некоторые из этих договоров не содержат никаких ссылок на исламское право и даже могут включать отказ от шариатской защиты, подразумевая, что в случае возникновения спора, стороны договорились отказаться от споров о недействительности соглашения в соответствии с законом шариата. Такие оговорки пытаются устранить так называемый риск шариата, термин, который известен в индустрии, как обозначающий риск невыполнения одной стороной контрактных обязательств и затем объявления целого контракта недействительным из-за несоответствия исламскому праву. Такой риск существует, несмотря на то, что международные юридические фирмы создали целые отделы, занимающиеся шариатскими финансовыми операциями. Тем не менее, нынешняя культура исламского финансирования либеральна, когда стороны только предполагают, что операция соответствует шариату, и договаривающиеся стороны не обязательно обладают знаниями об исламском праве.

    Следовательно, принципы исламского финансирования должны быть синхронизированы в макроструктуре английского права в целях сохранения согласия между юрисдикциями. Кроме того, очевидно, что финансовые услуги Соединённого Королевства не препятствуют исламской финансовой индустрии от одновременного развития как альтернативного финансового рынка. Например, отмена правительством двойного гербового сбора в 2003 году положила начало целому ряду новых видов деятельности в исламском финансировании, как например, возможность финансовым учреждениям предлагать планы собственности недвижимости на основании договора Мурабаха. Ранее эти операции облагались двойной госпошлиной: первый раз, когда недвижимость приобреталась банком, и затем, когда она была впоследствии продана клиенту с процентами.

    Английское правительство также способствовало функционированию партнерских отношений Мудараба и инвестиционных товариществ. Важной особенностью контрактов Мудараба является то, что они придают равное значение как финансовой стороне инвестиций, так и интеллектуальным инвестициям. В таких партнерствах сторона, обеспечивающие идеи и непрерывное обучение для бизнеса, рассматривается как в равной степени важная для предприятия. Распределение прибыли в таких транзакциях, как правило, не облагается налогом исламскими финансовыми институтами, так как дивиденды подвергаются невыгодному налоговому режиму. Правительство решило эту проблему, разрешив дивиденды Мудараба считать как проценты, уплаченные по кредитам путем проверки налогового вычета по этим дивидендам через поправку к Закону о Финансах 2005 года. Кроме того, правовые системы могут быть согласованы путем стандартизации исламских финансовых контрактов. Тем не менее, вопрос о стандартизации тесно связан с противоречивой дискуссией о кодификации Шариата в разных государствах. Частичное решение этой проблемы может быть достигнуто путем поощрения включения конкретных положений, как например, шариатские стандарты Аудиторских и Бухгалтерских Организаций для Исламских Финансовых Институтов (AAOIFI) в исламские финансовые контракты. До тех пор, пока эти положения достаточно конкретны, они могут работать как совокупность договорных условий, согласованных между сторонами. Кроме того, английские суды будут ссылаться на включенные стандарты в их интерпретации контрактов английского права, для достижения целей договаривающихся сторон. Поэтому детерминированность таких норм и стандартов способствует спокойному судебному толкованию.[4]

    Вывод

    Шариат представляет собой механизм, который регулирует все аспекты жизни мусульманина. Практикующий мусульманин обязан вести справедливую и чистую жизнь, чтобы достичь благочестия. В этом начинании его/ее доходы и расходы должны оставаться свободными от нечистых примесей (таких как, например, получение или выплату процентов). В противном случае это будет совершение греха. Поэтому необходимость исламского финансирования можно рассматривать как духовную потребность, а не экономическое удобство. Как следует из вышесказанного, многие трансграничные операции исламского финансирования, контракты регулируются английским правом, и английские суды явно имеют юрисдикцию принимать решения по спорам. Стагнирующий факт, что исламский договор финансирования, хотя и регулируется английским правом, должен соблюдать правила и положения принципов Шариата, для того, чтобы по праву вступить в силу в целях обеспечения справедливого равновесия, баланса и корреляции, существующей между двумя системами. Закон Шариата должен разработать отличительную корпоративную культуру, основной целью которой является создание коллективной морали и духовности, которая, в сочетании с производством товаров и услуг, поддерживает рост и продвижение исламского образа жизни, как цитируется в газете «The Pak Banker».


    [1] Arbitration Between Petroleum Dev. (Trucial Coast) Ltd. v. Sheikh of Abu Dhabi, 1 INT'L & COM P. L. Q. 247, 250–51 (Sept.1951).

    [2] 1 WLR 1784 (CA 2004) (UK)

    [3] European Convention 80/934/ECC on the Law Applicable to Contractual Obligations (Rome Convention) [1980]

    [4] Jonathan G. Ercanbrack- The Law Of Islamic Finance In the United Kingdom (supra)

     

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    Thu, 28 Jul 2016 05:00:00 GMT
    <![CDATA[Совместные предприятия в Сингапуре]]> Совместные предприятия в Сингапуре

    "Если вы не ищете союзников и помощников, то будете изолированы и слабы."

    Сун Цзу, Искусство войны

     

    Более 10,000 совместных предприятий и многие другие договорные союзы были созданы в последние несколько лет. На основе исследований крупнейшие совместные предприятия составляют более 900 биллионов долларов совокупного дохода. Совместные предприятия (обычно именуемые СП) играют ключевую роль, когда компания или организация намерена расширить свои бизнес операции и требует поддержки с точки зрения ресурсов, опыта или притока капитала.  

    С точки зрения преимуществ, любая форма – долевое СП, где партнеры выделяют ресурсы для создания новой компании и более простые контрактные союзы, где партнеры сотрудничают без создания новой компании – играют большую роль в плане снижения рисков на неустойчивом рынке, деление расходов по крупным инвестициям и привнесение нового предпринимательского духа в развивающийся бизнес. Совместные предприятия часто называют бизнес браком по расчету на юридическом жаргоне. Такое сочетание ресурсов и усилий связывает стороны в более или менее крепкий юридический союз с правами и обязанностями в отношении друг друга.

    Консалтинговая фирма Нью Йорка МакКинси провела опрос на тему СП, где выяснилось, что 68 процентов респондентов ожидают увеличение деятельности своих компаний в отношении совместных предприятий, и 59 процентов ожидают увеличения в отношении слияний и поглощений. И это неудивительно, чем больше опыта компании имеют с СП, тем более вероятно их дальнейшее использование.

    Тенденции СП в Сингапуре

    Сингапур является процветающим бизнес пространством, в частности поощряющим новые СП и альтернативные бизнес структуры для содействия торговле и коммерции. Несколько заметных сделок по созданию СП, получивших большое внимание с точки зрения регулирования, будут обсуждаться ниже.

    Поставщик питания на борт самолета SATS запускает новое туристическое ретейл совместное предприятие, одновременно с запуском нового предприятия совместно с Wilmar International в области поставки продуктов. Yihai Kerry Investments, дочерняя компания Wilmar International, заключила два соглашения о совместных предприятиях (ССП) с компанией Singapore Food Industries (SFI) о поставке питания на китайский рынок. SFI это дочерняя компания SATS, поставщика наземного обслуживания и услуг питания на борту, которая зарегистрирована на фондовой бирже Сингапура. До этого SATS вошел в другое СП вместе с крупным продовольственным гигантом. Вместе эти СП обеспечили международную представленность, приток капитала, технологии и гибкость в конкурентной сфере продуктов питания, таким образом снижая необходимость аутсорсинга в долгосрочной перспективе.

    В авиационном секторе авиакомпания Singapore Airlines вступила в совместное предприятие с Lufthansa, для того чтобы предоставить своим пассажирам доступ в Австрию, Бельгию, Германию и Швейцарию через Франкфурт, Мюнхен и Цюрих. Lufthansa и SWISS будут использовать совместные рейсы на Singapore Airlines и Silk Air по направлениям в Юго-Восточную Азию и Юго-Западную часть Тихого океана. Сотрудничество на совместных рейсах перевозчиков, как ожидается, будет расширено засчет дополнительных направлений.

    Сингапур – иностранное владение и контроль

    Примеры, изложенные выше, демонстрируют, как экономика Сингапура заинтересована в продвижении своих нынешних интересов бизнеса и прорыва ограничений, где это возможно. Как правило, нет ограничений на уровне иностранного владения сингапурских компаний или предприятий (включенных или не включенных в листинг биржи). Ограничения на иностранное владение существуют только в очень немногих областях бизнеса. Например, иностранцы не могут владеть определенными типами жилой недвижимости (например, отдельными одноквартирными домами, двухквартирными домами и домами рядовой застройки), и также есть ограничение в 49 процентов на владение телекомпаниями. Сингапур подписал ряд двусторонних инвестиционных договоров и двусторонних соглашений о свободной торговле (FTAs) с 24 торговыми партнерами, которые играют важную роль в облегчении инвестиционных правил. Двусторонние соглашения о свободной торговле включают Соглашение Китай-Сингапур 2008 г., Соглашение Индия-Сингапур о всестороннем экономическом сотрудничестве 2005 г. (СЕСА), Соглашение о свободной торговле Сингапур-Австралия 2003 г. (который был пересмотрен в 2011 г.), Соглашение США-Сингапур о свободной торговле 2003 г. (USSFTA) и Соглашение между Японией и Республикой Сингапур 2002 г. по экономическому партнерству.

    ОСНОВНЫЕ ПОЛОЖЕНИЯ

    A.     Защита миноритарных акционеров

    Одной из форм обязательной защиты, предоставляемой акционерам, не имеющим контрольного пакета акций, находит свое отражение в необходимости специальных разрешений от них (то есть принятых 75 процентами большинства) для определенных корпоративных решений, таких как изменение состава компании, сокращения акционерного капитала и закрытия.

    Другой формой поддержки миноритариев является возможность, отраженная в разделе 216 Закона о Сингапурских Компаниях, о ликвидации компании там, где это «справедливо и соответствует интересам сторон», в соответствии со статьей 254 Закона о Сингапурских Компаниях. В соответствии со статьей 216 (1), любой акционер компании (независимо от того, зарегистрирована ли компания на бирже или нет), может обратиться в суд по вопросам (а) ведения дел в компании, или осуществления полномочий директоров, репрессивных по отношению к одному или нескольким членам компании (включая его самого) или игнорирования их интересов; или (б) действия компании, которые были произведены, или вынесены как угроза, либо какое-то решение было принято или предложено, которое несправедливо дискриминирует или иным образом наносит ущерб одному или нескольким акционерам (в том числе самому себе).

    B.     Закон о конкуренции и контроле за слияниями

    Закон о конкуренции Сингапура 2004 г. запрещает антиконкурентные соглашения, злоупотребление доминирующим положением на рынке, а также слияния, приводящие к существенному ослаблению конкуренции в рамках любого рынка в Сингапуре. Создание совместного предприятия, которое будет выполнять на постоянной основе все функции автономной экономической единицы, будет рассматриваться как «слияние», где совместный контроль между акционерами может быть установлен на основании характера и объема защиты миноритариев. Несмотря на общий запрет антиконкурентных слияний, нет обязательного требования для извещения о слиянии в Сингапуре. Стороны могут выполнить свою собственную оценку или добровольно уведомить о своем объединении для рассмотрения и утверждения Комитета по конкуренции Сингапура (CCS) до или после его завершения.

    C.      Оффшорные структуры.

    Система налогообложения Сингапура и его инвестиционная среда являются привлекательными для иностранных инвесторов. Оффшорные структруры разрешены в Сингапуре, и они действительно помогают получить удобный доступ к рынку и избежать налоговых препятствий, в отличие от других юрисдикций

    СЛОЖНОСТИ

    В то же время существуют многочисленные проблемы, которые компании не в состоянии преодолеть при создании совместных предприятий, и которые являются критически важными в любом альянсе или СП – это планирование выхода на рынок и выполнение. Несмотря на то, что большинство компаний дисциплинированно подходят к присоединению и поглощению, они редко выделяют достаточный объем ресурсов для запуска предприятий или альянсов аналогичных размеров. Ошибки, допущенные на этапе запуска часто разрушают вплоть до половины ценности создания предприятия. Когда СП запускается, не уделяется должного внимания подписанию меморандума о намерениях и первым 100 дней работы. Этот недостаток внимания может привести к стратегическим конфликтам между союзными компаниями, тупику управления и потерянной операционной синергии.

    ЗАКЛЮЧЕНИЕ

    Основной вывод, который можно сделать из Сингапурской модели, это растущая зависимость от такой формы бизнеса, как совместное предприятие. Отношения между партнерами в СП определяется в тексте черным по белому, а также тем, что находится между строк.

    Поэтому очень важно для инвесторов осознать значимость правильно составленного договора о совместном предприятии. Ранее в этом году, юридическая компания STA объявила о своем присутствии в Сингапуре на фоне растущего интереса со стороны наших существующих клиентов. Мы будем рады оказать помощь в консультировании по законам Сингапура. 

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    Wed, 08 Jun 2016 01:40:00 GMT